Guerrero
v.
Ameripride Servs. Inc.

This case is not covered by Casetext's citator
COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREEAug 25, 2011
B224309 (Cal. Ct. App. Aug. 25, 2011)

B224309

08-25-2011

APOLONIO GUERRERO, Plaintiff and Appellant, v. AMERIPRIDE SERVICES, INC., Defendant and Respondent.

Concepcion Arechabala for Plaintiff and Appellant. Duane Morris LLP and Julie Vogelzang, for Defendant and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. BC400251)

APPEAL from a judgment of the Superior Court of Los Angeles County, Terry A. Green, Judge. Affirmed.

Concepcion Arechabala for Plaintiff and Appellant.

Duane Morris LLP and Julie Vogelzang, for Defendant and Respondent.

INTRODUCTION

Apolonio Guerrero appeals from the grant of summary judgment in favor of defendant AmeriPride Services, Inc. (AmeriPride) in his suit for breach of implied contract, breach of the implied covenant of good faith and fair dealing, age discrimination, disability discrimination, invasion of privacy, and retaliation. Because Guerrero did not provide evidence to overcome the presumption that his employment contract with AmeriPride was at will, and did not create a triable issue of fact as to the existence of an implied employment contract that was other than an at-will contract, summary judgment was properly granted as to the cause of action for breach of implied contract. Summary judgment was properly granted on the cause of action for breach of the implied covenant of good faith and fair dealing because where the employment contract was at will, the implied covenant of good faith and fair dealing cannot impose substantive duties on contracting parties beyond those in the at-will employment contract. Guerrero also brought a claim of employment discrimination because of age. Guerrero failed to exhaust his administrative remedies as to allegations of age discrimination occurring three years before he filed his complaint. Moreover, Guerrero's evidence did not establish a prima facie case of age discrimination, and even if it had, AmeriPride rebutted the presumption of discrimination with evidence that it terminated Guerrero for a legitimate, nondiscriminatory reason. Therefore summary judgment was properly granted on Guerrero's age discrimination claim. Because the evidence creates no disputed issue of material fact that AmeriPride had a nondiscriminatory reason for terminating Guerrero, AmeriPride is entitled to summary judgment on Guerrero's claim for employment discrimination because of disability. We further find that the two-year limitations period in Code of Civil Procedure section 335.1 barred Guerrero's claim for invasion of privacy. Because Guerrero failed to allege that he engaged in a protected activity, and testified that he never complained to anyone at AmeriPride about harassment, discrimination, or retaliation, Guerrero failed to establish a prima facie case of employment discrimination because of retaliation. We affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

Defendant AmeriPride is in the business of renting uniforms, towels, aprons, and other clothing used by hotels, restaurants, workshops, printers, and related businesses. In September 1979, AmeriPride hired plaintiff Guerrero to work in its washing department. Guerrero became Supervisor of the Production Department in 1991.

In 2004, an employee reported to management that Guerrero was seen kissing an employee. AmeriPride investigated, but concluded there was no merit to the allegation. Guerrero did not know what management did in investigating the allegation and did not know if other employees knew about the investigation. Guerrero discussed the investigation with the other employee. Other than the accusation and the investigation, Guerrero had no other facts to support his claim for invasion of privacy.

On several occasions in 2004, Guerrero's supervisor, Bryan Chasey, called him "old" when Guerrero asked to be transferred to the night shift. Chasey told Guerrero that Guerrero was going to continue to do his job as production supervisor for the day shift. Guerrero admitted that when he asked to become night supervisor, there were already two night supervisors and there was no open position to be filled at that time. One of those night shift supervisors was over 40 years old and close to Guerrero's age, who was 50 years old in 2004. Guerrero also testified that when he asked Chasey for something, Chasey would sometimes answer, "Polo, you're too old." Guerrero, however, stated that Chasey did not refuse to give him a raise or deprive him of any benefit of employment because he was too old. Guerrero admitted that he was never given a warning, disciplined, or suspended because of his age. Other than Chasey, no one in AmeriPride management ever mentioned Guerrero's age. Chasey did not make the decision to terminate him, and Chasey was not employed at AmeriPride when Guerrero was terminated.

