2015-00184064-CU-OE

James D. Newman vs. The Regents of the University of Ca

Nature of Proceeding: Motion for Summary Judgment and/or Adjudication

Filed By: Yeung, Timothy G.

*** If oral argument is requested, the parties are directed to notify the clerk and opposing counsel at the time of the request which of moving defendant’s 139 Undisputed Material Facts, which of plaintiff’s 27 Additional Material Facts and/or which of the objections to evidence will be addressed at the hearing. The parties should be prepared to point to specific admissible evidence which is claimed to show the existence or non-existence of a triable issue of material fact. ***

Defendant The Regents of the University of California’s (“UC”) motion for summary judgment or in the alternative, summary adjudication of the six individual causes of action alleged by plaintiff is GRANTED, as follows.

Moving counsel failed to comply with the mandatory provisions of CRC Rule 3.1350(b), requiring that the issues presented for summary adjudication be stated in the notice of motion and then repeated verbatim in the separate statement. Counsel is advised that future motions for summary adjudication which do not comply with this or other applicable requirements may be stricken.

The opposition papers were not timely filed or served but were nevertheless considered. Counsel is advised that future untimely oppositions may not be considered.

Several of the opposition papers fail to comply with CRC Rule 3.1110(b)(1), (3) and (4).

Opposing counsel failed to comply with CRC Rule 3.1350(g), requiring a single volume of evidence (including all declarations) with a table of contents when evidence exceeds 25 pages, and Rule 3.1350(f), requiring a response claiming a material fact is disputed to include reference to the exhibit, title, page, and line numbers so the Court need not exhaust already scarce resources scouring pages of evidence in an attempt to find the relevant line(s).

Opposing counsel also failed to comply with CRC Rule 3.1116(a), relating to the use of deposition testimony as an exhibit.

Factual Background

This action arises out of plaintiff’s employment with defendant UC as a “CT Technologist.” Plaintiff’s complaint asserts six causes of action age discrimination, retaliation, hostile work environment harassment, failure to prevent, defamation and breach of the covenant of good faith and fair dealing.

In short, plaintiff claims that for years he enjoyed the respect of his co-workers and

received favorable job evaluations until a new supervisor, Mr. Patterson, was assigned in May 2013. Plaintiff found Mr. Patterson to be “cold and quiet” and according to plaintiff, the staff thought he did not have sufficient experience to run the trauma center. About a year later, plaintiff chose to return to his earlier “graveyard shift” so he would encounter Mr. Patterson less. Around the same time, Mr. Patterson gave plaintiff a “Letter of Expectation” (“LOE”) for failing to timely upload CT scans for the doctor’s review and compromising “patient care,” something which plaintiff disputes. Under the applicable Collective Bargaining Agreement (“CBA”), a LOE is “typically not considered discipline…and thus not grievable.” (Underline added for emphasis.) About four months later, plaintiff received a second LOE for violating UC’s dress code/personal appearance policy by wearing headphones “during a lull” in work. Mr. Patterson was concerned that plaintiff might not be able to hear a patient or co-worker in distress and that a patient could have seen plaintiff wearing headphones while on duty. Again, plaintiff contends this LOE was inappropriate for several reasons even though another employee was “written up” for the same violation. Plaintiff received a third LOE in early 2015 for unplanned absences in excess of UC’s policy but he insists his absences were due to the “friction” with Mr. Patterson. None of the three LOEs caused plaintiff to lose any compensation or benefits.

In evaluating plaintiff’s performance for the preceding year, Mr. Patterson in January 2015 concluded overall that plaintiff ‘needed improvement’ particularly in accepting ‘management decisions’ and provided two goals for 2015 including “communication skills,” while also praising plaintiff for others things he did well. Although it does not appear that the overall “improvement needed” evaluation of affected plaintiff’s compensation or benefits, he now contends that some of the specifics mentioned in the evaluation are “untruthful” and despite not adding any such comment at the time, plaintiff did speak with the Chief Administrative Officer of the Department of Radiology about the evaluation. However, plaintiff resigned before a further review of the evaluation was completed because he feared losing his job. UC maintains no further discipline was contemplated at the time of plaintiff’s resignation.

In addition to the LOEs and the performance evaluation in January 2015, plaintiff alleges he was also subjected to a number of incidents constituting “verbal harassment” or “verbal discipline” at the hands of Mr. Patterson that were motivated by plaintiff’s age (40-plus). As support, plaintiff cites overhearing Mr. Patterson once say he “preferred” younger techs because they need less time off for children and contends older employees were disciplined more severely than younger ones.

Plaintiff also asserts that he voiced concerns about Mr. Patterson’s management to other management at UC and the union and believes Mr. Patterson was aware of these complaints, which would explain the latter’s reason for targeting plaintiff for termination.

Moving Papers. Defendant UC now moves for summary judgment/adjudication on the ground that each cause of action fails for various reasons and that plaintiff cannot present evidence sufficient to establish any triable issues of material fact, thereby entitling UC to judgment as a matter of law. As support for summary adjudication of the first four causes of action brought under the Fair Employment and Housing Act (“FEHA”), defendant cites Undisputed Material Fact (“UMF”) Nos. 1-139 but relies on just a small portion of these UMF in connection with the two non-FEHA causes of action.

