Filed 2/24/20 Fausto v. City of Ontario CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

ARMANDO FAUSTO,

Plaintiff and Appellant,

v.

CITY OF ONTARIO et al.,

Defendants and Respondents.

E070974

(Super.Ct.No. CIVDS1619768)

OPINION

APPEAL from the Superior Court of San Bernardino County. Wilfred J. Schneider, Jr., Judge. Affirmed.

Ehlert Hicks and Allison L. Ehlert for Plaintiff and Appellant.

Liebert Cassidy Whitmore, Brian P. Walter and David A. Urban for Defendants and Respondents.

Armando Fausto worked for the City of Ontario (Ontario) for 12 years before his termination in 2017. During his employment, he suffered several injuries that periodically required restricted job duties. Ontario fired him in March 2017, after an investigation revealed that he had stolen city property. Fausto brought this action against Ontario under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.), alleging disability discrimination, retaliation, harassment, and failure to prevent discrimination and harassment. The trial court granted summary judgment for Ontario. We affirm.

BACKGROUND

Ontario hired Fausto in December 2005 as a senior street maintenance worker. The city promoted him to utilities maintenance worker in September 2007 and to utilities technician in March 2008. As a utilities technician, Fausto’s job duties included installing and repairing water lines, wastewater lines, meters, fire hydrants, pumps, and lift stations; operating gate valves, backhoes, jack hammers, pipe threaders, and vactor trucks; locating underground utilities; and setting up traffic control and diversions. Fausto’s superiors included Donald Meyer, the water/sewer maintenance manager for the city; Thomas O’Neill, the city’s utilities operations director; and Scott Burton, the city’s utilities general manager.

I. Fausto’s Medical Conditions

During his employment with Ontario, Fausto suffered a right shoulder and neck injury, a left shoulder and neck injury, and a finger injury. He also suffered from depression.

Fausto injured his neck and right shoulder in August 2010 while working on a water pipeline. In September, Fausto’s doctor imposed work restrictions, including limited use of his right hand, no overhead work, and no pushing, pulling, or lifting over 10 pounds. Because of the shoulder injury, Fausto operated under doctor-imposed work restrictions periodically for several years. Ontario followed those restrictions and assigned him to modified duties, such as painting fire hydrants. He had rotator cuff surgery on his right shoulder in 2011. His doctor returned him to regular duty in April 2012, but he reinjured his shoulder and continued to have work restrictions until December 2014.

Fausto injured his finger in June 2014 while working on water meters. His doctor diagnosed him with cellulitis and advised him to keep the finger clean and dry while working. Ontario made gloves available to him.

Fausto’s supervisor testified that, in 2015 and 2016, Fausto complained about having an injured shoulder and not wanting to do meter work, although he was not subject to any doctor-imposed work restrictions at the time. His supervisor advised him to go to the clinic.

Fausto eventually sought medical care again when he injured his left shoulder, left arm, and neck while installing a water meter in May 2016. His doctor imposed work restrictions much like those imposed for his right shoulder injury, and Ontario again assigned him to painting fire hydrants, which met his work restrictions. Those work restrictions were in place until Ontario placed him on administrative leave in September 2016 pending an investigation into misconduct, which we discuss below.

Fausto’s superiors—Meyer, O’Neill, and Burton—did not have any formal training on Ontario’s disability policy or on how to accommodate disabled employees.

II. The Parking Lot Memorandum

In February 2016, Burton issued a memorandum to the utilities staff setting forth rules for the employee parking lot. Utilities employees used city vehicles while performing their job duties and parked their personal vehicles in the employee lot during work hours. Burton’s parking lot memorandum stated that city vehicles were not allowed in the employee parking lot without prior authorization from immediate supervisors. Ontario implemented the rule in part to prevent employees from transferring city property from their work vehicles to their personal vehicles. Management had learned that several employees had tried to recycle city property for their own financial gain, even though Ontario had a system for recycling old property. Ontario considered recycling city property for the employee’s own benefit to be theft of city property. The rule prohibiting city vehicles in the parking lot was intended “to create a separation between the [c]ity’s work and an employee’s personal space” and thus deter theft of city property.

Ontario’s records indicate that Fausto received a copy of the parking lot memorandum in March 2016. From March through September 2016, management observed Fausto drive his city vehicle into the employee parking lot at least three times. Each time, Meyer or other managers counseled Fausto to stop violating the parking lot rules. Other employees had violated the same rule, and management had counseled them as well.