Other than Chasey's comments in 2004, there was no other indication of age discrimination by AmeriPride.

Guerrero stopped working at AmeriPride in 2005, when he became ill from work-related stress. Guerrero's alleged disability arose from being called to work nights and having to work 14 to 16 hours per day beginning in 2004, by AmeriPride's sexual harassment investigation in 2005, and from Chasey yelling at him when he was given a warning. In February 2005, Chasey wanted Guerrero to sign a warning that it was his fault that something was wrong with a delivery route in San Bernardino. Guerrero refused to sign, and Chasey yelled at him that he had to sign the warning and that it was his fault, and pounded the table. Guerrero felt bad, left work, and went to the doctor, who took Guerrero out of work. Guerrero filed a workers' compensation claim and received workers' compensation. The workers' compensation doctors also kept him out of work.

Guerrero was on a disability leave from February 2005 to July 2007 and was totally unable to work during this period. During his leave, AmeriPride did not pressure Guerrero or force him to return to work. Guerrero's doctor's notes were sent to AmeriPride during his leave period. They stated that he was totally unable to work until July 2007. His symptoms returned in October 2007, and have prevented him from working since that time.

During Guerrero's disability leave, AmeriPride assigned two other production supervisors to take on and share Guerrero's duties. At least one of those production supervisors was over 40 years old. At the end of his leave period, his job was no longer available and Guerrero was not reinstated. Guerrero was told that he was without a job. Matthew Wenzel, General Manager of AmeriPride's Los Angeles Branch and its District Manager, and Lance Westphal, AmeriPride Regional Vice President, stated that when existing employees absorbed Guerrero's job duties during his leave period, no one was hired to replace him, and his job was eliminated. Wenzel stated that the consolidation of duties saved costs during a time when cost-saving measures were critical.

Regarding his claim for retaliation, Guerrero did not know if AmeriPride retaliated against him. In mid-2003, after Chasey became Guerrero's supervisor, his shift was from 6:00 a.m. to 2:30 p.m., but supervisors in the night shift began to call Guerrero in to make deliveries of orders left behind by night shift employees. Such calls came in after midnight, and included deliveries to San Bernardino or San Diego. Guerrero had to work 12 to 16-hour days, and complained to Chasey, who denied his request to transfer to the night shift and did nothing to solve the problem.

Guerrero admitted in his deposition that no one at AmeriPride ever told him he would be employed forever or ever guaranteed him a job for as long as he wanted one. He admitted that AmeriPride had an at-will policy such that employees could be fired with or without cause and employees could resign for any reason. Guerrero understood that he did not have a written contract of employment with AmeriPride. He never received any information that AmeriPride intended to employ him until he was ready to retire. Guerrero's declaration, however, stated that when he was hired, the production manager assured him that the position was permanent as long as his work performance was satisfactory. Guerrero also stated that he observed that it was AmeriPride's practice not to terminate anyone other than for dishonesty or other good cause proven, which led Guerrero to believe that as long as he performed his duties in a satisfactory manner and was honest and reliable he would have continued employment. Guerrero stated that in 1979, AmeriPride did not have an employee handbook, and no one ever told him his employment was "at will." AmeriPride distributed employee handbooks during the 1990's and required employees to acknowledge receipt of the handbook, which stated that employment would be "at will." This "at will" language surprised Guerrero, as it contradicted what the production manager told him when he was hired. Guerrero stated that he concluded that the "at will" condition applied only to new hires, a conclusion underscored in the 1998 employee handbook, whose first page read, "Welcome new employee!"

AmeriPride terminated Guerrero after he took a leave of absence of approximately two and one-half years. Guerrero was not aware that AmeriPride ever held a position open for someone who was gone for more than two years. Guerrero was not aware of any employees who were not discharged after an extended leave of absence. Gene Anderson told Guerrero that he no longer had a job. In his declaration, Guerrero stated that when his doctors released him to return to work on July 13, 2007, he reported to work at AmeriPride's Vernon facility. He met with Gene Anderson, who told him he would not be working at that location anymore and that he would receive a package from corporate. Guerrero stated that he never received a "package," and was not paid wages and vacation time owed to him. Guerrero filed a claim with the Labor Commissioner to recover past due wages, and prevailed in that claim. In late December 2007, Luis Lopez, Chief Engineer at AmeriPride, agreed that Guerrero could return to his position and would be paid for wages lost. On January 3, 2008, however, Guerrero met with Matthew Wenzel, AmeriPride's General Manager, and Lopez. Wenzel reneged on Lopez's promise to give him his job back, but agreed to give Guerrero back pay. Guerrero did not accept. Guerrero stated that neither Lopez nor Wenzel ever told him his position had been eliminated or offered him a different or lesser position.

