Opinion
E064958
01-10-2018
NAKITA RICE, Plaintiff and Appellant, v. FCA USA LLC et al., Defendants and Respondents.
The Figari Law Firm and Barbara E. Figari for Plaintiff and Appellant. Sedgwick, Robert D. Eassa and Delia A. Isvoranu for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. CIVDS1410279) OPINION APPEAL from the Superior Court of San Bernardino County. Bryan Foster, Judge. Affirmed in part and reversed in part with directions. The Figari Law Firm and Barbara E. Figari for Plaintiff and Appellant. Sedgwick, Robert D. Eassa and Delia A. Isvoranu for Defendants and Respondents.
I. INTRODUCTION
Plaintiff and appellant, Nakita Rice, appeals from the judgment in favor of defendants and respondents, FCA USA LLC (Chrysler) and James Parker. Chrysler employed Rice as an operations manager and then a warehouse supervisor at one of its plants. Parker was the plant manager during her time there. After Chrysler terminated her in 2014, Rice brought this lawsuit alleging a host of employment-related causes of action. The trial court granted defendants' motion for summary judgment on all causes of action.
When Rice filed her complaint, FCA USA LLC was known as Chrysler Group LLC. For simplicity's sake, we will continue to refer to FCA USA LLC as Chrysler.
Because we conclude that defendants were entitled to summary adjudication on some but not all the causes of action, we reverse the judgment and direct the trial court to enter an order denying in part and granting in part defendants' motion. More specifically, Chrysler proffered significant evidence that it changed Rice's position, suspended her, and then terminated her for legitimate, nondiscriminatory, and nonretaliatory reasons. Rice did not respond with evidence from which a trier of fact could reasonably infer pretext or discriminatory animus. Chrysler was thus entitled to summary adjudication on the causes of action for retaliation, racial discrimination, and wrongful termination in violation of public policy. Defendants also showed a lack of evidence to support essential elements of her causes of action for intentional infliction of emotional distress (IIED) and violations of the Ralph Civil Rights Act (Ralph Act) (Civ. Code, § 51.7), entitling them to summary adjudication on these as well. And, as to the cause of action for gender discrimination, Chrysler demonstrated that it was entitled to summary adjudication because Rice failed to exhaust her administrative remedies. But the causes of action for sexual harassment, failure to prevent harassment, and negligent retention of unfit employees survive defendants' motion. We disagree with defendants that Rice failed to exhaust her administrative remedies with respect to sexual harassment, and Chrysler did not carry its burden of demonstrating the other causes of action fail as a matter of law.
II. FACTS AND PROCEDURE
A. The Allegations of Rice's Complaint
Rice filed suit against Chrysler and Parker in July 2014. Her complaint alleges as follows:
Chrysler employed Rice from November 2010 to June 2014. Parker was the Chrysler plant manager and Rice's supervisor. During her employment, Chrysler demoted Rice, gave her a poor evaluation, and threatened her with termination on numerous occasions. Parker and his subordinates subjected her to almost daily harassment, including calling her a "'bitch'" and a "'fucking bitch.'" Rice filed a charge of discrimination (administrative complaint) with the Equal Employment Opportunity Commission (EEOC) and California Department of Fair Employment and Housing (DFEH). She later complained in writing to Chrysler's human resources department and the chief executive officer. Chrysler took no action in response to her complaints, and she continued to suffer a hostile and discriminatory work environment. After these complaints, in June 2014, Chrysler suspended Rice for "'performing and behaving in a manner that [was] inconsistent with the Company's expectations for its leaders.'" It later terminated her for violating "'Chrysler's Standards of Conduct by engaging in inappropriate, disruptive and unruly conduct.'" Rice then filed a second administrative complaint with the EEOC and DFEH.
The complaint alleges 10 causes of action: (1) retaliation under the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.); (2) sexual harassment/hostile work environment under the FEHA; (3) failure to prevent retaliation, discrimination, and harassment under the FEHA; (4) negligent retention of an unfit employee; (5) gender-based violence under the Ralph Act; (6) IIED; (7) wrongful termination in violation of public policy; (8) failure to provide rest periods (Lab. Code, §§ 226.7, 512); (9) discrimination based on race and gender under the FEHA; and (10) defamation. B. Defendants' Motion for Summary Judgment or Summary Adjudication
All further statutory references are to the Government Code unless otherwise indicated.
"There are two recognized categories of sexual harassment claims. The first is quid pro quo harassment, where a term of employment or employment itself is conditioned upon submission to unwelcome sexual advances. [Citation.] The second, and the one at issue in this case, is hostile work environment, 'where the harassment is sufficiently pervasive so as to alter the conditions of employment and create an abusive work environment.'" (Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, 516-517.)
Rice named both defendants in the causes of action for sexual harassment/hostile work environment, Ralph Act violations, IIED, and defamation, but only Chrysler in the remaining causes of action.
Defendants moved for summary judgment or, in the alternative, summary adjudication, arguing: (1) Rice had failed to exhaust administrative remedies on her gender/sex-based causes of action; (2) her retaliation, discrimination, and wrongful termination causes of action failed because Chrysler had legitimate reasons for its decisions unrelated to Rice's race or complaints; (3) the Chrysler decision makers were the same race as Rice (African-American), dispelling any inference of racial discrimination; (4) the cause of action for failure to prevent retaliation, discrimination, and harassment necessarily failed because the underlying causes of action failed; (5) the cause of action for negligent retention lacked legal and factual merit; (6) Rice had failed to properly plead a Ralph Act cause of action, and besides, there was no evidence Chrysler had engaged in actionable conduct; and (7) Rice had no evidence of extreme or outrageous conduct to support IIED. In the remainder of this subpart, we set forth the pertinent evidence adduced by the parties on the summary judgment motion.
Defendants advanced arguments against the defamation and rest break causes of action as well, but because Rice has not challenged the court's ruling granting summary adjudication on these claims, we need not discuss these issues.
1. Rice's Performance Reviews, Her Performance Improvement Plan, and Continuing Performance Issues
Rice began working at Chrysler's Ontario, California facility in November 2010 as an operations manager. She oversaw the warehouse, supervised multiple employees, prepared and provided input into performance reviews, made hiring and disciplinary recommendations, gave employees directions and assignments, and set schedules.
In Rice's performance review for 2011, her supervisor gave her ratings of "low" in seven out of 16 categories. She received one "high" rating and eight "medium" ratings in the remaining categories.
Parker has been the plant manager of Chrysler's Ontario facility since the summer of 2012, at which time he became Rice's supervisor. She was one of two operations managers who reported to him. (The other operations manager was Yvonne Eady.) Parker began to notice issues with Rice's communications and leadership very soon after taking over. For instance, she did not seem to understand certain work systems or processes, even though she had been an operations manager for nearly two years.
Parker received more complaints about Rice than any other employee. Other operations managers, multiple other managers and supervisors, multiple hourly employees, and union leadership (United Automobile Workers) all complained about Rice's poor communication, offensive tone and demeanor, gossiping, attempts to shift blame, creating conflict with peers and subordinates, lack of leadership, and lack of knowledge about processes and systems. Parker also personally observed these performance issues.