III. GPS Data from City Vehicles

Ontario uses GPS data from city vehicles for various purposes, including to monitor employees’ productivity. Around May 2014, O’Neill counseled Fausto about using his time more efficiently after GPS data revealed that he was not completing his tasks in an efficient manner. For instance, the data showed that Fausto was taking longer than necessary routes to work sites and had stopped at home during work hours.

IV. Time Records

In August 2016, Fausto’s time records showed that he had clocked in late or clocked out early on six occasions in the last month. Meyer met with Fausto and his union representative to counsel Fausto on this issue.

V. Fausto’s Complaints About His Superiors

Fausto testified that Meyer frequently called Fausto into Meyer’s office. This started when Fausto hurt his right shoulder and occurred “more and more and more” after that. “Nothing good would happen” when Meyer called Fausto into the office. It happened so frequently that Fausto’s supervisor called him, “What did I do now, Mando.”

Beginning around March 2016, Fausto met several times with human resources or the head of the utilities department, Burton, and raised the following concerns: (1) Meyer was no longer speaking to Fausto. Meyer said he was tired of Fausto complaining about his finger injury. (2) Management had switched Fausto’s job assignments several times without explanation. The reassignments made him feel like he was not doing a good job or was not being valued as an employee. He felt other employees received more favorable treatment and were not frequently reassigned. (3) After Fausto’s first meeting with human resources to express some concerns, management had assigned him to meter work. He felt that this was “‘payback’” for complaining to human resources. (4) He felt that management had singled him out for counseling when he violated the parking lot memorandum and had not counseled other employees who had also violated the memorandum. He also did not agree that he had been clocking in late, and he complained that he had been counseled about his productivity on the basis of his GPS data.

Burton investigated some of Fausto’s complaints. Burton determined that management had justifiably switched Fausto’s work assignments on the basis of his absenteeism and work restrictions. Employees’ assignments depended on a number of factors, including dependability. If an employee was absent on a regular basis, then management was less likely to assign that person to a long-term project requiring consistent attendance or a project requiring that person to work as part of a team. Ontario approved Fausto for intermittent leave under the Family Medical Leave Act and the California Family Rights Act five times between April 2010 and June 2016. He used this medical leave on many occasions and also regularly used sick days outside the scope of his medical leave. For instance, in 2014, he used sick days most weeks. Fausto’s managers indicated that his dependability and his work restrictions affected his assignments. Burton also determined that management had justifiably counseled Fausto about violating the parking lot memorandum and about his productivity.

VI. Fausto’s Theft of City Property

On August 12, 2016, Fausto stole a city railroad sign from the back of another employee’s city truck. After taking the sign, Fausto drove his city truck into the employee parking lot and moved the sign from his city truck to the trunk of a car. A director from the parks and maintenance department notified Meyer that security video showed Fausto taking the sign. Meyer collected the video, still images from the video, and GPS data from Fausto’s city truck and gave the evidence to human resources. Human resources contacted the Ontario Police Department, and an officer conducted an investigation.

The police officer interviewed Fausto in late September 2016. Fausto initially told the officer that he did not take the railroad sign, but when the officer told him about the video and other evidence, Fausto admitted to stealing the sign. Fausto said that he wanted to hang the sign in his garage and said that “he was stupid for taking the sign.” That same day, Fausto returned the sign to human resources, and Ontario placed him on administrative leave pending its internal investigation. During the investigation, Fausto again admitted to stealing the sign. In February 2017, Burton served Fausto with a notice of intent to terminate based on Fausto’s theft. The notice explained that Fausto had violated the parking lot memorandum or various city rules, policies, and directives by (1) driving his city truck into the employee parking lot without authorization, (2) stealing the railroad sign, and (3) failing to take responsibility for his conduct until confronted with the undisputed evidence of his theft. According to Burton, in deciding to terminate Fausto, Burton did not consider Fausto’s disabilities, his use of medical leave, or any complaints that Fausto had raised regarding “issues in the workplace.” In March 2017, Ontario terminated Fausto. Fausto had never been disciplined before his termination.

According to a human resources employee, Ontario has a policy of progressive discipline. In 2012, Ontario accused another employee, Roberto Perez, of using a city-owned tool to fix a plumbing problem at his home. Ontario suspended Perez for two weeks without pay. The following year, Ontario accused Perez of failing to follow protocol in repairing city vehicles. He took city vehicles to a shop that he was “not supposed to.” For that violation, Ontario suspended him without pay for three days.