On October 20, 2008, Guerrero filed a complaint for breach of implied contract, breach of implied covenant of good faith and fair dealing, unlawful age discrimination, unlawful disability discrimination, invasion of privacy, and retaliation. On October 7, 2009, AmeriPride filed a motion for summary judgment, which the trial court granted on February 4, 2010. Judgment for AmeriPride was entered on March 15, 2010. Guerrero filed a timely notice of appeal.

ISSUES

Guerrero claims on appeal that:

1. The trial court failed to rule on Guerrero's objections to AmeriPride's evidence;

2. Guerrero had an implied contract not to be discharged without good cause;

3. AmeriPride's termination of Guerrero breached the covenant of good faith and fair dealing;

4. The trial court erroneously granted summary judgment on the age discrimination claim.

5. The trial court erroneously granted summary judgment on the disability discrimination claim;

6. The trial court erroneously granted summary judgment on the invasion of privacy claim; and

7. The trial court erroneously granted summary judgment on the retaliation claim.

DISCUSSION

1. Standard of Review

"A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) We review the trial court's decision de novo, considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports. [Citation.] In the trial court, once a moving defendant has 'shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established,' the burden shifts to the plaintiff to show the existence of a triable issue; to meet that burden, the plaintiff 'may not rely upon the mere allegations or denials of its pleadings . . . but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action . . . .' [Citations.]" (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476-477.)

2. Contract Claims

A. Guerrero Has Not Created a Triable Issue of Fact as to the Existence of an Implied Employment Contract That Was Other Than an At-Will Contract

Guerrero's cause of action for breach of implied contract alleged that beginning in September 1979, AmeriPride employed Guerrero under an implied-in-fact contract for an indefinite term as evidenced by AmeriPride's written personnel polices and practices, discipline procedures, assurances, and other statements. The complaint alleged that employment would continue as long as Guerrero performed his job in a satisfactory manner, discharge would only be for good cause proven, and AmeriPride would provide Guerrero with a meaningful opportunity to respond to any grievance lodged against him. The complaint alleged that during 27 years of employment, Guerrero never received any significant criticism or warnings about his work performance and his supervisors told him he was doing a satisfactory job. The complaint alleged that AmeriPride breached this implied employment contract by terminating him in July 2007.

An employer and employee are free to agree to a contract terminable at will or subject to limitations. If the parties have not made an express agreement specifying the length of employment or grounds for termination, Labor Code section 2922 establishes a presumption of at-will employment. Evidence that despite the lack of a specified term, the parties agreed to limit the employer's power to terminate (such as by a requirement that termination be only for "good cause") can overcome the presumption of at-will employment. (Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 677.) "In the employment context, factors apart from consideration and express terms may be used to ascertain the existence and content of an employment agreement, including 'the personnel policies or practices of the employer, the employee's longevity of service, actions or communications by the employer reflecting assurances of continued employment, and the practices of the industry in which the employee is engaged.' " (Id. at p. 680.)

Labor Code section 2922 provides in relevant part, "An employment, having no specified term, may be terminated at the will of either party on notice to the other."

Guerrero testified in his deposition that no one at AmeriPride ever told him that he would be employed forever, and he made no such representation to any of his AmeriPride employees. No one at AmeriPride guaranteed Guerrero a job for as long as he wanted one, and Guerrero never told any of the AmeriPride employees who reported to him that they were guaranteed a job or that they would never be fired. Guerrero also agreed that AmeriPride had an at-will policy such that employees could be fired with or without cause and employees could resign for any reason. Guerrero admitted that he talked to his employees about AmeriPride's at-will policy, to make sure they understood it. When asked if he had a contract with AmeriPride for continued employment, Guerrero answered that he did not remember. Guerrero testified that none of his employees had an employment contract with AmeriPride, and that as an AmeriPride supervisor, he understood that AmeriPride did not enter into contracts with its employees. Guerrero testified that no one ever told him that AmeriPride's policies did not apply to him, and he never received information from anyone that AmeriPride intended to employ him until he was ready to retire. Guerrero testified that he never told any of his employees that he intended to employ them until they were retired, and admitted that doing so would have been a violation of AmeriPride's policy.