In January 2013, Parker gave Rice her performance review for 2012. He rated her performance "low" in nine out of 16 categories, high in one category, and "medium" in the remaining categories. When he went over the performance review with her, he advised her that she needed to have a more positive attitude, develop her leadership skills, be receptive to others' input, develop better relationships with others, improve in completing tasks and meeting targets, and improve her knowledge of the work so that she could better mentor employees. He also advised her that supervisors and employees had complained about how she spoke to them. Her overall leadership rating was "low," while her overall performance rating was "medium."
After the 2012 performance review, Parker continued to receive many complaints about Rice and continued to observe performance issues with her. Union employees in particular filed several complaints and grievances against her. This led to difficulties in disciplining the union employees, who used Rice's conduct to justify their own conduct and argued that if a manager could engage in the behavior she exhibited, they should not face discipline for lesser conduct.
In late February 2013, Parker placed Rice on a performance improvement plan (PIP). The PIP identified an unacceptable quality or quantity of work, inconsistent behaviors, and insufficient knowledge or experience as the reasons for implementing the PIP. As far as work results, the warehouse—for which Rice was responsible—had significantly missed targets. As far as her behavior, Parker felt she did not have effective relationships with her peers and subordinates because of poor communication and inappropriate or disrespectful comments. And as far as her knowledge and experience, Parker felt she still lacked knowledge of operations, despite having been a manager for over two years, and she had not made any meaningful process changes to improve warehouse performance. The PIP explained that if Rice failed to complete it or show significant improvement by the end of it, she would be subject to disciplinary action, including possible discharge. Parker met with Rice to review the PIP in February 2013, and they met again in March, April, and August 2013 to review her progress.
At the March 2013 interim review, Parker indicated Rice was achieving satisfactory progress and demotion or discharge was not required, but she still needed to improve her overall knowledge of the operations and improve her communications skills. At the April 2013 meeting, Parker indicated she was not achieving satisfactory results and she needed to improve in a number of areas, including multitasking, developing better relationships with her peers and subordinates, not spreading rumors on the floor, communicating better when she was unsure of processes, and motivating her subordinates to complete their assignments and follow her instructions.
At the August 2013 PIP meeting, Parker again indicated Rice was not achieving satisfactory results or demonstrating acceptable behavior, and she was also not acquiring the knowledge or experience she needed. In the six months she was on the PIP, she had failed to improve in key areas—communication, leadership, developing effective relationships with peers and subordinates, meeting targets and deadlines, and gossiping or spreading rumors about other employees. Parker concluded that she had failed to successfully complete the PIP and "special actions . . . (. . . up to and including demotion or discharge)" were required.
In late August 2013, Parker and two employees from the human resources department (Meredith Hall and Kathy Pulliam) decided to change Rice's position from operations manager to warehouse supervisor. They felt as a warehouse supervisor Rice could continue to learn the various roles in the warehouse while improving her operational and leadership skills. Her pay, benefits, and job duties did not change. She continued to supervise employees, though it was a smaller group than what she managed as operations manager. As she acknowledged at her deposition, it was essentially a job title change, with the only difference being the number of people under her management. According to Parker, the decision to change Rice's job had nothing to do with her race or gender and was not in retaliation for any complaints.
Rice began reporting directly to the other operations manager, Eady, when Rice became a warehouse supervisor in August 2013. Beginning in November 2013, Rice reported to Jimmie Bowers, whom Chrysler had hired as the second operations manager. Parker knew Bowers from having previously worked with him at General Motors for three years.
The operations managers kept Parker informed of ongoing performance issues with Rice, and Parker continued to observe some issues personally. While Rice reported to Eady and even after she reported to Bowers, Eady met with Rice on an almost weekly basis to discuss how Rice could improve her relationships with others and develop as a supervisor. Eady received several complaints from supervisors and hourly employees about Rice's conduct, tone, and demeanor. Parker and Eady prepared Rice's 2013 performance review, and Eady went over it with Rice. Rice received "low" ratings in 11 of the 16 categories and "medium" ratings in the remainder. Eady advised Rice that she needed to improve in a number of areas, including not creating conflict with her peers, subordinates, and upper management, communicating effectively with these groups and union leadership, spending more time validating information before providing inaccurate information to employees, taking accountability for her performance, and improving her teamwork.
As Rice's manager, Bowers also noticed problems with her performance very soon after he started in November 2013 and through May 2014. Within a month of taking over, he found errors in the work performed by his predecessor and discovered Rice had done the work in question while she was an operations manager. He also received complaints from supervisors and hourly employees regarding Rice's poor communication, tone, and demeanor, and observed these issues himself. He was concerned about her relationship with her team and advised her to find a way to work successfully with them. He observed that she took time off on multiple occasions without properly recording the time, permitted a union representative to see a confidential e-mail between Bowers and Rice, and did not fulfill her duties and attempted to blame other employees for it. These issues occurred in January, February, March, April, and May 2014. By early May 2014, Bowers had documented a number of conversations with Rice about her performance and reported to human resources that Rice was "very unreliable as a supervisor." He recommended at least a three-day suspension without pay because he had "counseled her many times" in the past few months, and she had "not shown any improvement in her job performance or her willing [sic] to do her job to the best of her ability."
In addition, the union filed grievances against Rice in January and June 2014. The January 20, 2014, grievance asserted Rice had left the facility and employees unsupervised for two and a half hours against company safety rules. The union demanded that Rice "be swiftly and severely punished for her insensible[,] neglectful error" and that her actions be "considered automatic grounds for termination." The grievance also noted employees had expressed "numerous documented and verbal concerns regarding [Rice]'s managing inadequately." Chrysler did not terminate Rice but counseled her.
The June 11, 2014, grievance asserted that Rice had violated the company's standards of conduct by falsifying documents. Company policy required the union committeeman and supervisor for each shift to jointly perform a safety walk and document any issues at the beginning of the shift. On the day in question, it appeared Rice had performed the safety walk alone and filled out documents falsely indicating the union committeeman had performed the walk with her. When the union committeeman discovered this, he denied being present for the walk and filed the grievance.
Parker and human resources (Hall and Hall's supervisor, Kelly Tolbert) decided to suspend Rice with pay in June 2014, while they decided what sort of disciplinary action was appropriate for her ongoing performance issues. Parker estimated that he had at least 40 to 50 "coaching sessions" with her, over the time period he managed her. He and human resources felt it necessary to immediately remove Rice from the workplace because of her conflicts with union employees, including the most recent grievance. According to Parker, they ultimately decided that, because of Rice's negative performance reviews for 2012 and 2013, her unsuccessful PIP, and the continued issues after her move to warehouse supervisor, Chrysler had to terminate her. Hall had no "direct knowledge" of Rice's performance issues or complaints against her, other than what Eady, Bowers, and Parker relayed to her. Tolbert relied on Parker and Hall to provide her information about Rice's performance.
The human resources employees were not in Ontario, California but at Chrysler's offices in Michigan.