Opposition. Plaintiff opposes the motion, arguing that he was a good and respected employee while Mr. Patterson lacked supervisory experience and made bad business decisions, ultimately targeting plaintiff for termination through a series of LOEs along with an “intentionally false and devastating” performance evaluation. However, the opposition effectively admits that plaintiff never suffered any loss of compensation or benefits as a result and that he ultimately chose to resign from UC in favor of employment with Sutter Health. Still, plaintiff contends that a result of illegal discrimination (and possibly harassment and/or retaliation, neither of which is meaningfully addressed in plaintiff’s memorandum of points & authorities) he suffered financial losses in excess of $500,000 because Sutter Health’s benefits are less generous. The opposition also contends that a number of the UMF offered by UC are “disputed” but in several instances, plaintiff failed cite any evidence whatsoever to dispute them (see, e.g., UMF Nos. 9-13, 26-28, 31, 45-46, 50, 54-55, 61-63, 74-75, 86, 100-101, 104, 109, 118) and thus, plaintiff must be reminded of the “Golden Rule” of summary judgment/adjudication: “If it is not set forth in the separate statement, it does not exist.” (See, Zimmerman, Rosenfeld v. Larson (2005) 131 Cal.App.4th 1466, 1477 (italics in original).) In those instances where plaintiff did include a citation to evidence, he did not include any page/line citation for the evidence as required by CRC Rule

3.1350(f) and thereby caused a needless waste of already scarce judicial resources. (See, e.g., UMF Nos. 23, 37-40, 49, 70, 84-85, 91, 110, 116, 128-129, 131.) Finally, plaintiff also offered 27 of his own Additional Material Facts (“AMF”) claimed to create triable issues of fact precluding summary judgment/adjudication but the opposition appears to concede that summary adjudication of the final cause of action for breach of the implied covenant of good faith is appropriate.

Objections to Evidence

Plaintiff’s written objections to evidence are overruled. Most of the asserted objections go to the weight of the evidence, not its admissibility. To the extent plaintiff has also “objected” to a number of defendant’s UMF themselves on various grounds (e.g., conclusory, foundation, relevance, speculation, misstates the evidence, etc.), such objections are overruled because objections are properly directed solely at evidence. (See, CRC Rules 3.1352, 3.1354.)

Defendant UC’s written objections to plaintiff’s evidence are sustained except for objection No. 1, which is overruled. To the extent UC has also “objected” to a number of plaintiff’s AMF themselves on various grounds (e.g., “non-material,” vague and ambiguous, foundation, speculation, etc.), such objections are overruled because objections are properly directed solely at evidence. (See, CRC Rules 3.1352, 3.1354.) Additionally, CRC Rule 3.1354(b) expressly prohibits the restating or rearguing of objections in the separate statement.

Analysis

The FEHA. At the outset, it must be pointed out that the FEHA on which each of plaintiff’s first four causes of action is premised is not a “civility code” designed to rid the workplace of all unpleasant conduct. (See, e.g., Pantoja v. Anton (2011) 198 Cal.App.4th 87, 92.) Instead, the FEHA merely proscribes certain conduct including discrimination and retaliation (both of which require some “adverse employment action” (see, e.g., Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1035-1036)) as well as harassment (which requires conduct so “severe or pervasive” as to create an objectively intolerable work environment (see, e.g., Serri v. Santa Clara University

(2014) 226 Cal.App.4th 830, 869) that is motivated by some characteristic and/or conduct expressly “protected” by the FEHA statutes (e.g., age, gender, race, religion, sexual orientation, etc.)) Offensive or annoying conduct not motivated by “protected” characteristics and/or conduct does not violate the FEHA and thus, in Mokler v. County of Orange, it was held that a hostile work environment claim could not be based on isolated conduct which was simply rude, boorish, inappropriate and offensive. (Mokler v. County of Orange (2007) 157 Cal.App.4th 121.)

Moreover, it is important to discern the differences between harassment and discrimination, the latter of which encompasses retaliation. The Sixth District Court of Appeal recently explained in Serri that harassment actionable under FEHA consists of conduct which is not necessary to one’s job performance and is “presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives [citing Reno v. Baird (1998) 18 Cal.4th 640, 646]” and “is distinguishable from discrimination,” with the latter “refer[ring] to bias in the exercise of official actions on behalf of the employer.” (Serri, at 869.) The Sixth District added, “[T]he Legislature intended that commonly necessary personnel management actions such as hiring and firing, job or project assignments, office or work station assignments, promotion or demotion, performance evaluations, the provision of support, the assignment or nonassignment of supervisory functions, deciding who will and who will not attend meetings, deciding who will be laid off, and the like, do not come within the meaning of harassment” since “[t]hese are actions of a type necessary to carry out the duties of business and personnel management” and “may retrospectively be found discriminatory if based on improper motives, but in that event the remedies provided by the FEHA are those for discrimination, not harassment.” (Serri, at 870 (emphasis added); see also, 2. Cal. Code of Regs. §11019(b)(1) [defining verbal, physical and visual harassment actionable under FEHA].)

Additionally, under California Supreme Court precedent, an employer’s reasons for taking action against an employee need not be correct, wise or prudent, so long as the employer did not act with a motive to discriminate on account of one’s “protected” characteristics and/or conduct. (See, Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 358.) As such, an employer cannot be liable for discrimination or retaliation if its actions were nothing more than foolish, imprudent or mistaken since this type of conduct is not prohibited by the FEHA.

In light of the foregoing, the opposition’s contentions that (1) plaintiff was a good or respected worker, (2) plaintiff and others felt Mr. Patterson lacked supervisory experience and made bad business decisions, and (3) plaintiff and others believed Mr. Patterson was targeting plaintiff for termination are, without more, generally insufficient to establish any triable issue of material fact relating to any of the FEHA-based causes of action for discrimination, retaliation, harassment and failure to prevent.