After his deposition testimony, Guerrero submitted a declaration stating that when the then production manager interviewed him for his job at AmeriPride in 1979, he asked if the position was permanent, and was assured that the position was permanent as long as his work performance was satisfactory. Guerrero also stated that while working at AmeriPride, he observed that it was AmeriPride's practice not to terminate anyone other than for dishonesty or other good cause proven, which led him to believe that as long as he performed his duties in a satisfactory manner and was honest and reliable, he would have continued employment. Guerrero stated that AmeriPride did not have an employee handbook in 1979 and no one ever told him his employment was "at will." When AmeriPride distributed employee handbooks in the 1990's, and required employees to acknowledge receipt of the book, which stated that employment would be "at will." Guerrero stated that the "at will" language surprised him, as it contradicted what he was assured by the production manager when he was hired, and Guerrero concluded that the "at will" condition applied only to new hires.

An affidavit that repudiates prior deposition testimony does not constitute substantial evidence of the existence of a triable issue of fact. (Advanced Micro Devices, Inc. v. Great American Surplus Lines Ins. Co. (1988) 199 Cal.App.3d 791, 800.) "Parties cannot create an issue of material fact by submitting a declaration that contradicts previous statements made under oath." (Tesco Controls, Inc. v. Monterey Mechanical Co. (2004) 124 Cal.App.4th 780, 798, fn. 6.) Guerrero's declaration should therefore be disregarded as irrelevant and evasive. (Leasman v. Beech Aircraft Corp. (1975) 48 Cal.App.3d 376, 383.) Consequently, Guerrero has not provided evidence overcoming the presumption that his employment contract with AmeriPride was at will, and has not created a triable issue of fact as to the existence of an implied employment contract that was other than an at-will contract. Summary judgment was properly granted as to this cause of action.

B. Where Employment Was At Will, the Employee Can State No Claim for Breach of the Implied Covenant of Good Faith and Fair Dealing

Where a court finds that summary judgment was proper on the ground that an employee's employment was at will, the employee can state no claim either for breach of employment contract or for breach of the implied covenant of good faith and fair dealing. (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 820; Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1152.) Where the employment contract was at will, the implied covenant of good faith and fair dealing cannot impose substantive duties on contracting parties beyond those in the at-will employment contract. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 311, 349-350.) Therefore summary judgment was properly granted on the cause of action for breach of the implied covenant of good faith and fair dealing.

3. Summary Judgment Was Properly Granted on the Age Discrimination Claim

Government Code section 12940, subdivision (a) makes it an unlawful employment practice "[f]or an employer, because of the . . . age . . . of any person, to refuse to hire or employ the person . . . or to bar or to discharge the person from employment . . . or to discriminate against the person in compensation or in terms, conditions, or privileges of employment." Guerrero's complaint alleged employment discrimination by disparate treatment: that AmeriPride terminated Guerrero because of his age (57 years old); a supervisor, Bryan Chasey, commented to Guerrero that he was getting old; and that he was replaced by a younger employee.

" 'Age' refers to the chronological age of any individual who has reached his or her 40th birthday." (Gov. Code, § 12926, subd. (b).)

A. The Failure to Exhaust Administrative Remedies Bars the Complaint as to Allegations of Age Discrimination Occurring in 2004

Government Code section 12960 provides in pertinent part that "(b) Any person claiming to be aggrieved by an alleged unlawful [employment] practice may file with the department [of Fair Employment and Housing] a verified complaint, in writing, that shall . . . set forth the particulars thereof and contain other information as may be required by the department. . . . [¶] . . . [¶] (d) No complaint may be filed after the expiration of one year from the date upon which the alleged unlawful practice . . . occurred[.]"