Before deciding to terminate Rice, Hall and Tolbert consulted with the director of Chrysler's corporate diversity office (Georgette Dillworth). They consulted the corporate diversity office because Rice fell into a protected class, and their standard processes dictated that the corporate diversity office understand and agree that human resources's proposed action was appropriate in such cases. Rice's termination became effective on June 29, 2014. Her termination letter from Hall stated that she was suspended for "performing and behaving in a manner that [was] inconsistent with the Company's expectations for its leaders," and further, she had "violated Chrysler's Standards of Conduct by engaging in inappropriate, disruptive and unruly conduct, as well as failing or refusing to follow instructions provided by your management."
Parker, Bowers, Eady, and Hall averred no action was taken based on Rice's race or gender; her PIP, move to warehouse supervisor, suspension, and termination "were based entirely on her history of performance and behavioral deficiencies." Parker and Hall are both African-American, like Rice. Rice did not think that Parker and Eady wanted her to fail, and she occasionally thanked Bowers for listening to her and supporting her.
Rice acknowledged that she had conflicts with many people in the workplace and had a number of disagreements with the union. But she argued this was not unusual. Bowers received at least five complaints a week from union employees. They sometimes complained about or had disagreements with employees other than Rice. For instance, union members complained that one supervisor was on the loading dock when they wanted her in the office. And, Parker received complaints that Bowers was overly harsh with union employees and possibly cursed when he got into an argument with them. Parker did not put Bowers on a PIP after this incident, but it generally influenced his evaluation of Bowers's leadership skills in his performance review for 2014. Parker characterized Chrysler's Ontario facility as "one of the tougher ones" he had worked in because of the union culture there, which was "pretty bad" or "pretty extreme."
2. Rice's Complaints to Her Supervisor, Human Resources, and Administrative Agencies
Chrysler has official policies prohibiting discrimination, harassment, and retaliation. It trained Rice's supervisors on these policies and appropriate workplace conduct. These policies provide that employees should report violations of the policies to human resources, the corporate diversity office, or management. They also state that Chrysler will investigate "all discrimination and harassment complaints in a timely and impartial manner."
On January 15 or 16, 2014, Rice complained to Bowers that another employee, Tony Roseborough, called her a "fucking bitch." Bowers met with Roseborough the same day that Rice complained. The union representative, Tyrone Owens, was also present. At the meeting, Roseborough denied cursing at Rice, and while Owens said he had overhead the interaction between the two, he did not hear Roseborough curse at Rice. Owens also told Parker about an "altercation" between Roseborough and Rice. Initially, Owens reported to Parker that Roseborough called Rice a "bitch" during the altercation. Owens submitted a written statement in late January 2014, but the statement did not state that Roseborough called Rice any names. Roseborough, Rice, and several other employee-witnesses submitted written statements in late January as well. None of the other witnesses reported hearing Roseborough call Rice a "bitch," and Roseborough was not disciplined. Besides Rice, all the witnesses reported that, after Rice had criticized some of Roseborough's work, he became upset and said her criticism was "bullshit" or "bull." Parker acknowledged that it was very rare for union members to make statements that harmed other union members. Bowers also acknowledged that union members "stick together" and stand up for one another.
Rice also complained to Bowers in 2014 that another employee, Mike Carter, raised his voice to her and lunged at her. Bowers met with Carter and the union representative—again, Owens—that same day. Carter said he normally talks loud, but he denied lunging at her. The only other witness who came forward was Owens, who said Carter "got loud because [he] talks loud," but he also denied that Carter lunged at her. Carter was "put on notice" for the incident.
Parker himself witnessed an incident between Owens and Rice during a meeting. Parker could not recall the conversation precisely, but he thought they were negotiating something, and Owens suggested that he would agree in exchange for Rice's phone number. Parker told Owens the request was inappropriate and warned him that such conduct should not occur in the future.
Travis Michael is an equal employment opportunity advisor in Chrysler's corporate diversity office. Like Rice, he is also African-American. In January 2014, Hall requested that Michael conduct an investigation into Rice's complaints of a hostile work environment. Specifically, Hall recalled that Rice had complained about a hostile work environment when an employee referred to her as a "bitch." Tolbert also contacted Michael and his supervisor in the corporate diversity office to confirm they were conducting an investigation into Rice's claims. Hall asked Rice whether there were other instances of a hostile work environment, and Rice provided more instances of what she considered to be some. Hall also asked Rice to forward any further relevant information to Michael in the corporate diversity office. Michael did receive further e-mails from Rice regarding conduct she perceived as improper.
Michael's investigation included reviewing dozens of e-mails from Rice, reviewing e-mails and documentation from Parker and Bowers, speaking to Hall and reviewing more e-mails and documentation that she forwarded, and interviewing Parker. He attempted to reach Rice by phone to interview her on multiple occasions, but he was unable to reach her, and so they communicated exclusively by e-mail. The record does not contain any written report of Michael's investigative findings.
On or around May 13, 2014, Rice sent an e-mail to Michael in which she asserted that she had sent him 14 previous e-mails containing complaints (two in January, six in February, three in March, one in April, and two in May). These 14 other e-mails do not appear in the record. In the May 13 e-mail, she asserts that Michael did not respond to her previous e-mails, and so she escalated her complaints to others within the Chrysler organization, including Michael Keegan, senior vice-president, human resources (the highest ranking human resources employee in the company).
Michael discussed his investigation and findings with his supervisor, Dee Williams, who is also African-American. Michael could not substantiate any harassment, discrimination, or retaliation against Rice, or any violations of Chrysler's discrimination and harassment prevention policy. On or around June 6, 2014, Michael and Williams drafted and sent a letter to Rice setting forth Michael's conclusion.
Rice filed her first administrative complaint with the EEOC and DFEH in February 2014. In it, she asserted discrimination based on race and retaliation between August 22, 2013 and February 11, 2014. The administrative complaint alleged Parker demoted her, gave her a poor evaluation, gave her "the least amount of responsibilities," and threatened her with termination. She asserted she was being discriminated against because of her race and retaliated against for participating in protected activity.
Rice filed her second administrative complaint with the EEOC and DFEH in July 2014. In this one, she also asserted discrimination based on race and retaliation. The administrative complaint alleged that she complained to Hall in May 2014, and in June 2014, Tolbert suspended her, then Hall terminated her. It also alleged she was suspended and terminated based on race and in retaliation for protected activity. The DFEH issued her right-to-sue letters after she filed both administrative complaints. C. The Court's Order Granting Summary Judgment
The court entered an order granting summary judgment for Chrysler and Parker in which it incorporated its oral tentative ruling at the hearing on the motion. The court held Rice had failed to exhaust administrative remedies on the gender discrimination and sexual harassment causes of action because the administrative complaints she filed with the DFEH did not identify or provide notice of these claims. As far as the causes of action for racial discrimination, retaliation, and wrongful termination, the court held Chrysler had met its initial burden of showing a legitimate, nondiscriminatory reason for Rice's termination. It concluded Rice, by contrast, had not proffered evidence to support a reasonable inference of pretext. And because these underlying causes of action failed, the court held the causes of action for negligent retention and failure to prevent retaliation, discrimination, and harassment also failed. As to IIED, the court concluded Rice had no evidence of outrageous conduct, and as to the Ralph Act cause of action, she had no evidence of the requisite intent.