Age Discrimination. Defendant UC seeks summary adjudication of the first cause of action on the grounds that (1) plaintiff voluntarily resigned from his employment with UC and did not otherwise suffer any “adverse employment action” while employed by UC; (2) even if he did suffer adverse action, he cannot establish it was motivated by his age; (3) even if plaintiff can establish a prima facie case of age discrimination, UC had legitimate, non-discriminatory business reasons for each adverse action; and (4) plaintiff cannot show that that UC’s stated legitimate, non-discriminatory reasons were mere pretext for a motivation to treat plaintiff differently because of his age. Since the Court finds that defendant UC’s moving papers are sufficient to satisfy its initial burden

under Code of Civil Procedure §437c(p)(2) with respect to this first cause of action, thereby shifting to plaintiff the burden to produce admissible evidence sufficient to demonstrate the existence of at least one triable issue of material fact which precludes judgment as a matter of law in UC’s favor on the age discrimination claim.

(1) In regard to the first ground (i.e., no “adverse employment action”), the opposition contends in response to UMF 16 that plaintiff took a 5% pay reduction when he chose to return to the graveyard shift in an attempt to limit his contact with Mr. Patterson. However, plaintiff’s own voluntary decision to accept a pay cut in order to avoid Mr. Patterson does not constitute actionable adverse action by UC and even if it did, there is no evidence that plaintiff’s age motivated this transfer. Thus, there is no triable issue of material fact in connection with UMF 16.

While the opposition suggests in response to UMF Nos. 19, 20, 25 and 50 that the three LOEs plaintiff received are “corrective actions” and therefore constitute adverse employment action necessary to prove a discrimination cause of action, the only evidence cited by plaintiff (Pl. Ex. 11 (erroneously referred to as Pl. Ex. 12 and to which UC’s objection has been sustained)) plainly states that a LOE is “the first step in the corrective process” but expressly clarifies that an LOE is “typically not considered discipline.” (Underline added for emphasis.) Notably, plaintiff’s points and authorities do not appear address this threshold question of adverse employment action despite its being an essential element of any discrimination claim and the opposition includes no authority whatsoever for the proposition that non-disciplinary corrective actions (not affecting plaintiff’s compensation or other benefits) could somehow ‘materially affect the terms, conditions or privileges of employment’ so as to constitute adverse action necessary to obtain a remedy under current California law. (See, e.g., Yanowitz, at 1049.) But even if there were authority indicating that such non-disciplinary corrective actions could be construed as adverse employment action, UC has produced evidence to support a finding that each of the 3 LOEs plaintiff received were prompted by legitimate, non-discriminatory business reasons. (See UMF Nos. 17-18, 26-50). Notably, plaintiff’s response to each of these UMF is “undisputed” (see UMF Nos. 17-18, 29-30, 32-36, 41-44, 47-49), cites no evidence whatsoever to establish any genuine disputed fact (see UMF Nos. 26-28, 31, 45-46, 50) or cites evidence which is insufficient to establish a triable issue of fact relating to the legitimate, non-discriminatory business reasons proffered by UC for the actions allegedly taken against plaintiff (as opposed to other employees at UC) since under current law an employer’s reasons for taking action against an employee need not be correct, wise or prudent, making plaintiff’s disagreement with the accuracy of and/or justification for these LOEs insufficient to preclude summary adjudication (see UMF Nos. 37-40).

Similarly, plaintiff has failed to produce evidence sufficient to establish that the “Improvement Needed” evaluation he received in January 2015 itself ‘materially affected the terms, conditions or privileges of his employment’ so as to constitute a form of adverse employment action essential to prevail on this claim for discrimination. This performance evaluation is the focus of UC’s UMF Nos. 54-75 and plaintiff not only expressly admits 14 of these 22 UMF are undisputed (see, UMF Nos. 56-60, 64-69 and 71-73) but also effectively concedes another 7 are undisputed inasmuch as he failed to cite any evidence whatsoever in response to them (see, UMF Nos. 54-55, 61-63 and 74-75). The evidence which plaintiff did cite in response to UMF 70 (albeit without specifying the page/line of the relevant passage) does not create a triable issue of material fact since the claimed dispute over UMF 70 does not tend to show this January 2015 evaluation actually constituted adverse employment action but at

best, merely reflects plaintiff dispute over the accuracy and/or justification for one particular statement in the evaluation (even though the case law cited above confirms that an employer’s actions need not be correct, wise or prudent, so long as not motivated by any characteristic or conduct “protected” under the FEHA (see, Guz, at 358)). Although the opposition also suggests that an “Improvement Needed” evaluation may either preclude an employee from obtaining a promotion or lead to his/her eventual dismissal, the Court finds no admissible evidence to establish such a contention and more importantly, UMF Nos. 74-75 (neither of which is “disputed” by reference to any evidence) demonstrate that plaintiff himself received a promotion from UC in the past and had not been terminated despite having previously received a similar “Improvement Needed” evaluation.

Coupled with plaintiff’s effective admission (by failing to cite any contradictory evidence) in response to UMF 63 that he did not actually suffer any loss of pay, benefits or other privileges as a result of this performance evaluation and plaintiff’s failure to provide any legal authority for the proposition that an evaluation which does not affect one’s compensation, benefits or privileges can be considered adverse employment action, the Court finds that plaintiff has failed to establish a triable issue of fact relating to whether he suffered any adverse employment action necessary to support his first cause of action for age discrimination and for these reasons, defendant UC is entitled to judgment as a matter of law on this cause of action.