Before maintaining a legal action, a plaintiff must exhaust the administrative remedy of filing a timely complaint with the Department of Fair Employment and Housing and obtaining permission to pursue legal remedies. The statutory one-year period begins to run when the unlawful employment practice has occurred; thus the administrative complaint must be filed within one year after the unlawful employment practice. (Romano v. Rockwell Internal., Inc. (1996) 14 Cal.4th 479, 492 (Romano).)

In this case, Brian Chasey's comments about Guerrero's age and being too old occurred several times in 2004. Guerrero filed his charge of discrimination with the Department of Fair Employment & Housing on October 17, 2007. Thus the administrative complaint was untimely, at least as to allegations of employment discrimination because of age occurring in 2004. The timely filing of an administrative complaint is a prerequisite to bringing a civil action for damages under the FEHA (Romano, supra, 14 Cal.4th at p. 492) and is a ground for a defense summary judgment (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1724).

B. Guerrero's Evidence Did Not Establish a Prima Facie Case of Age Discrimination, and Even If It Had, AmeriPride Rebutted the Presumption of Discrimination With Evidence That It Terminated Guerrero for a Legitimate, Nondiscriminatory Reason

To establish a prima facie case of age discrimination, a plaintiff must provide evidence that he (1) is over the age of 40; (2) suffered an adverse employment action; (3) was performing satisfactorily at the time of the adverse employment action; and (4) suffered the adverse employment action under circumstances giving rise to an inference of unlawful discrimination, i.e., evidence that he was replaced by someone significantly younger than the plaintiff. (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 321 (Sandell).)It is undisputed that Guerrero was over the age of 40 when he was terminated and that he suffered an adverse employment action, i.e., termination. AmeriPride did not dispute Guerrero's allegation that his work performance was always satisfactory. As to the fourth element, that Guerrero suffered the adverse employment action under circumstances giving rise to an inference of unlawful discrimination, it was undisputed that other than Chasey's comments in 2004, no one else ever mentioned age to Guerrero, that Chasey was not involved in the decision to terminate Guerrero and was not employed at AmeriPride at the time Guerrero was terminated in July 2007, and that Guerrero did not know who took over his job duties when he went on leave. It was undisputed that Guerrero was never refused a raise, deprived of any employment benefit, given a warning, disciplined, or suspended because of his age. It was undisputed that other than Chasey's comments about age in 2004, there was no other indication of ageism on the part of AmeriPride. Guerrero disputed defendant's allegation that at least one of the employees who absorbed Guerrero's job duties while he was on leave was over forty years old, but Guerrero provided no evidence to support the existence of any dispute. Guerrero therefore provided no evidence that he suffered the adverse employment action under circumstances giving rise to an inference of unlawful discrimination. He therefore failed to establish a prima facie case of age discrimination.

Even if the prima facie case was considered to have been established and a presumption of discrimination to have arisen, AmeriPride had evidence to rebut that presumption, i.e. that its termination of Guerrero was taken for a legitimate, nondiscriminatory reason. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at pp. 355-356.) Guerrero produced no evidence disputing that existing employees absorbed his job duties when he went on leave, and that his position was eliminated. Summary judgment was properly granted on the age discrimination claim.

4. Because There Is No Disputed Issue of Material Fact That AmeriPride Had a Nondiscriminatory Reason for Terminating Guerrero, AmeriPride Is Entitled to Summary Judgment on the Disability Discrimination Claim

Government Code section 12940, subdivision (a) makes it an unlawful employment practice "[f]or an employer, because of the . . . physical disability, mental disability, [or] medical condition . . . of any person, to . . . bar or to discharge the person from employment or to discriminate against the person in compensation or in terms, conditions, or privileges of employment." Generally there are two types of illegal employment discrimination: disparate treatment and disparate impact. (Knight v. Hayward Unified School Dist. (2005) 132 Cal.App.4th 121, 128.) Guerrero's complaint alleged employment discrimination by disparate treatment: that AmeriPride targeted him for termination and that by malicious acts by its agents and employees sought to have Guerrero quit. The complaint alleged that upon Guerrero's medical release to return to work in July 2007, AmeriPride summarily terminated him without an exit interview, without engaging in the interactive process required for disability conditions, and without providing accommodation or allowing Guerrero to ask for accommodation.