The court overruled all of Rice's objections to defendants' evidence and sustained two of defendants' objections. The court sustained defendants' objection to Rice's May 13, 2014, e-mail, in which she asserted that she had sent 14 previous e-mail complaints to Michael. Defendants asserted this e-mail was inadmissible hearsay and lacked foundation. The court ruled the e-mail was inadmissible to show Rice made those prior complaints or to show the substance of any prior complaints, though it was admissible for the limited purpose of showing the recipients were aware of the May 13 e-mail. It also sustained defendants' objection to testimony from Bowers referencing complaints from two union members that another supervisor was an "asshole." The court entered judgment for Chrysler and Parker in December 2015.
III. STANDARD OF REVIEW
A defendant moving for summary judgment "must present evidence sufficient to show he or she is entitled to judgment as a matter of law." (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 889.) The defendant must demonstrate "that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action." (Code Civ. Proc., § 437c, subd. (p)(2).) "Once the defendant meets that burden, the burden shifts to the plaintiff to present evidence establishing a triable issue exists on one or more material facts." (Carlsen v. Koivumaki, supra, at p. 889; Code Civ. Proc. § 437c, subd. (p)(2).) A triable issue of material fact exists if the evidence and inferences from it would allow a reasonable juror to find the underlying fact in favor of the plaintiff. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)
We review an order granting summary judgment de novo, "considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained." (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 (Guz).) We liberally construe the opposing party's evidence while strictly scrutinizing the movant's evidence and resolve any evidentiary doubts or ambiguities in the opposing party's favor. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.)
Rice has made no reasoned attempt to show the trial court erred in sustaining two of defendants' evidentiary objections. We therefore do not consider the evidence that the trial court excluded.
IV. DISCUSSION
A. Exhaustion of Administrative Remedies: Sexual Harassment and Gender Discrimination Causes of Action
Rice contends she exhausted her administrative remedies. But the court held otherwise, ruling her administrative complaints did not identify or provide notice of her causes of action for sexual harassment and gender discrimination. We agree with respect to gender discrimination, but not with respect to sexual harassment, which Rice alleges is based on a hostile work environment.
Before bringing a civil suit under the FEHA, an aggrieved employee must exhaust the FEHA's administrative remedies by filing an administrative complaint with the DFEH and obtaining a right-to-sue letter from the agency. (§§ 12960, subd. (b), 12965, subd. (b); Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1724.) The DFEH shall issue a right-to-sue letter if, after receiving the administrative complaint, it fails to resolve the case or file an accusation against the employer within 150 days. (§ 12965, subd. (b); Okoli v. Lockheed Technical Operations Co. (1995) 36 Cal.App.4th 1607, 1613.) The failure to exhaust administrative remedies is a jurisdictional defect providing grounds for summary judgment in favor of the defendant. (Martin v. Lockheed Missiles & Space Co., supra, at p. 1724.)
To exhaust administrative remedies as to conduct made unlawful by the FEHA, the administrative complaint must identify that conduct. (§ 12960, subd. (b) [requiring the administrative complaint to "set forth the particulars" of the alleged unlawful practice]; Martin v. Lockheed Missiles & Space Co., supra, 29 Cal.App.4th at p. 1724.) But the words of the administrative complaint "'"need not presage with literary exactitude the judicial pleadings which may follow."'" (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 267.) Any subsequent civil action may include matters "'like or reasonably related'" to the allegations of the administrative complaint. (Okoli v. Lockheed Technical Operations Co., supra, 36 Cal.App.4th at p. 1615.) Allegations in the administrative complaint "'serve no purpose other than to get an [administrative] investigation in motion.'" (Jones v. Los Angeles Community College Dist. (1988) 198 Cal.App.3d 794, 810.) As such, claims may be considered "like" or "reasonably related" to each other if the uncharged claims could reasonably be expected to grow out of the DFEH's investigation of the charged claims. (Nazir v. United Airlines, Inc., supra, at p. 267; Okoli v. Lockheed Technical Operations Co., supra, at p. 1615.) Accordingly, we construe an administrative complaint liberally in favor of the plaintiff—who is often completing the document without the assistance of counsel—and in light of what a reasonable investigation by the agency might disclose. (Nazir v. United Airlines, Inc., supra, at pp. 267-268.)
Applying these principles, we conclude the exhaustion doctrine bars Rice's cause of action for gender discrimination but not the one for sexual harassment. The material facts are undisputed, inasmuch as her two administrative complaints speak for themselves. In both administrative complaints, she checked the boxes for discrimination based on race and retaliation, but she did not check the box for "sex" discrimination. (There was no box labeled "harassment" to check.) In the first complaint, in the space for providing "particulars," she alleged that Parker subjected her to "different terms and conditions of employment," such as demotion, a poor evaluation, "the least amount of responsibilities," and a threat of termination. She further stated that she was "being discriminated against because of my race (African-American/Black) and retaliated against for participating in a protected activity . . . ." In the second complaint's space for "particulars," she alleged that she complained to Hall around May 2, 2014. She further alleged that she was suspended and terminated based on her race, and she was "retaliated against while participating under a protected activity
These charges explicitly reference only racial discrimination and retaliation, and Rice's charge of gender discrimination is not like or reasonably related to these explicit charges. Rice specifically excluded gender discrimination as a basis for her administrative complaint by failing to check the box for sex discrimination and making no other assertion of gender discrimination in the "particulars" section. In filing the administrative complaint in this manner, Rice signaled that the DFEH need not investigate whether the reasons for the alleged adverse employment actions were gender based. An investigator would be looking for signs of racial bias, not gender bias. We would not, therefore, expect a charge of gender discrimination to grow out of a reasonable investigation into her charges of racial discrimination. (See Okoli v. Lockheed Technical Operations Co., supra, 36 Cal.App.4th at p. 1615 ["'when the difference between the charge and the complaint is a matter of adding an entirely new basis for the alleged discrimination,'" the uncharged discrimination "'is neither "like or related to" nor likely to be discovered in a "reasonable" investigation of'" the charged discrimination].)
This is not the case with the cause of action for sexual harassment. Rice's second administrative complaint alleged that she had complained to Hall in human resources in May 2014 and faced retaliation after that. A reasonable investigation into these allegations would ask about the subject of Rice's complaint to Hall. The admissible evidence below did not disclose the particulars of any complaint on May 2, 2014, but the evidence did disclose that Rice had complained to Hall of a hostile work environment earlier, in January 2014. Even assuming Rice did not complain of a hostile work environment on May 2, any reasonable investigation would have led to this first complaint of a hostile work environment, made only months earlier to the same person. Thus, Rice's claim of sexual harassment/hostile work environment was reasonably related to the allegations of the administrative complaint that she had complained to Hall. There was no failure to exhaust administrative remedies as to this cause of action. (Baker v. Children's Hospital Medical Center (1989) 209 Cal.App.3d 1057, 1060-1061, 1064-1065 [holding an investigation into the plaintiff's administrative charges of racial discrimination would have led to his uncharged claims of harassment and other unlawful conduct].)
