Filed 3/24/20 Spikener v. United Parcel Service CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

DAMON S. SPIKENER,

Plaintiff and Appellant,

v.

UNITED PARCEL SERVICE, INC.,

Defendant and Respondent.

A154689

(San Francisco County Super.

Ct. No. CGC17556906)

In February 2017, plaintiff Damon S. Spikener filed a lawsuit against United Parcel Service, Inc. (UPS) alleging that, during his temporary employment as a seasonal “Driver’s Helper” for UPS, a supervising driver called him “ ‘nigga’ ” and laughed at him in front of others, and the next day, also acting on racial animus, falsely reported him as absent from work to try to get him fired. Spikener alleged that when he complained about the driver’s conduct to UPS, it retaliated against Spikener by refusing to consider his application for a permanent position. Spikener sued for discrimination, retaliation and failure to prevent discrimination and harassment under the Fair Housing and Employment Act, Government Code section 12900, et seq. (FEHA), and for unfair business practices, constructive discharge and the intentional infliction of emotional distress.

UPS subsequently moved for summary judgment or, in the alternative, summary adjudication. It contended the driver’s misconduct was not of a serious enough nature to justify any of Spikener’s causes of action and that it investigated Spikener’s complaints, ensured he did not work with the driver again, did not retaliate against him and did not consider him for the permanent position only because he did not properly apply for it. The court granted UPS summary judgment.

We conclude the court was correct in granting summary judgment (or summary adjudication) in UPS’s favor except as to one of Spikener’s causes of action because UPS showed that Spikener was unable to prove at least one element of each of those causes of action. However, we reject UPS’s argument that Spikener’s allegations did not describe conduct that was extreme and outrageous enough to support an intentional infliction of emotional distress claim. UPS failed to show that Spikener could not raise a triable issue regarding the collective impact on him of the driver’s alleged use of a racial epithet and efforts to get him fired. We do not mean to suggest that this case will necessarily result in liability for UPS. However, Spikener alleges that the driver used a particularly offensive racial epithet and the next day tried to get him fired. His allegations are similar to those discussed in two cases by our Supreme Court, Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493 (Alcorn) and Agarwal v. Johnson (1979) 25 Cal.3d 932, 946 (Agarwal), and they cause us to reach the same conclusion as the Alcorn court: “Where reasonable men may differ, it is for the jury, subject to the control of the court, to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability.’ ” (Alcorn, at pp. 498-499.)

Therefore, we reverse the judgment and order granting summary judgment, and remand with instructions to the trial court to grant UPS summary adjudication for all but Spikener’s intentional infliction cause of action.

BACKGROUND

Spikener sued UPS in San Francisco County Superior Court. He alleged: (1) wrongful termination/constructive discharge in violation of public policy; (2) race discrimination in violation of Government Code section 12940, subdivision (a); (3) retaliation in violation of Government Code section 12940, subdivision (h); (4) failure to prevent discrimination and harassment in violation of Government Code section 12940, subdivision (k); (5) intentional infliction of emotional distress; and (6) unfair business practices in violation of Business and Professions Code section 17200 et seq. In January 2018, UPS moved for summary judgment or, in the alternative, summary adjudication. Spikener opposed the motion.

I.

Undisputed Facts

A. Spikener’s Temporary Employment With UPS

On November 17, 2016, UPS hired Spikener, who is African-American, as a “Seasonal Driver’s Helper” (Helper) based at its San Francisco facility. Spikener was to assist UPS drivers during the holiday rush. He understood his employment was temporary and would end before Christmas 2016. He received training for this position, including instruction on how to raise a concern or complaint via the UPS Helpline. UPS’s “Professional Conduct and Anti-Harassment Policy,” a copy of which Spikener received, prohibited derogatory slurs and racial epithets.

Every workday, a “Seasonal Helper Coordinator,” Maria Sesay, called Spikener to confirm his availability and arrange his work for that day. Spikener did not have any problems with the people he worked with on his first assignment.

B. Spikener’s Work with UPS Driver Danny Bautista

For his second assignment, Sesay asked Spikener to work with UPS driver Danny Bautista and, after Bautista ended his shift, with another driver. Spikener agreed to do so for four consecutive days.