To establish a prima facie case of employment discrimination because of disability under the FEHA, the plaintiff must present evidence, even circumstantially by inference, that the employee (1) suffered from a disability; (2) could perform essential job duties with or without reasonable accommodations; and (3) was subjected to an adverse employment action because of the disability. (Sandell, supra, 188 Cal.App.4th at p. 310.) If the plaintiff meets this burden, a presumption of discrimination arises and the burden shifts to the employer to rebut that presumption by producing admissible evidence, sufficient to raise a genuine issue of fact and to justify a judgment for the employer, that the employer had a legitimate, nondiscriminatory reason for the adverse employment decision. If the employer sustains this burden, it overcomes the presumption of discrimination and the plaintiff must then prove that the employer's proffered reason was a pretext for discrimination or offer other evidence of discriminatory motive. (Id. at pp. 307-308.)

"If the employer presents admissible evidence either that one or more of plaintiff's prima facie elements is lacking, or that the adverse employment action was based on legitimate, nondiscriminatory factors, the employer will be entitled to summary judgment unless the plaintiff produces admissible evidence which raises a triable issue of fact material to the defendant's showing." (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203.)

Guerrero was disabled and took a leave of absence from February 2005 to July 2007. During this two-years-and-five-month leave of absence, Guerrero suffered from a disability and could not perform essential job duties with or without reasonable accommodation. In July 2007, Guerrero was ready to return to work with the only restriction being that he maintain his current medication schedule. As Guerrero alleges, when he was released to return to work, AmeriPride was aware of his absence due to psychological issues, and he was qualified to resume the duties of his position without any restrictions. Although it could be argued that in July 2007 Guerrero was not disabled, Guerrero still suffered from a "mental disability," which includes "[h]aving a record or history of a mental or psychological disorder or condition . . . which is known to the employer[.]" (Gov. Code, § 12926, subd. (i)(3).) Guerrero was also able to perform essential job duties without reasonable accommodations. He thus satisfied the first two elements required for a prima facie case. What is not clear is whether Guerrero was subjected to an adverse employment action—termination, or failure to rehire— because of the disability.

Even if Guerrero's evidence showed a prima facie case giving rise to a presumption of discrimination, however, the employer may dispel the presumption by articulating a legitimate, nondiscriminatory reason for the challenged action. (Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 112.) Lance Westphal, AmeriPride Regional Vice President, stated that business needs required AmeriPride to put someone into Guerrero's job while he was on extended leave, and two other production supervisors took on and shared Guerrero's duties. The existing employees' absorption of Guerrero's duties worked so well from a business standpoint that no one was ever hired to replace Guerrero and his position was eliminated. Westphal (and Wenzel) stated that the consolidation of duties saved costs to AmeriPride during a time when cost-saving measures were critical. Westphal also testified in deposition that when Guerrero went on leave, current floor supervisors took over Guerrero's job duties, and Guerrero's job was eliminated. Previously three supervisors performed the type of work Guerrero did, but since Guerrero's leave, AmeriPride organized the department so that two supervisors performed that work. An employer is not required to reinstate an employee on worker's compensation leave if business realities compelled the employer to replace the worker. (Barns v. Workers' Comp. Appeals Bd. (1989) 216 Cal.App.3d 524, 535.)