Defendants moved for summary adjudication on the sexual harassment cause of action based only on the exhaustion doctrine. They did not advance any other defenses to it or attempt to show that "one or more elements of the cause of action . . . cannot be established." (Code Civ. Proc., § 437c, subd. (p)(2).) Thus, we have no other basis on which to affirm the order granting summary adjudication of this cause of action, and we must reverse the trial court's order in this respect. B. Retaliation, Racial Discrimination, and Wrongful Termination Causes of Action
The court granted summary adjudication on Rice's retaliation, racial discrimination, and wrongful termination causes of action on the ground that Chrysler had shown a legitimate, nondiscriminatory reason for its actions. Rice contends there was a triable issue of material fact about whether these reasons were pretextual. We agree with the trial court. Chrysler demonstrated legitimate reasons for its actions, and Rice's responsive evidence did not show a triable issue of material fact.
1. General Principles
The FEHA makes it unlawful for an employer, because of a person's race, to discharge the person or to discriminate against the person in the "terms, conditions, or privileges of employment." (§ 12940, subd. (a).) Generally, a prima facie case of discrimination consists of evidence that (1) the plaintiff was a member of a protected class, (2) the plaintiff was qualified for the position he or she sought or was performing competently in his or her position, (3) the plaintiff suffered an adverse employment action, like termination or demotion, and (4) some other circumstances suggesting discriminatory motive. (Guz, supra, 24 Cal.4th at p. 355.)
An employer moving for summary judgment in this context must present admissible evidence showing that one or more elements of the prima facie case is lacking, or that the employer based its adverse employment action on legitimate, nondiscriminatory factors. (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 861.) If the employer meets this initial burden, the burden shifts to the plaintiff to demonstrate a triable issue of material fact. (Ibid.) The plaintiff may do this "by producing substantial evidence that the employer's stated reasons were untrue or pretextual, or that the employer acted with a discriminatory animus, such that a reasonable trier of fact could conclude that the employer engaged in intentional discrimination or other unlawful action." (Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1038.)
Regarding retaliation, the FEHA makes it unlawful for an employer to "discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under [the FEHA] or because the person has filed a complaint, testified, or assisted in any proceeding under [the FEHA]." (§ 12940, subd. (h).) A plaintiff's prima facie retaliation case consists of evidence that (1) the plaintiff engaged in protected activity, (2) the employer subjected the plaintiff to an adverse employment action, and (3) there was a causal link between the plaintiff's protected activity and the adverse employment action. (Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 476.) Like a discrimination case, if the employer demonstrates a legitimate, nonretaliatory reason for its actions, then the plaintiff must show the proffered reason is pretextual. (Ibid.)
Along these same lines, the elements of wrongful termination in violation of public policy are "(1) an employer-employee relationship, (2) the employer terminated the plaintiff's employment, (3) the termination was substantially motivated by a violation of public policy, and (4) the discharge caused the plaintiff harm." (Yau v. Allen (2014) 229 Cal.App.4th 144, 154.) If there is no "nexus" between the plaintiff's termination and a violation of public policy—as is the case when the employer terminates the plaintiff for legitimate business reasons—then the cause of action fails. (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1253, 1258.)
In short, the employer is entitled to summary adjudication on all three of these causes of action if there is no triable issue that the employer acted for legitimate, nondiscriminatory, and nonretaliatory reasons. "'[L]egitimate' reasons [citation] in this context are reasons that are facially unrelated to prohibited bias, and which, if true, would thus preclude a finding of discrimination," retaliation, or wrongful termination. (Guz, supra, 24 Cal.4th at p. 358.) If nondiscriminatory and nonretaliatory, the employer's true reasons for its actions need not necessarily be wise or correct. (Ibid.) "While the objective soundness of an employer's proffered reasons supports their credibility . . . , the ultimate issue is simply whether the employer acted with a motive to discriminate illegally." (Ibid.)
Legitimate reasons include "a failure to meet performance standards [citation] or a loss of confidence in an employee." (Serri v. Santa Clara University, supra, 226 Cal.App.4th at p. 861.) In response to a showing of legitimate reasons, the plaintiff must do more than make a prima facie showing, deny the credibility of the employer's witnesses, or speculate as to discriminatory motive. (Id. at p. 862.) Speculation does not constitute the type of substantial, responsive evidence required. (Cucuzza v. City of Santa Clara, supra, 104 Cal.App.4th at p. 1038.) Rather, the plaintiff must set forth specific facts that would allow a reasonable fact finder to conclude the employer's proffered reasons are unworthy of credence. (Ibid.) The plaintiff may rely on reasonable inferences, but "an inference is reasonable if, and only if, it implies the unlawful motive is more likely than [the] defendant's proffered explanation." (Ibid.) The falsity of the employer's explanation may give rise to a reasonable inference that the employer is dissembling to conceal an unlawful purpose (Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S. 133, 147), such as when the employer gives "shifting, contradictory, implausible, uninformed, or factually baseless justifications for its actions." (Guz, supra, 24 Cal.4th at p. 363.)
"Because of the similarity between state and federal employment discrimination laws," we often "look to pertinent federal precedent when applying our own statutes." (Guz, supra, 24 Cal.4th at p. 354.)
In sum, "an employer is entitled to summary judgment if, considering the employer's innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that the employer's actual motive was discriminatory." (Guz, supra, 24 Cal.4th at p. 361.) "[S]ummary judgment for the employer may thus be appropriate where, given the strength of the employer's showing of innocent reasons, any countervailing circumstantial evidence of discriminatory motive, even if it may technically constitute a prima facie case, is too weak to raise a rational inference that discrimination occurred." (Id. at p. 362.)
2. Application
Here, Chrysler proffered substantial evidence of a legitimate, nondiscriminatory, nonretaliatory reason for moving Rice to warehouse supervisor, suspending her, and ultimately terminating her—her well-documented, ongoing performance issues. Long before 2014—which was when Rice complained to human resources or her supervisors and filed her administrative complaints—she was receiving less than stellar performance reviews. She received "low" ratings in seven of 16 categories in 2011, and in 2012, she received "low" ratings in nine of the 16 categories. These performance problems led Parker to put her on a PIP from February to August 2013—again, before she complained of harassment or discrimination. Although Parker concluded Rice made satisfactory progress during the first month of the PIP, she did not during the remainder, and he concluded that overall she failed to improve in communication, leadership, developing effective relationships with peers and subordinates, meeting targets and deadlines, and avoiding gossip or spreading rumors about other employees. Rice continued to experience performance issues after the unsuccessful PIP. In her 2013 performance review, she received "low" ratings in 11 of 16 categories. From the time Bowers began supervising her in November 2013 until May 2014, he had performance issues with her, including complaints about her tone and demeanor, a lack of knowledge about work processes, and failures to fulfill her duties while blaming others for it. There is no doubt this ongoing failure to meet performance standards was a legitimate reason for the adverse employment actions against Rice. (Serri v. Santa Clara University, supra, 226 Cal.App.4th at p. 861.)