Spikener did not find anything offensive during his first two days working with Bautista. On the third day, he arrived 10 to 15 minutes late at the San Francisco facility to find Bautista had left for 450 Sutter Street in San Francisco, a delivery location. Spikener parked his car outside the San Francisco facility and walked to 450 Sutter to avoid paying for parking there. By the time he arrived, Bautista had loaded packages on a cart for Spikener to deliver, and the two separately delivered packages all morning. When Bautista told Spikener he was breaking for lunch, Spikener went for a walk. UPS asserted (and Spikener did not dispute) that, according to Spikener, when he returned, he walked to the back of the UPS truck, where he overheard Bautista tell another UPS driver, “ ‘This nigga walked all the way from the UPS building to my truck.’ ” Bautista and the other driver laughed, and the conversation ended.

The next morning, December 2, Sesay called Spikener, told him of his assignment that day with Bautista and said he could meet Bautista either before 8:30 a.m. at the San Francisco facility or later at 450 Sutter. Spikener agreed to the assignment and arrived before 8:00 a.m. outside the San Francisco facility. He tried to reach Bautista by phone unsuccessfully but did not leave a voice mail message, and he also texted Bautista. Bautista did not respond to the call or the text.

Around 9:00 a.m., Spikener, still outside in his car, saw Bautista drive out of the San Francisco facility. Spikener honked his horn as Bautista drove closer. Bautista was wearing headphones, did not know Spikener’s car and did not make eye contact with Spikener; Spikener was not sure Bautista heard him honk. Bautista drove past Spikener, who thought Bautista ignored him so he would be considered a “ ‘no call/no show.’ ” Spikener texted Bautista again, who replied 10 to 15 minutes later that he had left the San Francisco facility a long time ago and was at 450 Sutter. In a declaration he submitted in opposition to UPS’s motion, Spikener quoted from a December 5 letter he wrote to UPS’s Human Resources Department that “Danny [Bautista] told Maria [Sesay] that I was a no call no show” that morning.

Spikener called Sesay that day and said he would not work with Bautista again because Bautista had used the word “ ‘nigga’ ” the previous day and had driven past him that morning. Sesay did not assign Spikener to work with Bautista again. Bautista was the only UPS employee who treated Spikener differently because of Spikener’s race and the only employee who mistreated him.

C. Spikener’s Complaints About Bautista

According to UPS, a few days later, on December 5, Spikener submitted a complaint to the UPS Helpline about Bautista. He wrote that Bautista had prohibited him from eating lunch in the UPS truck but ate there with another UPS driver; called Spikener a “ ‘nigga’ ” while talking with another UPS driver; did not pick up Spikener outside the San Francisco facility on December 2 even though Spikener honked at him; and did not return to the San Francisco facility that morning to pick him up. At some point, Spikener also complained similarly to the Equal Employment Opportunity Commission.

In his declaration, Spikener quoted the following from the December 5 letter he sent to the Human Resources Department: “ ‘Danny [Bautista] and another UPS driver was in the back of the UPS truck parked smoking cigarettes in front of 450 Sutter . . . when I came back from my lunch . . . . Danny stated to another UPS driver about me walking to the work site in front of me and passing pedestrians[,] ‘do you know this nigga walked to my truck from the UPS building.’ ”

Within 24 hours of receiving Spikener’s Helpline complaint, a UPS Area Human Resources Manager interviewed Bautista and the driver to whom Bautista allegedly made the offensive remark about Spikener. Bautista and the other driver denied that Bautista had referred to Spikener as “ ‘this nigga.’ ” The manager also contacted Spikener to discuss his allegations, but the record does not reflect the content of their discussion. Spikener asserted (and UPS did not dispute) that, as he wrote in his December 5 letter, his coordinator, Sesay, told him on December 5 that Bautista said, “ ‘I was just playing.’ ” In any event, she did not assign Spikener to work with Bautista again. The record does not indicate UPS did anything else regarding Spikener’s complaints.

D. The Remainder of Spikener’s Employment as a Helper

For the remaining three weeks of his employment as a Helper, Spikener worked with other drivers. He did not hear any inappropriate comments and did not have or report any problems. He saw Bautista walking with another Helper on one occasion but did not have any communication or contact with him. No other drivers mentioned Bautista to Spikener. Spikener turned in his uniform and picked up his final paycheck on December 25, 2016. He noticed his paycheck was missing about four payroll hours, the dates of which he did not know, and asked Sesay about them. She said the hours were not listed in UPS’s system. He did not pursue the issue.