Guerrero claims that the trial court failed to rule on his objections to declarations of Westphal and Wenzel. At the February 2, 2010, hearing on the summary judgment motion, the trial court appeared not to have seen plaintiff's objections, but instructed plaintiff to file objections and the court would read them. In the April 28, 2010, hearing on plaintiff's motion for reconsideration, the trial court stated that it had ruled on the objections submitted with the motion for reconsideration, and to the extent the motion was based on not ruling on objections, the trial court stated that it had ruled on those objections and had overruled the majority of them.
Plaintiff objected to Westphal's declaration as containing hearsay and statements made without personal knowledge. Westphal's statements to which plaintiff objected are not hearsay; they are not evidence of a statement that was made other than by a witness testifying at the hearing (Evid. Code, § 1200, subd. (a).) With regard to the requirement that declarations are to be made on personal knowledge (Code Civ. Proc., § 437c, subd. (d), Westphal's declaration stated that unless stated on information and belief, Westphal had personal knowledge of the facts in the declaration. Westphal's declaration stated on information and belief that Guerrero went out on a worker's compensation leave in February 2005, Guerrero did not return to work for almost two and onehalf years, and Westphal was not familiar with the nature of his medical condition that led to the leave. These statements, however, are undisputed. Westphal also stated that he was informed and believed that AmeriPride had two other production supervisors take on and share Guerrero's duties, and that having Guerrero's duties absorbed by existing employees worked so well from a business standpoint that no one was ever hired to replace him. Westphal, however, also testified in his deposition that when Guerrero went on leave, current floor supervisors took over his job duties and Guerrero's job was eliminated. Previously three supervisors performed the type of work Guerrero did, but since Guerrero's leave, AmeriPride organized the department so that two supervisors performed that work.
Guerrero also objected to two statements in the declaration of Matthew Wenzel, General Manager of AmeriPride's Los Angeles Branch, as hearsay and made without personal knowledge. Neither statement in Wenzel's declaration to which plaintiff objected is hearsay; they are not evidence of a statement that was made other than by a witness testifying at the hearing (Evid. Code, § 1200, subd. (a).) With regard to the requirement that declarations are to be made on personal knowledge (Code Civ. Proc., § 437c, subd. (d), Wenzel's declaration stated that unless stated on information and belief, Wenzel had personal knowledge of facts in the declaration. Wenzel stated that he was informed and believed that during Guerrero's leave of absence, his job duties were absorbed by existing employees, at least one of whom was over 40 at the time. This evidence, not made on Wenzel's personal knowledge, was not sufficient to establish his personal knowledge, and should have been excluded. (Overland Plumbing, Inc. v. Transamerica Ins. Co. (1981) 119 Cal.App.3d 476, 483.) This inadmissible evidence, however, does not change the result, because the same fact was stated in Westphal's declaration, to which plaintiff made no objection. Wenzel's declaration also stated: "Mr. Guerrero was gone for well over two years and until he was released, we believed he would not be coming back, based on the length of time he was out and on the doctor's notes that were received. His job was eliminated from the organization." Wenzel's declaration does not state that this statement was made on information and belief, and therefore it is not made inadmissible because of lack of personal knowledge.

In his declaration, Guerrero stated that in late December 2007 he met with Luis Lopez, Chief Engineer at AmeriPride, and told Lopez that he wanted to go back to work and to be paid for wages he had lost since July 13, 2007. Guerrero declared that in a second meeting shortly afterward, Lopez agreed that Guerrero could return to his position and would be paid for wages lost. Guerrero's declaration stated, however, that when he met with Lopez and Wenzel on January 3, 2008, Wenzel reneged on Lopez's promise to give him his job back. In his deposition testimony, however, Guerrero stated that he was able to return to work beginning on July 13, 2007, and until October 2007, but his symptoms returned in October 2007 and prevented him from working. Thus Guerrero could not show that he could perform essential job duties with or without reasonable accommodations after October 2007. Thus he could not make a prima facie case that AmeriPride's refusal to rehire him in early January 2008 discriminated against him based on his disability.

Defendant AmeriPride's articulation of a legitimate, nondiscriminatory reason for terminating or not rehiring Guerrero dispels the presumption of discrimination. Guerrero has provided no additional evidence of discriminatory motive, that AmeriPride's proffered reason was a pretext for discrimination or was dishonest (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 356) or that the challenged action resulted from discriminatory animus rather than from other causes (Reeves v. Safeway Stores, Inc., supra, 121 Cal.App.4th at p. 112). "When there is no disputed issue of material fact that the employer had a nondiscriminatory reason for the adverse employment decision, the employer is entitled to summary judgment." (Knight v. Hayward Unified School Dist., supra, 132 Cal.App.4th at p. 129.) Summary judgment was therefore properly granted on the disability discrimination claim.