It fell to Rice, then, to produce evidence showing Chrysler's reasons were pretextual or other substantial evidence of discriminatory or retaliatory animus. She failed to do this. To begin with, she either misrepresents much of the evidence on which she relies or relies on evidence not in the record. She disputes her poor performance reviews, arguing that she achieved "'satisfactory results' throughout her PIP" and that Parker said she should not be demoted or discharged. But as we have discussed, Parker concluded she had made satisfactory progress and should not be demoted or discharged after one month of the PIP, not throughout the entire six-month period. His evaluation of Rice's progress under the PIP had changed by the second month's interim review. Rice also disputes Chrysler's reasons by asserting Bowers admitted that "he never had a reason to discipline" her following the PIP. Bowers did not say he never had reason to discipline her after the PIP. On the contrary, defendants' evidence disclosed that Bowers had ongoing issues with Rice's performance and chose to counsel her several times before recommending discipline in May 2014, when he concluded that she was "very unreliable as a supervisor" and had not shown any improvement after his counseling. In other words, he certainly expressed reasons to discipline her and even wanted to do so. He merely testified in his deposition that she was not disciplined when he was her supervisor. Neither this testimony nor Parker's early evaluation of Rice's progress under the PIP are inconsistencies giving rise to a reasonable inference that Chrysler's reasons were false.
Rice additionally contends Bowers "only received informal complaints" about her that he felt need not be addressed. This, again, misrepresents Bowers's statements. The cited deposition testimony from Bowers did not say that he received only informal complaints about her. Rather, he testified that he received a particular informal complaint about Rice "birddogging" employees, which meant that she was "staring at them while they're working." Bowers said he did not address this complaint but "complimented" her and told her, "'That's good. That means they know you're paying attention so they get to work.'" Bowers's testimony about this one complaint is a far cry from saying Bowers received nothing but informal complaints about her and never addressed them with her. Moreover, the fact that Bowers complimented her for "birddogging" does not give rise to a reasonable inference of pretext. We find no support in the law for the suggestion that Chrysler's reasons are unworthy of credence if Rice was doing anything at all worth complimenting.
Rice also disputes that Chrysler suspended or terminated her based on the union grievances and cites her response to defendants' separate statement of undisputed material facts (separate statement). Her response to the separate statement cites, in turn, Parker's deposition testimony. But the cited pages from Parker's deposition do not appear in the record. Thus, even assuming such evidence could show pretext, Rice may not rely on it.
If we put aside the evidence that Rice misrepresents or that is not in the record, what remains does not permit a rational inference that Chrysler's true motives were discriminatory or retaliatory. Rice points to the evidence that Hall and Tolbert both knew of her complaints and participated in the decision to suspend and terminate her; that they did not have "personal knowledge" of her performance issues; that it was not unusual for union members to complain, and they complained about other supervisors too; and that her suspension and termination occurred shortly after she filed her administrative complaint (in February 2014), and immediately after the corporate diversity office completed its investigation into her complaints (in June 2014).
First, Hall explained she had no direct or personal knowledge of Rice's performance issues because she relied on information provided by Rice's supervisors—Eady, Bowers, and Parker. Similarly, Tolbert relied on information provided by Parker and Hall. The statements of these human resources employees do not show, as Rice suggests, that the suspension and termination decisions were "uninformed" or "factually baseless." (Guz, supra, 24 Cal.4th at p. 363.) They merely show the people who would have the most direct knowledge of Rice's performance, her supervisors, relayed the facts underlying these decisions. Second, the fact that Bowers received at least five complaints a week from union employees, and that there were complaints about supervisors besides Rice, does not "make clear" Rice was performing her job "as effectively as any other supervisor," as Rice contends. Bowers's statement was not material; he did not specify what the five complaints per week were about, other than to indicate they were "about anything." The notion that union members were generally prone to complain does not controvert Parker's statement that he received more complaints about Rice than any other employee. More importantly, if one compares the record of Rice's performance issues stretching from 2011 to 2014 with the isolated instances of union complaints against two other supervisors, one cannot reasonably conclude that Rice was as just as effective as other supervisors. These isolated complaints did not show the other supervisors were similarly situated and yet treated more favorably than Rice. (Loggins v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102, 1113 [holding there was no triable issue of pretext where the plaintiff failed to show employees who avoided adverse employment action were similarly situated].)
Third, and finally, we reach the timing of Rice's suspension and termination, and the fact that Hall and Tolbert were both aware of her complaints and participated in the adverse employment decisions. Rice contends the fact finder may reasonably infer from these facts that her termination was "in direct retaliation for" her complaints of a hostile work environment. It is true an employer's awareness of protected activity plus adverse action following within a relatively short period of time satisfies the plaintiff's prima facie burden of showing a causal link. (Loggins v. Kaiser Permanente Internat., supra, 151 Cal.App.4th at p. 1112; California Fair Employment & Housing Com. v. Gemini Aluminum Corp. (2004) 122 Cal.App.4th 1004, 1020.) But if the employer offers a legitimate, nonretaliatory reason for its adverse actions, as Chrysler does here, temporal proximity alone does not permit a reasonable inference of pretext. (Loggins v. Kaiser Permanente Internat., supra, at pp. 1112-1113; see also Stone v. City of Indianapolis Public Utilities Div. (7th Cir. 2002) 281 F.3d 640, 644 ["[M]ere temporal proximity between the filing of the charge of discrimination and the action alleged to have been taken in retaliation for that filing will rarely be sufficient in and of itself to create a triable issue."].)
"Instead, an employee seeking to avoid summary judgment cannot simply rest on the prima facie showing, but must adduce substantial additional evidence from which a trier of fact could infer the articulated reasons for the adverse employment action were untrue or pretextual." (Loggins v. Kaiser Permanente Internat., supra, 151 Cal.App.4th at p. 1113.) "This is especially so where the employer raised questions about the employee's performance before he [or she] engaged in protected activity, and the subsequent discharge was based on those performance issues." (Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 334-335.) Here, Rice has not adduced substantial additional evidence of pretext, and moreover, her performance issues started long before she engaged in protected activity. In addition, two of the primary decision makers when it came to her suspension and termination—Parker and Hall—are members of the same race and same protected class as Rice. Thus, even assuming Rice had established a triable issue on pretext—which she did not—this evidence would weigh against any inference of discrimination. (Rhodes v. Guiberson Oil Tools (5th Cir. 1996) 75 F.3d 989, 1002 ["[W]hen the decision makers are all of the same protected class as the discharged employee, it is similarly less likely that unlawful discrimination was the reason for the discharge."], abrogated on another ground by Reeves v. Sanderson Plumbing Products, Inc., supra, 530 U.S. at p. 140.) Finally, Rice contends the trial court improperly relied on evidence Chrysler submitted in reply. (See Nazir v. United Airlines, Inc., supra, 178 Cal.App.4th at p. 252 ["The reply also included 153 pages of 'Exhibits and Evidence in Support of Reply.' No such evidence is generally allowed."].) Chrysler contends it submitted the reply declaration of Parker and additional pages from the Parker and Bowers depositions in direct response to Rice's selective and misleading use of the evidence. Regardless of whether the trial court relied on any of this evidence, we review the ruling and record de novo, and we have not relied on any of the reply evidence.