(2) Even assuming the opposition had established a triable issue of fact relative the threshold question of whether plaintiff suffered any adverse employment action, defendant UC contends that plaintiff cannot produce evidence that any of the alleged adverse actions were in any way motivated by his age (40-plus). With respect to the first LOE for failing to timely upload CT scans (addressed in UMF Nos. 17-31), plaintiff conceded at deposition he had no reason to believe this LOE was motivated by his age and regardless, the opposition’s response to UMF 31 cites no admissible evidence which competently shows Mr. Patterson issued this first LOE because plaintiff was over 40 years old. At best, the opposition merely shows plaintiff believed this LOE was the result of personal animosity with Mr. Patterson but as explained above, the FEHA only prohibits adverse actions based on a handful of specified “protected” characteristics and conduct. With respect to the second LOE for a dress code violation for wearing headphones (addressed in UMF Nos. 32-42), the opposition cited no evidence which so much as suggests that this second LOE was motivated by plaintiff’s age and instead, again insists this LOE was motivated by Mr. Patterson’s “malice for Plaintiff.” However, personal malice or ill will is not prohibited by the FEHA and thus, the second LOE does not establish any illegal age discrimination against plaintiff. The opposition admits in response to UMF Nos. 47-48 that the third LOE for excessive absences (addressed in UMF Nos. 43-50) was issued to plaintiff at a time when he had in fact been absent from work and regardless, none of the responses to UMF Nos. 43-50 includes reference to any (admissible) evidence which could support an inference that the third LOE was motivated by plaintiff’s age. Finally, in regard to the January 2015 “Improvement Needed” evaluation (addressed in UMF Nos. 51-75), plaintiff cited no evidence in response to UMF Nos. 51-75 which suggests that this evaluation was attributable to his age and in fact seems to argue the unfavorable evaluation was instead motivated by the disagreements and malice between plaintiff and Mr. Patterson.

Although not specifically related to any of the three LOEs or the January 2015 evaluation, plaintiff does nevertheless assert Mr. Patterson treated him differently

because of his age based on the various occurrences described in UMF Nos. 92-113 but for several reasons, they are insufficient to create a triable issue of fact which precludes summary adjudication of the age discrimination cause of action. First, the “stray remarks” outside the decision-making process which plaintiff attributes to Mr. Patterson in UMF Nos. 92-95 are under existing California law insufficient to establish a discriminatory intent and are entitled to virtually no evidentiary weight. (See, e.g., Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 809-810; Merrick v. Farmers Insur. Group (9th Cir. 1990) 89 F.2d. 1434, 1438-1439.) Second, the claim that Mr. Patterson disciplined older employees more severely than younger ones, as discussed in UMF Nos. 96-101, also fails to establish the three LOEs and/or the January 2015 evaluation were motivated by plaintiff’s age since none of them has been shown to constitute “disciplinary” action against plaintiff (see above), there is no evidence that Mr. Patterson was aware of the incident involving the “younger” employee whom plaintiff insists was not disciplined for conduct resulting in older employees being “written up,” and plaintiff concedes a younger employer making a mistake for the first time may warrant only a verbal warning while a more experienced employee making the same mistake may justify a LOE.

Likewise, while plaintiff maintains that Mr. Patterson allowed a younger female worker to wear clothes which violated the dress code, the evidence cited in connection with UMF Nos. 107-110 indicates not only that plaintiff did not know whether Mr. Patterson spoke to the younger worker about the dress code violation but also that Mr. Patterson did actually speak to her about the violation. Plaintiff further admits Mr. Patterson’s delay in approving vacation requests was due to his workload and not a deliberate effort to treat older employees differently (see, UMF Nos. 111-112) and his claim that Mr. Patterson intentionally hired younger employees (UMF Nos. 102-106) is without evidentiary support given he is only one of a three-person panel making hiring decisions and the panel is not provided with the ages of the applicants. Notably, plaintiff maintains that he made several verbal and written complaints about Mr. Patterson to UC management but he admits none stated that Mr. Patterson was treating employees differently on account of their age. (See, UMF Nos. 117-121.)

Plaintiff’s own 27 AMF also fail to cite admissible evidence sufficient to create a triable issue of material fact on the question of whether any of Mr. Patterson’s alleged adverse employment actions against plaintiff were motivated in whole or part by the latter’s age. AMF Nos. 1-8 do not relate to any issue bearing on plaintiff’s age but AMF Nos. 9-13 assert that “data” produced by defendant UC tends to show Mr. Patterson’s differential treatment based on one’s age. In particular, AMF states that nine of the 10 employees disciplined by Mr. Patterson in the 2013-2015 time period were over 40 years of age and 10 of the 11 people hired during that same period were under 40. These statistics relating to hiring are inapposite since, as shown above, Mr. Patterson is simply one person on a three-person panel responsible for hiring decisions and since the opposition fails to include evidence of the number of applicants, if any, who were 40 years or older. The statistics regarding discipline imposed by Mr. Patterson is equally deficient inasmuch as it remains unclear how many employees under his supervision are over 40 and how many are under 40. Without this missing information, it is impossible for a reasonable factfinder to conclude that was targeting 40-plus employees unfairly and without additional details about each incident of discipline of those over 40, it is impossible to ascertain whether any specific disciplinary action was justified under the circumstances (keeping in mind that an employer’s reasons for taking action against an employee need not be correct, wise or prudent so long as not motivated by conduct or a characteristic “protected”

under the FEHA) or was the result of some intent to treat older workers more harshly than younger ones. This data on Mr. Patterson’s disciplinary actions in the 2013-2015 time period is unavailing for the additional reason that plaintiff was himself not “disciplined” during this time given that neither the LOEs nor the January 2015 evaluation were by their own terms considered disciplinary actions.