E. Spikener’s Application for a Permanent Position

In November 2016, after he began working as a Helper and before he worked with Bautista, Spikener entered information into a UPS online application for the permanent position of UPS Package Handler based at the San Francisco facility. According to Spikener’s deposition testimony, when he got to the last step of this application, there was no pop-up window stating an interview time, unlike when he had previously filled out an online application for the Helper position. According to Spikener, “It just said, like, completed by the application. Just says completed.” Spikener also testified, “It said you’re already an employee at the time, and I would have to contact or go through my manager.” Spikener acknowledged that despite this instruction to apply through his manager, he never spoke to his supervisor or any UPS employees about the permanent Package Handler position. Spikener said he believed UPS was supposed to respond to his online application for a permanent position but he did not refer to anything to support this belief.

II.

Disputed Facts

A. Spikener’s Application for a Permanent Position

UPS contended that it did not allow UPS employees, including seasonal helpers, to submit applications through its online portal and did not consider Spikener for the Package Handler position because he did not complete the application process.

Spikener disputed UPS’s contention in his declaration, stating: “I applied correctly to the permanent position in November 2016 using the UPS online system via the UPS job website. I was later able to log into the UPS ‘Application Center’ to see that my application for a Package Handler permanent position was on file with a date of ‘11/21/2016.’ I therefore believed I had applied for the permanent Package Handler position.” Spikener further stated, “To the extent UPS is now claiming my application for the Permanent Handler position was not received, I believe this to be a pretextual excuse as I filled out and submitted the necessary application online and was told by the UPS system that it was on file,” a statement to which UPS objected on multiple grounds. Spikener attached as an exhibit to his declaration an undated print-out of UPS’s “job application status page,” which he asserted “show[ed] that my application had been received,” to which UPS also objected on a variety of grounds. The exhibit lists a November 21, 2016 application by Spikener for a Package Handler position in San Francisco as “On File” and his previous application for a Helper position as “Active.”

B. Bautista’s Work Status in Relation to Spikener

Based on a declaration of its area human resources manager, UPS asserted that Bautista, as a “Package Car Driver,” was an “hourly, union, employee who [did] not have the ability to hire, fire, or set corporate policy.” Therefore, it argued, Bautista was not a work supervisor of Spikener. Spikener contended that Bautista had supervisory responsibilities over him, asserting in his declaration: “I felt Bautista could determine the time and place I started to work, the activities I did during work, and the time and place I finished work. He also could evaluate my performance on the job.”

III.

The Court’s Order Granting Summary Judgment

The court granted UPS’s summary judgment motion, concluding the undisputed facts showed Spikener could not prove any of his claims. Among other things, the court found it was undisputed that Spikener’s Helper job was temporary; that UPS did not hire Spikener for a permanent position because he did not complete the application process as required, since he never contacted a UPS manager about the position; that the alleged racial discrimination amounted to Spikener hearing Bautista calling him a “nigga” one time, which did not “rise to the level of actionable discrimination under California law;” that Spikener neither proved nor pleaded outrageous conduct so extreme that it went beyond all possible bounds of decency; and that Spikener’s only allegation of an unlawful or unfair business practice was UPS’s alleged failure to abide by employment discrimination laws.

The court subsequently entered judgment in favor or UPS. Spikener timely filed a notice of appeal.

DISCUSSION

Spikener argues the trial court should have denied UPS’s summary judgment motion for each of his six causes of action. We conclude the trial court correctly ruled regarding five of them but erred regarding Spikener’s intentional infliction of emotional distress claim.

I.

Summary Judgment

A defendant moving for summary judgment meets its burden of showing there is no triable issue of material fact and that it is entitled to judgment as a matter of law “by presenting evidence demonstrating that one or more elements of the cause of action cannot be established or that there is a complete defense to the action. ([Code Civ. Proc., § 437c], subds. (o), (p)(2); Aguilar [v. Atlantic Richfield Co. (2001)] 25 Cal.4th [826,] 849-850, 853-854 [(Aguilar)].) Once the defendant makes this showing, the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action or defense. ([Code Civ. Proc.,] § 437c, subd. (p)(2); see Aguilar, at p. 850.) Material facts are those that relate to the issues in the case as framed by the pleadings. [Citation.] There is a genuine 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.” (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 859-860.)