Simply stated, Chrysler proffered ample evidence that it based Rice's suspension and termination on long-existing performance issues. In the face of this innocent explanation, Rice did not respond with substantial evidence permitting a reasonable inference of pretext or discriminatory or retaliatory animus. Chrysler was thus entitled to summary adjudication on the causes of action for racial discrimination, retaliation, and wrongful termination. C. Cause of Action for Failure to Prevent Conduct Prohibited by the FEHA
On the eve of oral argument in this court, Rice submitted a letter notifying us that she intended to rely on relatively new case law not cited in her briefing, Light v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75. We have considered Light and conclude it does not assist Rice because the case is so factually dissimilar. There, the plaintiff had "direct evidence" of retaliation, including explicit threats of retaliation from her supervisor, and an internal investigation by the employer concluding that a retaliatory culture existed at the workplace. (Id. at p. 95.) Rice has no such direct evidence here, or circumstantial evidence aside from the timing of her suspension and termination, which we have addressed above.
We disagree with the trial court that Chrysler was entitled to summary adjudication on the cause of action for failure to prevent conduct prohibited by the FEHA.
The FEHA makes it unlawful for an employer to "fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring." (§ 12940, subd. (k).) Retaliation is included within the meaning of discrimination for these purposes. (Taylor v. City of Los Angeles Dept. of Water & Power (2006) 144 Cal.App.4th 1216, 1239-1240, disapproved on another ground in Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1173-1174.) An actionable claim for failure to prevent discrimination, harassment, or retaliation depends on a valid claim that the predicate conduct actually occurred. (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1021.) "Employers should not be held liable to employees for failure to take necessary steps to prevent such conduct, except where the actions took place and were not prevented." (Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 289.)
Applying these principles, the trial court reasoned that, because the discrimination, sexual harassment, and retaliation causes of action failed, the cause of action for failure to prevent this conduct necessarily failed. We have determined, however, that Rice's cause of action for sexual harassment survives defendants' summary judgment motion. Accordingly, we cannot affirm summary adjudication on this ground.
We may affirm the trial court's ruling on any ground set forth in defendants' motion, regardless of the grounds relied upon by the trial court, but we do not find sufficient alternate grounds here. (American Meat Institute v. Leeman (2009) 180 Cal.App.4th 728, 747-748.) To prevail on this cause of action, Rice would need to show (1) she was subjected to sexual harassment, (2) Chrysler failed to take all reasonable steps to prevent the harassment, and (3) this failure caused her injury, damage, loss, or harm. (Alejandro v. ST Micro Electronics, Inc. (N.D. Cal. 2015) 129 F.Supp.3d 898, 913.) Chrysler moved for summary adjudication on the additional ground that it took reasonable steps to prevent unlawful conduct, thus attempting to show Rice could not establish the second element.
"Prompt investigation of a discrimination [or harassment] claim is a necessary step by which an employer meets its obligation to ensure a discrimination-free [and harassment-free] work environment." (Northrop Grumman Corp. v. Workers' Comp. Appeals Bd. (2002) 103 Cal.App.4th 1021, 1035.) "Other reasonable steps an employer might take include the establishment and promulgation of antidiscrimination policies and the implementation of effective procedures to handle complaints and grievances regarding discrimination." (California Fair Employment & Housing Com. v. Gemini Aluminum Corp., supra, 122 Cal.App.4th at p. 1025.) Below, Chrysler relied on the evidence that it has official policies prohibiting discrimination, harassment, and retaliation, that it trained Rice's supervisors (Parker, Eady, and Bowers) on these policies and appropriate workplace conduct, and that it investigated Rice's complaints and could not substantiate them. Rice does not dispute that Chrysler had official policies prohibiting discrimination, harassment, and retaliation, nor does she dispute that Chrysler trained her supervisors in these policies. She contends instead there is a triable issue of material fact as to the reasonableness of Chrysler's preventative steps, because the investigation "was woefully inadequate" and none of her supervisors took remedial measures after witnessing harassment against her.
We agree there remains a triable issue on whether Chrysler took "all reasonable steps necessary to prevent" harassment. (§ 12940, subd. (k).) Policies to prohibit harassment and investigate claims are mere lip service if the employer does not act on those policies by conducting a reasonably thorough investigation to root out harassment. The promptness of the employer's action, as well, is key (Bradley v. Department of Corrections & Rehabilitation (2008) 158 Cal.App.4th 1612, 1631), lest the alleged harassment continue after the initial complaint. Here, Chrysler's evidence was that Michael investigated Rice's complaints by reviewing e-mails and other documents, speaking to Hall, and interviewing Parker. But there is no evidence he interviewed the various other witnesses involved in the incidents of which Rice complains, such as Roseborough, Owens, Bowers, and Carter. He did not interview Rice herself, although he tried to contact her multiple times. There is also no evidence of a written report of Michael's findings, other than the letter to Rice telling her the corporate diversity office could not substantiate her claims. While Hall asked him to investigate in January 2014, he did not conclude his investigation until June 2014, and there is no evidence of temporary actions Chrysler took to address the situation pending the completion of the investigation. Further, it is unclear from the record whether the alleged incidents in which Carter lunged at Rice, and Owens asked for her phone number, were part of Michael's investigation, despite management being aware of both incidents. A trier of fact could reasonably conclude from this record that Chrysler did not conduct an appropriately thorough investigation or act promptly to address Rice's claims. This record does not show, as a matter of law, that Rice cannot establish a failure to take all reasonable steps necessary to prevent harassment. Accordingly, Chrysler was not entitled to summary adjudication on this cause of action. D. Negligent Retention Cause of Action
We note that the question of whether these incidents constituted sexual harassment based on a hostile work environment is not before us. Chrysler did not move on this ground and instead moved on the ground that it took reasonable preventative steps. We decline to express any opinion on the validity of Rice's sexual harassment claims.
"California case law recognizes the theory that an employer can be liable to a third person for negligently hiring, supervising, or retaining an unfit employee. [Citation.] Liability is based upon the facts that the employer knew or should have known that hiring [or retaining] the employee created a particular risk or hazard and that particular harm materializes." (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054.) As with any negligence claim, the plaintiff pursing a negligent retention cause of action must show a nexus or causal connection between the employer's negligence and injury to the plaintiff. (Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1140.) The trial court concluded Rice's cause of action failed because her causes of action for retaliation, discrimination, and harassment failed; that is, any alleged negligence on Chrysler's part did not result in injury to Rice, in the absence of underlying misconduct. Again, we cannot affirm the court's ruling on this ground because we have determined the sexual harassment cause of action survives Chrysler's motion.
Chrysler moved for summary adjudication of this cause of action on a different ground, but we cannot affirm on this ground either. Chrysler argued it did not know nor should it have known that retaining Parker, Eady, and Bowers created a particular risk or hazard. It pointed to the evidence of its policies prohibiting discrimination, harassment, and retaliation, its training of the three managers on these policies and appropriate workplace conduct, the lack of complaints against the three managers before Rice's complaints, and its failure to substantiate Rice's claims of misconduct. In light of this evidence, Chrysler asserted it had no information to suggest any of the three managers was an unfit supervisor.
But Rice's cause of action is not limited to her supervisors. She complained about other employees creating a hostile work environment, including Roseborough, Owens, and Carter. Chrysler's summary judgment showing did not address the anti-harassment training these employees received, whether they had prior complaints lodged against them, or whether Chrysler would have any other reason to know they posed a particular risk.