VII. Fausto’s Lawsuit

Fausto filed suit against Ontario and two of his managers (O’Neill and Meyer) in November 2016—after Ontario had placed him on administrative leave but before it terminated him. He filed the operative first amended complaint (FAC) in April 2017, asserting causes of action under FEHA for disability discrimination, failure to engage in the interactive process, failure to provide reasonable accommodation, harassment, retaliation, and failure to prevent discrimination and retaliation (failure to prevent). Fausto alleged the harassment cause of action against both Ontario and Meyer. All other causes of action were against Ontario only. The FAC omitted O’Neill as a defendant.

Ontario and Meyer moved for summary judgment or, in the alternative, summary adjudication. In relevant part, Ontario argued that it had legitimate business reasons for terminating Fausto and that he could not establish those reasons were pretextual. Moreover, it argued, Fausto could not establish a nexus between the alleged discrimination, harassment, or retaliation and his disabilities, and as to the alleged harassment, Fausto could not show that it was severe or pervasive. Ontario argued that the failure to prevent cause of action lacked merit because the underlying causes of action for discrimination and retaliation failed.

The court issued a 19-page written ruling granting the motion for summary judgment. On appeal, Fausto challenges the court’s ruling only with respect to the causes of action for disability discrimination, retaliation, harassment, and failure to prevent. And as to the harassment cause of action, Fausto does not challenge the court’s ruling in favor of Meyer. As to the relevant causes of action, the court concluded as follows: Ontario had shown that it terminated Fausto for a legitimate, nondiscriminatory reason—his theft. Ontario had also established that it had counseled him or criticized his job performance for legitimate reasons, and that Meyer’s conduct toward him did not amount to harassment. The court entered judgment for Ontario and Meyer.

STANDARD OF REVIEW

The trial court may grant summary judgment if there is no triable issue of material fact and the issues raised by the pleadings may be decided as a matter of law. (Code Civ. Proc., § 437c, subds. (c), (f)(2); Biancalana v. T.D. Service Co. (2013) 56 Cal.4th 807, 813.) A moving defendant must show that one or more elements of the challenged cause of action cannot be established or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849 (Aguilar).)

Once the moving defendant has carried its initial burden, the burden shifts to the plaintiff to show a triable issue of material fact with respect to the cause of action or defense. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at p. 849.) The court must consider all of the evidence and the reasonable inferences from it in the light most favorable to the nonmoving party. (Aguilar, at p. 843.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Id. at p. 850.)

We review summary judgment orders de novo and apply the same legal standard as the trial court. (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460.) We independently examine the record to determine whether there are triable issues of material fact and whether the moving party is entitled to summary judgment as a matter of law. (Ibid.) “‘While we must liberally construe plaintiff’s showing and resolve any doubts about the propriety of a summary judgment in plaintiff’s favor, plaintiff’s evidence remains subject to careful scrutiny.’” (Doe v. Department of Corrections & Rehabilitation (2019) 43 Cal.App.5th 721,732-733 (Doe).)

DISCUSSION

I. Disability Discrimination and Retaliation

Fausto contends that the court erred as to the disability discrimination and retaliation causes of action. As to both, he argues that a reasonable juror could find that Ontario’s stated reason for his termination was pretextual. We disagree.

FEHA makes it unlawful to discharge an employee or discriminate against the employee in the terms, conditions, or privileges of employment because of a physical or mental disability or medical condition. (§ 12940, subd. (a).) FEHA also makes it unlawful to discharge the employee in retaliation for “oppos[ing] any practices forbidden under” FEHA or filing a complaint under FEHA. (§ 12940, subd. (h).)

The frameworks for proving discrimination and retaliation are similar. “A prima facie case of disability discrimination under FEHA requires the employee to show he or she (1) suffered from a disability, (2) was otherwise qualified to do his or her job, and (3) was subjected to adverse employment action because of the disability.” (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 378.) To establish a prima facie case of retaliation, the employee “must show (1) he or she 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.)

Once the employee presents evidence of a prima facie case, “‘the burden then shifts to the employer to offer a legitimate, nondiscriminatory [or nonretaliatory] reason for the adverse employment action.’ [Citation.] The employee may still defeat the employer’s showing with evidence that the stated reason is pretextual, the employer acted with discriminatory [or retaliatory] animus, or other evidence permitting a reasonable trier of fact to conclude the employer intentionally discriminated” or retaliated. (Nealy v. City of Santa Monica, supra, 234 Cal.App.4th at p. 378 [discrimination]; accord Yanowitz v. L’Oreal USA, Inc., supra, 36 Cal.4th at p. 1042 [retaliation].)