(3) Even if the opposition could establish a triable issue of fact relative the question of whether any of the adverse employment actions allegedly suffered by plaintiff were motivated by Mr. Patterson’s intent to discriminate against employees over 40 years of age, UC has successfully overcome any prima facie presumption of discrimination by meeting its burden of producing evidence that there were legitimate, non-discriminatory reasons for each alleged adverse action. (See, e.g., Guz, at 355-356 [prima facie showing gives rise to rebuttable presumption of discrimination, which may be rebutted by employer by demonstrating a legitimate, non-discriminatory reason for adverse employment action].) As explained above, UC has provided a legitimate, non-discriminatory reason for each of the three LOEs given to plaintiff, and the opposition has failed to produce evidence which creates a triable issue of fact with respect to these reasons. (See, UMF Nos. 17-50.) In particular, plaintiff admits that the CT technologist who performs the scan is required to upload it for the doctor’s review and that for this incident prompting the first LOE, the technologist plaintiff asked to do it for him failed to do so. (See, UMF Nos. 28-30.) Likewise, plaintiff admits he was in fact wearing headphones before he received the second LOE and despite disagreeing with Mr. Patterson’s claim the headphones violated the dress code or created a safety issue, the opposition has provided no evidence that Mr. Patterson’s assessment of the situation was either illegitimate or discriminatory. (See, UMF Nos.

35-42.) The opposition admits in response to UMF Nos. 47-48 that plaintiff had indeed been absent from work on the dates identified in the third LOE, thereby confirming Mr. Patterson had a legitimate, non-discriminatory reason for issuing this LOE.

Furthermore, as discussed above, the opposition has offered no admissible evidence sufficient to create a triable issue of fact relative to the legitimate, non-discriminatory reasons for the January 2015 “Improvement Needed” evaluation and while plaintiff maintains that Mr. Patterson’s statements and assessment of the former’s performance was inaccurate and motivated by malice, California law holds that an employer’s performance evaluation necessarily has subjective components and merely being characterized as inaccurate or unduly harsh does not, without more, make it discriminatory. Finally, for the reasons already explained, the Court finds that none of plaintiff’s 27 AMF creates a triable issue of fact with respect to UC’s proffered legitimate, non-discriminatory reasons for the allegedly adverse employment actions.

(4) With UC having established legitimate, non-discriminatory reasons for the adverse employment actions alleged by plaintiff, the burden shifts to plaintiff to produce “substantial evidence” sufficient to enable a factfinder to reasonably determine that UC’s stated legitimate, non-discriminatory reasons were untrue or mere pretext for its intent to treat plaintiff differently because he was at least 40 years old, keeping in mind that the employer’s decision still need not be wise or objectively correct and that plaintiff must ultimately produce evidence sufficient to allow a reasonable trier of fact to conclude the employer’s true motivation was more likely than not motivated by a discriminatory animus. (See, e.g., Guz, at 356-359; Horn, at 806-807; Bareno v. San Diego Community College District (2017) 7 Cal.App.5th 546, 560.) This “substantial evidence” burden was clarified in the Sixth District’s Serri opinion:

The [employee] cannot simply show that the employer’s decision was wrong or

mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent. [Citations.] Rather, the [employee] must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them “unworthy of credence,” [citation], and hence infer “that the employer did not act for the [the asserted] non-discriminatory reasons.” ([Hersant v. Dept. of Social Services (1997) 57 Cal.App.4th 997, 1005 (italics in original)].) “Logically, disbelief of an Employer’s stated reason for a termination gives rise to a compelling inference that the Employer had a different, unstated motivation, but it does not, without more, reasonably give rise to an inference that the motivation was a prohibited one. (McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510, 1531-1532.)” (Serri, at 863.)

Because this Court has already determined that the opposition’s evidence is insufficient to create a triable issue of material fact relative to whether the alleged adverse employment actions were motivated by an intent to discriminate on account of plaintiff’s age and relative to the employer’s proffered legitimate, non-discriminatory reasons for the allegedly adverse employment actions by Mr. Patterson, the Court holds that the opposition has necessarily failed to produce the requisite “substantial evidence” needed to show pretext and to permit a factfinder to conclude by a preponderance of the evidence the adverse actions were the result of age discrimination.

For all the foregoing reasons, the Court finds that UC is entitled to summary adjudication of plaintiff’s first cause of action for age discrimination.

Retaliation. Defendant moves for summary adjudication of the second cause of action on the grounds that (1) plaintiff did not engage in any activity which is “protected” under the FEHA; (2) even if he did, plaintiff suffered no adverse employment action for the same reasons cited in connection with the age discrimination cause of action; (3) even if plaintiff suffered some adverse action, he cannot establish that it was motivated by his “protected activity” particularly since plaintiff cannot demonstrate Mr. Patterson knew of plaintiff’s “protected activity;” and

(4) UC had legitimate, non-retaliatory reasons for its employment actions and plaintiff cannot show these reasons are pretext for an intent to retaliate for plaintiff’s “protective activity.” The Court again holds that the moving papers are sufficient to satisfy defendant UC’s initial burden under Code of Civil Procedure §437c(p)(2) and has successfully shifted to plaintiff the burden to produce admissible evidence sufficient to demonstrate the existence of at least one triable issue of material precluding summary adjudication of the retaliation claim.