5. The Statutory Limitations Period Barred the Invasion of Privacy Claim

The cause of action for invasion of privacy requires (1) public disclosure of (2) private facts which are (3) offensive and objectionable to a reasonable person of ordinary sensibilities. (Shanahan v. State Farm General Ins. Co. (2011) 193 Cal.App.4th 780, 789, fn. 3.) The complaint alleged that AmeriPride invaded Guerrero's privacy by falsely accusing him of sexual harassment of a female employee, and that defendant knew the accusation was false because the employee, Marisela Trejo, had already denied it. This occurred in August of 2004.

As an action for "injury to . . . an individual caused by the wrongful act or neglect of another," an action for invasion of privacy must be filed within the two-year limitations period in Code of Civil Procedure section 335.1. The accusation and investigation of alleged sexual harassment constituting the invasion of privacy occurred in August 2004. Therefore the statute of limitations barred Guerrero's claim for invasion of privacy in his complaint filed on October 20, 2008.

Guerrero briefly argues that his extended medical leave, from February 2005 to July 2007, should toll the limitations period. He provides no authority that his medical leave tolled the limitations period.

Guerrero also argues that he did not know he had a claim for invasion of privacy until he was terminated and sought legal assistance. The two-year statutory limitations period begins to run when (1) all elements of the claim are complete and (2) plaintiff knew or should have known of the claim. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397.) A plaintiff discovers the cause of action when he at least suspects a factual basis, as distinct from a legal theory, for its elements. (Ibid.) Guerrero knew all facts necessary to the cause of action in August 2004. Ignorance of the cause of action, and delay in seeking legal assistance, do not toll the statutory limitations period. (Gutierrez v. Mofid (1985) 39 Cal.3d 892, 898.)

The trial court correctly granted summary judgment on the invasion of privacy claim as barred by the statutory limitations period.

6. Guerrero Failed to Establish a Prima Facie Case of Retaliation

Government Code section 12940, subdivision (h) makes it an unlawful employment practice "[f]or an employer . . . to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part." To establish a prima facie case of retaliation under the California Fair Employment and Housing Act (FEHA), a plaintiff must show: "(1) he engaged in a 'protected activity,' (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz).)

A retaliation claim may be brought by an employee who has complained of, or opposed, conduct that the employee reasonably believes to be discriminatory. (Yanowitz, supra, 36 Cal.4th at p. 1043.) Guerrero's complaint alleged that as a consequence of his repeated complaints about having to work the night shift in addition to his own day shift, AmeriPride retaliated against him by falsely accusing him of sexual harassment and intimidating him to sign a warning for misconduct in deliveries when all deliveries had been satisfactorily completed. Guerrero's complaints about having to work the night shift in addition to his own day shift, however, were not opposition to practices forbidden under the FEHA (Gov. Code, Tit. 2, Part 2.8), and were not the filing of a complaint, testimony, or assistance in any proceeding under the FEHA.

Thus Guerrero's complaint failed to allege that he engaged in a "protected activity." In his deposition, Guerrero testified that he never complained to anyone at AmeriPride about harassment, discrimination, or retaliation. Guerrero further testified that he did not know if AmeriPride retaliated against him. Therefore Guerrero has failed to establish a prima facie case of retaliation.

On appeal Guerrero attempts to recharacterize his complaints to Chasey, his supervisor, about Chasey's distinction between Guerrero and woman drivers as complaints of disparate treatment because of his age. The complaint, however, did not allege that Guerrero complained to Chasey about Chasey's distinction between Guerrero and woman drivers or that Guerrero complained about age discrimination. " 'The complaint serves to delimit the scope of the issues before the court on a motion for summary judgment [citation], and a party cannot successfully resist summary judgment on a theory not pleaded.' " (Bosetti v. United States Life Ins. Co. in City of New York (2009) 175 Cal.App.4th 1208, 1225.) A plaintiff on appeal cannot obtain reversal of summary judgment on theories of liability not alleged in his complaint (Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342), and may not defeat a summary judgment motion by producing evidence to support claims that are outside the issues framed by the pleadings (Vournas v. Fidelity Nat. Title Ins. Co. (1999) 73 Cal.App.4th 668, 674, fn. 6).

The trial court correctly granted summary judgment on the retaliation claim.

DISPOSITION

The judgment is affirmed. Costs on appeal are awarded to defendant AmeriPride Services, Inc.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J. We concur:

KLEIN, P. J.

CROSKEY, J.