On summary judgment, the employer has the initial burden of negating an element of the employee’s prima facie case or of establishing a legitimate reason for its employment action. (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 160.) The employee may avoid summary judgment by offering “‘substantial evidence”’ that the employer’s stated reason was untrue or pretextual, or evidence that the employer acted with discriminatory or retaliatory animus, “‘such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination”’ or retaliation. (Ibid.; accord Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 75.) “‘[S]peculation cannot be regarded as substantial responsive evidence.’ [Citation.] In order to raise an issue as to the employer’s credibility, the employee must set forth specific facts demonstrating ‘“such weaknesses, implausibilities, inconsistencies, incoherences, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them ‘unworthy of credence.’”’” (Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1038 (Cucuzza).)

In this case, Ontario established that it had a legitimate, nondiscriminatory, nonretaliatory reason for terminating Fausto—his theft of city property. And there is no dispute that Fausto committed the theft. Fausto argues that a reasonable juror could nevertheless find Ontario’s stated reason pretextual because (1) Fausto’s relationship with his superiors had deteriorated in 2016 before his theft, and (2) Ontario did not comply with its policy of progressive discipline when it terminated Fausto. The arguments lack merit.

As to the deteriorated relationship with superiors, Fausto cites his March 2016 complaint to human resources that Meyer had stopped speaking to him and was tired of hearing about his injured finger. Even if Meyer were rude and insensitive, the evidence does not give rise to a reasonable inference of pretext. Meyer was not directly involved in the decision to terminate Fausto. After the parks and maintenance manager notified Meyer of Fausto’s theft, Meyer collected the evidence and gave it to human resources. But Meyer did not participate further in the internal investigation or participate in the decision to terminate Fausto—Burton made that decision. Whatever Meyer’s personal feelings about Fausto, they do not demonstrate that, contrary to Ontario’s stated reason, Burton terminated Fausto because of a disability. (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 434 [the “animosity of coworkers, even if superior to [the] plaintiff in rank or tenure,” did not create a triable issue as to pretext, in the absence of evidence that they were involved in the decision to terminate the plaintiff].)

Fausto also says that he discussed his “recurrent shoulder injury” and “how it was a legitimate hindrance to performing meter work.” Presumably he is referring to the conversations with his supervisor on some unspecified dates in 2015 and 2016. The mere assertion that he discussed his shoulder injury and dislike of meter work does not show that Ontario’s stated reason for his termination was weak, implausible, inconsistent, incoherent, or contradictory. (Cucuzza, supra, 104 Cal.App.4th at p. 1038.) There is no evidence that this particular supervisor was involved in the decision to terminate him for theft.

As to Ontario’s claimed failure to comply with its policy of progressive discipline, the record does not establish such a failure. Fausto relies on the testimony of the human resources employee who stated that Ontario has a policy of progressive discipline. The record does not contain the written policy itself or any more details about the policy. Fausto also relies on the testimony of Perez, who said that he was suspended twice—a two-week suspension for using a city-owned tool at home, and a three-day suspension for failing to follow protocol in repairing city vehicles. Fausto argues that his theft was similar to Perez’s violations, yet Ontario punished Fausto much more severely.

None of that evidence creates a triable issue of material fact. The mere reference to a progressive disciplinary policy, without any more detail, does not show that Ontario violated its policy by punishing theft with termination. To conclude otherwise on this record would be pure speculation. (Cucuzza, supra, 104 Cal.App.4th at p. 1038 [speculation is not substantial responsive evidence in opposition to a summary judgment motion].) Moreover, Fausto’s theft is distinguishable from Perez’s offenses, based on the little we know about Perez’s offenses. Fausto stole the sign to hang it in his garage. He had it for over one month by the time the police officer interviewed him, and even then he initially denied taking it until confronted with the evidence against him. Perez’s one-time use of city property is not the same as permanently taking city property and lying about it. And no reasonable juror would draw an equivalence between Perez’s failure to take city vehicles to the right repair shop and Fausto’s stealing. Fausto’s offense was more serious than Perez’s offenses, so his more serious punishment was justifiable. Fausto’s claim of disproportionate punishment is consequently not supported.

Fausto lastly relies on the declaration of his union representative, who opined that Ontario “did not follow progressive discipline procedures” and that Fausto’s termination “was not consistent with the way other [c]ity employees were treated for the same or similar behavior.” But the trial court sustained Ontario’s objections to the union representative’s declaration, and Fausto does not argue the ruling was erroneous. We therefore disregard the declaration. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 [court reviewing summary judgment order does not consider evidence to which objections have been made and sustained].)