Defendant UC is entitled to judgment as a matter of law on the retaliation cause of action because plaintiff has neither alleged nor established that he engaged in any activity which is “protected” under the FEHA, making Government Code §12940(h)’s anti-retaliation provision inapplicable to this case. It is well established that the parties’ pleadings are the starting point in a motion for summary judgment/adjudication proceeding as these pleadings effectively define what facts are “material” to the case and which are not. (See, e.g., FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381.) In the present action, plaintiff’s retaliation claim alleges in pertinent part:

73. Plaintiff engaged in a protected activity, i.e., speaking out on a matter of public concern. Plaintiff publicly protested the CT scheduling imposed by Anthony Patterson. Patterson’s inept assignments resulted in prolonged waiting times for incoming patients in the Emergency Room, as well as creating a financial burden on the University of California, a public trust, by requiring overtime work that could have been obviated by efficient scheduling.

74. Plaintiff attempted on numerous occasions to engage Patterson in a discussion of the scheduling, but Patterson refused to engage in a discussion. Patterson ordered Plaintiff to be silent and comply with Patterson’s dictates.

75. Plaintiff was and is harmed by the loss of salary and retirement benefits due to Plaintiff’s resignation from [UC].

76. Defendant’s conduct in retaliating against Plaintiff was a substantial factor in causing the harm.
(Underline added for emphasis.)

However, not all activity is “protected” under the FEHA and thus, not all activity can support a valid claim for retaliation under the FEHA. Government Code §12940(h) prohibits an employer from “discriminat[ing] against any person because the person has opposed any practices forbidden under this part [relating to the Department of Fair Employment and Housing] or because the person has filed a complaint, testified, or assisted in any proceeding under this part.” (Underline added for emphasis.) Yanowitz clarified that conduct which constitutes “protected activity” for purposes of the anti-retaliation provision of the FEHA includes not only when the employee opposes action that is ultimately found to by unlawfully discriminatory under the FEHA but also when the employee opposes action reasonably and in good faith believed to be discriminatory regardless of whether it is ultimately found to violate the FEHA, adding that “personal grievances” or “vague or conclusory remarks” that fail to put an employer on notice of some conduct which may be prohibited by the FEHA is not “protected activity.” (Yanowitz, at 1043, 1046-1047.) Because the complaint itself fails to allege that plaintiff engaged in any activity which can be fairly construed as opposing either discrimination or some other conduct proscribed by the FEHA but instead merely asserts that plaintiff “publicly protested” Mr. Patterson’s “inept” management decisions, plaintiff has not alleged he participated in any activity which triggers the protections afforded by the FEHA’s anti-retaliatory provision. Therefore, UC is entitled to judgment as a matter of law on the retaliation cause of action.

Additionally, to the extent plaintiff nevertheless asserts he did complain about Mr. Patterson’s alleged age discrimination, the opposition is devoid of any evidence demonstrating that Mr. Patterson was aware of such complaints. (See, UMF Nos. 121-125.) Without knowledge of this alleged “protected” activity, Mr. Patterson could not have had any intent to retaliate against plaintiff for his complaining about discrimination. For this reason as well, UC is entitled to summary adjudication of the cause of action for retaliation and the Court need not address the remaining grounds advanced in the moving papers (although several do appear meritorious and would likely independently compel summary adjudication of this cause of action).

Harassment. Defendant UC contends it is entitled to summary adjudication of the third cause of action for harassment because (1) plaintiff cannot establish that the actions which he complains of were so severe or pervasive as to create an objectively hostile work environment which no reasonable person would tolerate, (2) the actions which plaintiff claims created a hostile work environment were management decisions

which under California law cannot give rise to a cause of action for harassment, and

(3) plaintiff cannot establish that the actions which he complains of were motivated by his age or any other protected characteristic (gender, ethnicity, religion, sexual orientation, etc.) The Court finds that UC met its UC’s initial burden under Code of Civil Procedure §437c(p)(2) and thus, plaintiff now bears the burden of producing admissible evidence sufficient to show at least one triable issue of material which precludes summary adjudication of this harassment cause of action. As will now be shown, plaintiff failed to carry his burden and summary adjudication will be granted as to the harassment claim as well.

According to UMF Nos. 76-91, plaintiff specifically complains that Mr. Patterson engaged in the following harassing conduct: (1) issuing the three LOEs discussed above; (2) authoring the “Improvement Needed” evaluation in January 2015; (3) once telling plaintiff to “get back to cardiac;” (4) verbally reprimanding plaintiff for not carrying a “walkie-talkie” which all Lead CT Techs were asked to have so they could be reached wherever they were; (5) once asking plaintiff why he had not signed off on a “reaction kit;” (6) once ignoring plaintiff’s request for “slickers” for the exam tables and giving the “slickers” to a different tech; (7) banning sunflower seeds in the workplace, which plaintiff claims was targeted at him alone; (8) one time not advising plaintiff of a committee meeting; and (9) removing plaintiff’s belongings and name from a mailbox designated for the Lead CT Tech after plaintiff resigned from that position.