“Summary judgment is appropriate only ‘where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law.’ ” (Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 618.) That said, “all that the defendant [moving for summary judgment] need do is to show that the plaintiff cannot establish at least one element of the cause of action—for example, that the plaintiff cannot prove element X.” (Aguilar, supra, 25 Cal.4th at pp. 853-854.)

“ ‘On review of an order granting or denying summary judgment, we examine the facts presented to the trial court and determine their effect as a matter of law.’ [Citation.] We review the entire record, ‘considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained.’ [Citation.] Evidence presented in opposition to summary judgment is liberally construed, with any doubts about the evidence resolved in favor of the party opposing the motion. ’ ” (Regents of University of California v. Superior Court, supra, 4 Cal.5th at p. 618.) Nonetheless, “ ‘ “[i]f the non-moving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation,” summary judgment may be appropriate even where intent is an issue.’ ” (Nelson v. United Technologies (1999) 74 Cal.App.4th 597, 614.)

II.

The Court Did Not Err Regarding Most of Spikener’s Claims.

Besides his intentional infliction of emotional distress claim (which we discuss in the next section), Spikener brought three causes of action under FEHA—for race discrimination (Gov. Code, § 12940, subd. (a)), retaliation (id., § 12940, subd. (h)) and failure to take all reasonable steps to prevent discrimination and harassment (id., § 12940, subd. (k)); an unfair business practices claim (Bus. & Prof. Code, § section 17200, et seq.); and a constructive discharge claim. As we will explain, UPS showed that Spikener could not establish at least one element of each of these five claims and, therefore, was entitled to summary adjudication in its favor in each instance. (See Aguilar, supra, 25 Cal.4th at pp. 853-854.)

A. Spikener’s FEHA Claims

1. Spikener’s FEHA-Related Contentions

In support of his FEHA claims, Spikener, as we have discussed, contended that Bautista told another driver in the presence of Spikener and pedestrians, “ ‘do you know this nigga walked to my truck from the UPS building,’ ” and that Bautista and the other driver then laughed. Also, the next morning, Spikener timely called and texted Bautista before the beginning of their shift together to tell Bautista he was outside the San Francisco facility, but Bautista did not respond to his call or text, later drove past him even though he sounded his car horn as Bautista approached, and reported him as a “no show, no call” to Sesay that morning.

Spikener also contended that UPS did nothing in response to his Helpline and Human Resources Department complaints about Bautista and that his coordinator, Maria Sesay, told him Bautista was “ ‘ just playing.’ ” However, he did not dispute the evidence offered by UPS showing that after he complained to Sesay, she did not assign him to work with Bautista again; that a UPS manager investigating his Helpline complaint spoke to him, to Bautista and to the driver to whom Bautista made the offensive statement about his Helpline complaint; that he had no contact with Bautista for the remainder of his temporary employment at UPS; and that he did not have or report any other problems to UPS about working there.

Spikener further contended that he completed an online application on a UPS portal for a permanent Package Handler position, and he proffered in opposition to UPS’s motion a print-out of his portal status page indicating that his application was “On File.” However, he acknowledged in deposition that at the last step of the online application process, the UPS portal informed him that, as a UPS employee, he had to apply through his manager. Also, although Spikener subjectively believed that UPS’s failure to consider his application was in retaliation for his complaints about Bautista, he presented no evidence to support this belief other than his complaints and UPS’s not hiring him for a permanent position.

2. Consideration of FEHA Claims on Summary Judgment

In addition to the more general rules regarding summary judgment, we review UPS’s motion regarding Spikener’s FEHA claims under the burden-shifting formula discussed in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 (McDonnell Douglas) and Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317 (Guz). Under this formula, a court must “ ‘ “ ‘decide if the plaintiff has met his or her burden of establishing a prima facie case of unlawful discrimination. 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. . . . Thus, ‘ “ . . . in the case of a motion for summary judgment or summary issue adjudication, the burden rests with the moving party to negate the plaintiff’s right to prevail on a particular issue. . . . In other words, the burden is reversed in the case of a summary issue adjudication or summary judgment motion. . . .” ’ ” [Citation.]’