In sum, Ontario established a legitimate, nondiscriminatory, nonretaliatory reason for Fausto’s termination. Fausto’s responsive evidence failed to create a triable issue of fact as to pretext or discriminatory or retaliatory animus. Accordingly, the trial court did not err by granting summary judgment on the discrimination and retaliation causes of action.

II. Harassment

Fausto argues that the court erred by granting summary judgment on the harassment cause of action because a reasonable juror could find that his supervisors’ behavior created a hostile work environment. The argument is unavailing.

A harassment cause of action requires evidence that the employee was “subjected to ‘offensive comments or other abusive conduct’ that is (1) based on a ‘protected characteristic’ (here, a claimed disability) and (2) ‘sufficiently severe or pervasive as to alter the conditions of [his] employment.’ [Citation.] To constitute harassment, the conduct must be so objectively severe or pervasive as ‘“to create a hostile or abusive working environment.”’ [Citation.] Factors to consider in this context include the frequency of the conduct, its severity, whether it is physically threatening or humiliating, and whether it unreasonably interferes with the employee’s work performance.” (Doe, supra, 43 Cal.App.5th at p. 736.)

“In addition, disability harassment is distinguishable from discrimination. [Citation.] ‘[D]iscrimination refers to bias in the exercise of official actions on behalf of the employer, and harassment refers to bias that is expressed or communicated through interpersonal relations in the workplace.’ [Citation.] ‘[H]arassment focuses on situations in which the social environment of the workplace becomes intolerable because the harassment (whether verbal, physical, or visual) communicates an offensive message to the harassed employee.’ [Citation.] Put differently, ‘[h]arassment claims are based on a type of conduct that is avoidable and unnecessary to job performance.’” (Doe, supra, 43 Cal.App.5th at p. 736.) But “commonly necessary personnel management actions such as . . . job or project assignments, . . . performance evaluations, . . . and the like, do not come within the meaning of harassment.” (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 64-65.) Such “actions 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.” (Id. at p. 65.)

Here, Fausto claims that he was subjected to disability-based harassment because (1) Meyer frequently lectured him about “peripheral matters,” such as the time clock policy and the parking lot restrictions; (2) a supervisor nicknamed him, “What did I do now, Mando”; (3) Meyer eventually stopped speaking to him; (4) he was “constantly” moved to different work assignments; and (5) his complaints about pain that he experienced when performing meter work “fell on deaf ears.”

None of this conduct rises to the level of actionable harassment. Meyer’s counseling of Fausto for clocking in late and violating the parking lot rules was the type of commonly necessary management action that does not amount to harassment. The same is true of Fausto’s changing work assignments. Burton’s investigation revealed that management changed Fausto’s assignments to accommodate his work restrictions or his absences.

The unflattering nickname and Meyer’s refusal to speak to Fausto may have been “frustrating or upsetting,” but the conduct was not “so severe as to ‘alter the conditions of [his] employment’ or create an ‘“abusive working environment.”’” (Doe, supra, 43 Cal.App.5th at p. 737.) Moreover, there is no evidence from which a reasonable juror could conclude that this conduct was based on a disability. “Workplaces can be stressful and relationships between supervisors and their subordinates can often be contentious. But FEHA was not designed to make workplaces more collegial; its purpose is to eliminate more insidious behavior like discrimination and harassment based on protected characteristics.” (Ibid.)

As to Fausto’s complaints about pain and meter work falling on deaf ears, Fausto implicitly acknowledges that he was not under doctor-imposed work restrictions at the time. In fact, his supervisor suggested that he go to the clinic precisely so that he could have documented work restrictions. While his supervisor’s response to his complaints may have been insensitive, no reasonable juror would conclude that this conduct was so severe and pervasive as to create an abusive working environment. This is especially so because Ontario accommodated Fausto’s work restrictions when they were in effect, and Fausto does not argue otherwise on appeal. Instead, he has abandoned his cause of action for failure to provide reasonable accommodations.

For all of these reasons, the court properly granted summary judgment as to the harassment cause of action.

DISPOSITION

The judgment is affirmed. Ontario shall recover its costs of appeal. (Cal. Rules of Court, rule 8.278(a)(1).)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MENETREZ

J.

We concur:

MILLER

Acting P. J.

SLOUGH

J.