However, as pointed out above, the recent Serri decision expressly states that management decisions “such as hiring and firing, job or project assignments, office or work station assignments, promotion or demotion, performance evaluations, the provision of support, the assignment or nonassignment of supervisory functions, deciding who will and who will not attend meetings, deciding who will be laid off, and the like, do not [constitute] harassment” since they are necessary to the management of a business and its personnel. (Serri, at 870 (emphasis added).) This Court holds that all of the conduct which plaintiff now asserts was harassment is fairly characterized as fundamentally management and personnel decisions (which under Guz need not be correct, wise or prudent) and is therefore not a proper basis for a harassment cause of action. Even assuming that Mr. Patterson’s (1) once telling plaintiff to “get back to cardiac;” (2) verbally “reprimanding” plaintiff for not carrying a “walkie-talkie” which all Lead CT Techs were asked to have so they could be reached wherever they were; (3) once asking plaintiff why he had not signed off on a “reaction kit;” (4) once ignoring plaintiff’s request for “slickers;” (5) banning sunflower seeds; (6) once not telling plaintiff about a meeting; and (7) removing plaintiff’s belongings and name from a mailbox after he resigned is as a matter of law insufficient to establish any severe or pervasive offensive conduct which would create an objectively intolerable hostile work environment. Finally, the Court finds no admissible evidence which tends to show this allegedly harassing conduct by Mr. Patterson was motivated by any characteristic or conduct falling within the specific protections of the FEHA and accordingly, UC is as a matter of law entitled to summary adjudication of the harassment cause of action as well.

Failure to Prevent. Summary adjudication must also be granted as to this final cause of action under the FEHA inasmuch as each of the preceding FEHA causes of action fail as a matter of law for the reasons explained above.

Defamation. According to UC, plaintiff’s defamation cause of action is based on certain allegedly false statements contained in the “Improvement Needed” evaluation

of January 2015 but plaintiff cannot prevail on this claim because (1) the evaluation is privileged under Civil Code §47(c) and plaintiff cannot establish the “malice” necessary to overcome this (conditional) privilege and (2) California courts have held that statements in a performance evaluation do not give rise to a valid defamation cause of action unless the employee is accused of criminal behavior or portrayed as have reprehensible personal characteristics and neither of these occurred in plaintiff’s case. Again, the Court finds that UC’s moving papers are sufficient to satisfy its initial burden of production and have therefore shifted to plaintiff the burden to cite admissible evidence which demonstrates at least one triable issue of material fact which precludes judgment as a matter of law in UC’s favor on the defamation claim.

In response, the opposition argues that the conditional privilege asserted by UC was lost because of Mr. Patterson’s personal “malice” toward plaintiff, something demonstrated by “a long history of disputes, quarrels and ill-will between plaintiff and [Mr.] Patterson.” The opposition also curiously contends that malice is established by the publication of the false statement for an improper purpose (even though there appears to be no allegation in the complaint and no evidence in connection with this motion that the January 2015 evaluation was actually “published” to anyone other than plaintiff, something which would alone defeat the defamation claim (see e.g., CACI 1700)) and that Mr. Patterson’s own testimony confirms he did not keep records of the times plaintiff was not at his assigned CT scanner but the opposition does not appear to address at all defendant’s second ground (i.e., statements made in an employer’s performance evaluation ordinarily do not give support a defamation cause of action).

Paragraphs 93-94 of the complaint allege the January 2015 evaluation stated not only stated that “Plaintiff had neglected his duty, abandoned his patients and gone absent without explanation during Plaintiff’s work shifts” but also “assigned Plaintiff a shockingly poor performance score of ‘4,’ an intentionally false and devastating score that was unprecedented in Plaintiff’s nearly ten years of experience and which effectively destroyed Plaintiff’s career at [UC].” The defamation cause of action neither cites nor challenges any other statements or comments in the January 2015 performance evaluation, thereby limiting the Court’s consideration here. Additionally, this cause of action does not appear to accurately describe the first of these two allegedly defamatory statements from the January 2015 evaluation even though California law indicates that the words claimed to be defamatory be specifically pled if not identified verbatim. (See, e.g., Des Granges v. Crall (1915) 27 Cal.App.313, 315; Okun v. Superior Court (Maple Properties) (1981) 29 Cal.3d 442, 458-459.) In reality, the January 2015 evaluation remarks in pertinent part:

“There are many times that I have asked where you [plaintiff] were and other CT Staff including the charge did not know where you had gone. You leave the department without letting others know which affects teamwork, the work list and load. We have discussed this in the past.”

This comment, on its face, is not fairly characterized as stating or even reasonably inferring that plaintiff had either “neglected his duty” or “abandoned his patients” as alleged in Paragraph 93. Although it is doubtful that the above-quoted comment can be reasonably construed as suggesting plaintiff had “gone absent without explanation” as alleged in Paragraph 93, neither this nor the allegation about “an intentionally false” performance score of “4” (corresponding to “Improvement Needed”) is sufficient to establish an actionable defamation claim against UC.

First, UC’s moving points & authorities correctly cite existing California precedent for the general rule that statements included in an employer’s performance evaluation of an employee will not support a claim for defamation. (See, e.g., Randi W. v. Muroc Joint Unified School District (1997) 14 Cal.4th 1066, 1080 [citing Jensen v. Hewlett-Packard Co. (1993) 14 Cal.App.4th 958, 964-965].) Indeed, the Jensen Court opens with the following comment which has direct application to the case at bar:

“As a prelude to our holding, we express our strong judicial disfavor for libel suits based on communications in employment performance

reviews…” (Jensen, at 963 (underline added for emphasis).)