“ ‘ “Whether judgment as a matter of law is appropriate in any particular case will depend on a number of factors. These include the strength of the plaintiff’s prima facie case, the probative value of the proof that the employer’s explanation is false, and any other evidence that supports the employer’s case. . . .” [Citation.]’ ” (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 309.)

3. Spikener’s Race Discrimination Claim

In his complaint, Spikener alleged that UPS violated Government Code section 12940, subdivision (a) by discriminating against him “as a result of his African-American race,” and that “[a]s a result of [UPS’s] failure to maintain a discrimination-free workplace,” he was “harmed though, inter alia, the loss of income, promotional and career opportunities, and employment benefits and has suffered other economic and emotional damages in an amount to be determined at trial.”

“[T]he elements of a claim for employment discrimination in violation of section 12940, subdivision (a),[ ] are (1) the employee’s membership in a classification protected by the statute; (2) discriminatory animus on the part of the employer toward members of that classification; (3) an action by the employer adverse to the employee’s interests; (4) a causal link between the discriminatory animus and the adverse action; (5) damage to the employee, and (6) a causal link between the adverse action and the damage.” (Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 713.)

For both FEHA discrimination and retaliation claims, actions constitute “adverse employment actions” only if they “materially affect the terms, conditions, or privileges of employment.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1052.) “Minor or relatively trivial adverse actions or conduct by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment and are not actionable, but adverse treatment that is reasonably likely to impair a reasonable employee’s job performance or prospects for advancement or promotion falls within the reach of the antidiscrimination provisions of [Government Code] section[] 12940[, subdivision] (a).” (Id. at p. 1054.)

When an employee alleges to have suffered an adverse employment action under FEHA and the employer provides a legitimate, non-discriminatory reason for its conduct, “ ‘ “[an 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. . . . 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,’ . . . and hence infer ‘that the employer did not act for [the asserted] non-discriminatory reasons.’ ” ’ ” (Moore v. Regents of California (2016) 248 Cal.App.4th 216, 235-236, quoting Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1005.)

We conclude that UPS, as the party moving for summary judgment, met its initial burden under McDonnell Douglas and Guz by showing that Spikener lacked evidence that it took an adverse employment action based on discriminatory animus that caused Spikener harm. Among other things, UPS presented evidence showing that, even assuming that Bautista spoke and behaved in the manner Spikener described, it reassigned Spikener away from Bautista immediately and never assigned him to work with Bautista again, that Spikener had no other problems working with anyone at UPS, that Spikener completed the full term of his temporary employment, and that there was no evidence that Bautista’s actions impacted Spikener’s work performance or any opportunities he had at UPS. As for its failure to consider Spikener’s application for a permanent position, UPS asserted, based in large part on Spikener’s own deposition testimony, that Spikener had not completed the application as UPS instructed in that he failed to talk to his manager about the position.

In opposition, Spikener argued: “It is undisputed that Spikener was called a ‘nigga’ at work, which is clearly sufficient to demonstrate discriminatory motive. Immediately after complaining to management and the EEOC about this discrimination, Spikener was denied a permanent position despite properly applying for it. The close time proximity creates a presumption of discrimination and retaliation. UPS’[s] excuse that the application was not received is pretextual as Spikener has provided evidence that he applied for the position. Therefore, Spikener has met his burden at the summary judgment stage for his race discrimination claim and it should not be dismissed.”

Spikener did not support his argument with facts sufficient to raise a triable issue of material fact. He based his claim of discrimination on UPS’s purportedly adverse employment action of not considering his online application for a permanent position. However, even though he proffered evidence showing that his application was listed as “on file” with UPS’s online portal, he offered no evidence raising any dispute regarding, and indeed admitted, UPS’s evidence of the nondiscriminatory reason for its failure to hire him for a permanent position. As he testified in his deposition, when he applied online he was instructed that, because he was a current employee, in order for him to apply he had to talk to his manager, but he did not do so. Nor did Spikener proffer any evidence that this explanation was a pretext, i.e., that UPS failed to consider him for a permanent position not because he did not apply in the manner he was instructed he should apply but instead failed to consider or rejected his application because of his race. Therefore, the trial court did not err in granting UPS’s motion as to this cause of action.