On appeal, Chrysler contends Rice waived the right to base her cause of action on Roseborough, Owens, and Carter because her complaint only identifies Parker as the allegedly unfit or negligently supervised employee. It is true the "complaint limits the issues to be addressed at the motion for summary judgment" because "[i]t is the allegations in the complaint to which the summary judgment motion must respond." (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258.) But Chrysler is wrong that the complaint only identifies Parker as the subject of this cause of action. Under the heading for this particular cause of action, the complaint states: "Defendants negligently and carelessly retained their employees, including, but not limited to, Parker." (Italics added, capitalization omitted.) Elsewhere, under the heading for general allegations, the complaint states: "Rice was subjected to almost daily harassment by Parker and others employed by Parker. The harassment included, but was not limited, to Rice being called a 'bitch,' and a 'fucking bitch.'" (Italics added, capitalization omitted.) Thus, the complaint does not limit liability to Parker's actions only, and it even appears to describe the alleged incident in which Roseborough called Rice a derogatory name. Chrysler's showing on Parker, Bowers, and Eady did not entitle it to summary adjudication. E. Ralph Act Cause of Action
The Ralph Act refers to Civil Code section 51.7. (Stamps v. Superior Court (2006) 136 Cal.App.4th 1441, 1446.) Civil Code "[s]ection 51.7 broadly provides that all persons have the right to be free from violence and intimidation by threat of violence based on, among other things, race, religion, ancestry, national origin, political affiliation, sex, or position in a labor dispute." (Id. at p. 1445.) "[A] plaintiff must establish the defendant threatened or committed violent acts against the plaintiff or their property, and a motivating reason for doing so was a prohibited discriminatory motive . . . ." (Gabrielle A. v. County of Orange (2017) 10 Cal.App.5th 1268, 1291.)
Defendants argued the trial court could grant judgment on the pleadings as to this cause of action because she did not plead who specifically engaged in violence or threats of violence, she did not describe the alleged violent act or threat, and she did not plead defendants intended to injure her. Further, they argued, the cause of action failed on the substance, as there was no evidence of any violent incident in which the perpetrator intended to injure her and was motivated by her gender. The court ruled for defendants on the ground that there was no evidence of the requisite intent.
We agree defendants were entitled to summary adjudication on this cause of action, although we rely on a different reason than the trial court. Like she did below, Rice contends she was the victim of physical threats but does not specify which incident in particular underlies the Ralph Act cause of action. The only incident in the record that the trier of fact could reasonably construe as a threat of violence was when Carter allegedly lunged at Rice. But there is no evidence whatsoever that her gender was "a substantial motivating reason" for Carter's conduct. (CACI No. 3064.) Rice points to no evidence, for instance, that he called her a gender-based derogatory name during the incident, or consistently targeted her or only women. (See Winarto v. Toshiba America Electronics Components, Inc. (9th Cir. 2001) 274 F.3d 1276, 1290 [sufficient evidence of gender animus for Ralph Act liability where the defendant called the plaintiff "'chick'" during incidents and said, as to a "hair messing" incident, that it was a "'girl thing'"].) This gender-based animus is an essential element, and because there is no evidence from which a jury could infer it, defendants were entitled to summary adjudication. (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 484, 488 [holding "there simply is no evidence from which to infer" an essential element of the plaintiff's cause of action and affirming summary judgment for the defendants].) F. IIED Cause of Action
The trial court ruled Rice lacked any evidence of extreme and outrageous conduct to support her IIED cause of action. We agree.
"The elements of a prima facie case for the tort of [IIED] are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct." (Cervantez v. J. C. Penney Co. (1979) 24 Cal.3d 579, 593, superseded by statute on another ground.)
"'There is virtually unanimous agreement that . . . ordinary defendants are not liable for mere insult, indignity, annoyance, or even threats, where the case is lacking in other circumstances of aggravation. The reasons are not far to seek. Our manners, and with them our law, have not yet progressed to the point where we are able to afford a remedy in the form of tort damages for all intended mental disturbance. Liabilities of course cannot be extended to every trivial indignity. . . . [¶] Accordingly, it is generally held that there can be no recovery for mere profanity, obscenity, or abuse, without circumstances of aggravation, or for insults, indignities or threats which are considered to amount to nothing more than mere annoyances. The plaintiff cannot recover merely because of hurt feelings.'" (Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1128.) Rather, "'[c]onduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.'" (Id. at p. 1123.) Additionally, "[b]ehavior may be considered outrageous if a defendant abuses a position which gives him power to damage the plaintiff's interest." (Ibid.) Whether conduct is outrageous is a question of fact, but "many cases have dismissed [IIED] cases on demurrer, concluding that the facts alleged do not amount to outrageous conduct as a matter of law." (Bock v. Hansen (2014) 225 Cal.App.4th 215, 235; Trerice v. Blue Cross of California (1989) 209 Cal.App.3d 878, 883 ["[T]he court may determine in the first instance, whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery."].)
Here, Chrysler proffered evidence that Parker did not abuse his position of power because he and Chrysler had legitimate reasons for the adverse employment actions against Rice. And, as we have discussed, Rice did not respond with evidence from which a reasonable trier of fact could infer pretext. Given that the adverse employment actions were legitimate, nondiscriminatory, and nonretaliatory, they cannot be considered "'so extreme as to exceed all bounds of that usually tolerated in a civilized community.'" (Yurick v. Superior Court, supra, 209 Cal.App.3d at p. 1123.)
Rice nevertheless contends she suffered a hostile work environment, satisfying the outrageousness requirement. Even when we credit the evidence that Roseborough called her a derogatory name, Owens asked for her phone number, and Carter raised his voice and lunged at her, one cannot reasonably conclude this amounted to extreme and outrageous conduct. These actions may be objectively offensive, and we certainly do not condone them, but they add up to a profane insult, an indignity, and a possible threatening gesture, with no particular circumstances of aggravation—not conduct so "egregiously outside the realm of civilized conduct" that it gives rise to tort liability for IIED. (Yurick v. Superior Court, supra, 209 Cal.App.3d at pp. 1124-1126, 1129 [repeated statements that "'anyone over age forty is senile and a liar,'" and calling the plaintiff a senile liar, was not extreme and outrageous conduct as a matter of law]; Schneider v. TRW, Inc. (9th Cir. 1991) 938 F.2d 986, 992-993 [screaming at the plaintiff while criticizing her performance, threatening to throw her out of the department, and using threatening gestures, while rude and insensitive conduct, did not amount to outrageous conduct as a matter of law].) The trial court properly granted summary adjudication on this cause of action.
V. DISPOSITION
The judgment and the order granting summary judgment are reversed. On remand, the trial court shall enter an order: (1) granting summary adjudication for defendants on Rice's causes of action for retaliation, racial and gender discrimination, wrongful termination, failure to provide rest periods, defamation, IIED, and Ralph Act violations; and (2) denying summary adjudication on Rice's causes of action for sexual harassment, failure to prevent harassment, and negligent retention of unfit employees. The parties shall bear their own costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: MILLER
Acting P. J. CODRINGTON
J.