Although not offered the parties, the Court is aware of additional decisional law which indicates that defamation claims based on statements by an employer about an employee are barred from civil liability based on the workers’ compensation exclusivity rule set forth in Labor Code §3600 since they fundamentally represent an injury to the employee in the course and scope of his/her employment. (See, e.g., Charles J. Vacanti, M.D., Inc. v. State Compensation Insurance Fund (2001) 24 Cal.4th 800, 819-820.) Regardless, under existing precedent, a defamation claim against an employer for a statement in a performance evaluation may typically proceed only where based on “false accusations” of “criminal conduct, dishonesty, incompetence, or reprehensible personal characteristics or behavior.” (Randi W., at 1079 [citing Jensen, at 965].) Since plaintiff in the present case has neither alleged nor produced evidence of any statement which ‘falsely accuses’ him of any “criminal conduct, dishonesty, incompetence, or reprehensible personal characteristics or behavior,” UC is entitled to judgment as a matter of law on this cause of action.

Second, even assuming the statement about other CT staff not knowing where plaintiff was could be construed as an accusation that plaintiff was either dishonest or incompetent, the opposition includes no evidence that this statement was actually false, a necessary element of defamation. For example, the opposition makes clear that plaintiff does not believe Mr. Patterson was unable to locate plaintiff “many times” but the opposition includes no evidence as to how many times it actually did occur, something that would probably not be known to plaintiff himself (since he would not have been present when it occurred). The opposition’s response to UMF Nos. 68-69 admits that plaintiff is a smoker who must not only leave the building but also cross the street in order to comply with UC’s “smoke-free campus” policy, which at a minimum supports the proposition that plaintiff would have stepped away from his assigned scanner on a number of occasions during the time period encompassed by the January 2015 evaluation and plaintiff admitted during deposition that he had on at least one occasion prior to this evaluation discussed with Mr. Patterson the latter’s concerns about plaintiff not letting others know where he was going. (See UMF 67.) Moreover, plaintiff’s own AMF Nos. 22-23 indicate that his duties would often cause him to be in a number of areas of the workplace other than at his assigned scanner, which also supports Mr. Patterson’s comment that it this occurred “many times.” Finally, the crux of this comment by Mr. Patterson in the January 2015 evaluation seems less plaintiff’s absence from his assigned scanner than his failure to advise others where he would be so he could be located if necessary and the Court finds the opposition has cited no evidence tending to show there was never an occasion when co-workers did not know where plaintiff was when Mr. Patterson asked. Therefore, the opposition has failed to create a triable issue of material fact regarding the alleged falsity of Mr. Patterson’s statement about there being “many times” when he asked

where plaintiff was and other staff members not knowing.

Third, with respect to plaintiff’s allegation of “an intentionally false and devastating score” of “4” given by Mr. Patterson, the Court concludes this constitutes a non-actionable opinion which cannot give rise to a defamation claim. The question of whether a statement is one of fact or opinion is a question of law for the Court to determine (Greenbelt Pub. Assn. v. Bresler (1970) 398 U.S. 6; Gregory v. McDonnell Douglas Corp. (1976) 17 Cal.3d 596, 600-601) and here, the analysis is simplified by the fact that the rating of “4” or “Needs Improvement” is not a “provably false” proposition which is necessary to support of defamation cause of action. (Jensen, at 970; Kahn v. Bower (1991) 232 Cal.App.3d 1599, 1607; see also, Terry v. Davis Community Church (2005) 131 Cal.App.4th 1534, 1552.) As explained in Jensen which was cited with approval by the California Supreme Court in Randi W, an employer’s performance evaluation (unless it falsely accuses an employee of criminal conduct, dishonesty, incompetence or reprehensible personal characteristics/behavior) “cannot support a cause of action for libel…even when the employer’s perceptions about an employee’s efforts, attitude, performance, potential or worth to the enterprise are objectively wrong and cannot be supported by reference to concrete, provable facts.” (Jensen, at 970 (underline added for emphasis). This is echoed in earlier California decisions holding that the mere expression of opinion and even severe criticism of an employee is not actionable on a defamation theory even though it may adversely reflect on the fitness of an individual for his position. (See, e.g., Yorty v. Chandler (1970) 13 Cal.App.3d 467, 472-473.)

Coupled with the fact that plaintiff has offered no evidence of any injury or damage proximately caused by the “publication” of the January 2015 evaluation, the Court finds for all these reasons that UC is entitled to summary adjudication on plaintiff’s defamation cause of action and need not address here the alternative ground that evaluation is privileged under Civil Code §47(c).

Breach of Implied Covenant of Good Faith. Defendant UC seeks summary adjudication of this final cause of action on the ground that employment with a public entity like UC is not held pursuant to a contract but rather by statute (see, e.g., Miller v. State of California (1977) 18 Cal.3d 808, 813), making this claim inapplicable to this case. Notably, plaintiff’s opposition does not address much less challenge this proposition and coupled with the facts that (1) public entities are under Government Code §815 immune from liability unless specifically provided by statute and (2) plaintiff’s complaint does not identify any statute alleged to provide for a public employer’s liability on a breach of implied covenant theory (see, e.g., Searcy v. Hemet Unified School District (1986) 177 Cal.App.3d 792, 802 [complaint must explicitly identify the statute on which public entity’s liability is claimed to be based]), plaintiff cannot as a matter of law prevail on this cause of action.

Conclusion

Because defendant UC’s moving papers are sufficient to satisfy its initial burden of production under Code of Civil Procedure §437c(p)(2) and because plaintiff failed to carry his burden of producing admissible evidence sufficient to establish at least one triable issue of material fact, defendant UC is entitled to summary adjudication of each of the causes of action alleged in the complaint.

Since summary adjudication is granted as to all causes of action, UC’s alternative

motion for summary judgment must also be granted.