4. Spikener’s Retaliation Claim

In his complaint, Spikener alleged that UPS violated Government Code section 12940, subdivision (h) because it “retaliated against [Spikener] because of, inter alia, [Spikener’s] race and his complaints about racial discrimination at [UPS’s] workplace,” and that this resulted in the same harms he alleged regarding his discrimination claim.

“[I]n order to establish a prima facie case of retaliation [under Government Code section 12940, subdivision (h) of] the FEHA,[ ] a plaintiff 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. [Citations.] Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. [Citation.] If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation ‘drops out of the picture,’ and the burden shifts back to the employee to prove intentional retaliation.” (Yanowitz v. L’Oreal USA, Inc., supra, 36 Cal.4th at p. 1042.)

We conclude that UPS, as the moving party, met its initial burden under McDonnell Douglas and Guz by showing that Spikener could not prove that UPS retaliated against him for complaining about Bautista’s conduct. It presented a legitimate, non-retaliatory reason for why it did not consider Spikener’s application for a permanent position—that Spikener did not apply for the position through his manager, although, as he admitted, UPS’s online portal instructed him to do so.

In his opposition, Spikener argued, based on several federal cases, that, “[g]iven the close time proximity between the complaints and the permanent position denial, a presumption of retaliation exists.” (See, e.g., Passantino v. Johnson & Johnson Consumer Products, Inc. (9th Cir. 1999) 212 F.3d 493, 507 [possible to infer an adverse employment action was caused by a company’s desire to retaliate in a Title VII sex discrimination case “when adverse employment decisions are taken within a reasonable period of time after complaints of discrimination have been made”].) This argument fails for the same reason that it failed regarding Spikener’s discrimination claim: UPS proffered undisputed evidence that it did not consider Spikener for a permanent position for the legitimate, non-retaliatory reason that he did not apply as UPS required him and as he was instructed to do, and Spikener presented only his beliefs, not evidence, that this explanation was a pretext that concealed UPS’s denial of his application because of his complaints. In other words, Spikener failed to rebut UPS’s explanation or raise a triable issue of material fact regarding it. Therefore, the trial court should have granted summary adjudication of this cause of action in UPS’s favor.

5. Spikener’s Claim for Failure to Prevent Discrimination

or Harassment

In his complaint, Spikener alleged that UPS violated Government Code section 1290, subdivision (k) by “failing to take all reasonable steps to prevent discrimination and harassment against [Spikener] from occurring and failing to take immediate and appropriate corrective action to remedy the discrimination,” and that this resulted in the same harms he alleged regarding his discrimination claim.

Generally, the elements of a claim for failure to prevent discrimination or harassment under Government Code section 12940, subdivision (k) are that the plaintiff was subjected to discrimination or harassment in the course of employment, the employer failed to take all reasonable steps to prevent the discrimination and harassment, the plaintiff was harmed and the defendant’s failure to take all reasonable steps to prevent the discrimination and harassment was a substantial factor in causing this harm. (1 CACI No. 2527; see Lelaind v. City & County of San Francisco (2008) 576 F.Supp.2d 1079, 1103 [citing these elements in very similar language under BAJI No. 12.11]; Caldera v. Department of Corrections and Rehabilitation (2018) 25 Cal.App.5th 31, 43-44.)

In his opposition, Spikener argued only that his failure to prevent claim “must stand if the Court finds his discrimination claim survives summary judgment.” We have already determined that it does not.

Spikener’s only other possibly related contention (made in arguing an unalleged harassment claim, as we will next discuss) was that, assuming for the sake of argument that Bautista was not his supervisor, after Spikener complained about Bautista’s offensive and discriminatory behavior, “UPS failed to take immediate and appropriate corrective action as required under FEHA when a non-supervisor commits harassment. Gov. Code, § 12940[, subd.] (j)(1). Instead, UPS permitted Bautista to continue working and did not suspend, discipline or re-train him in any way.”

Spikener did not provide any evidentiary support for his conclusory statement that UPS did not take any corrective action. Nor did he dispute UPS’s evidence that, once he complained, UPS never again assigned him to work with Bautista for the duration of his temporary employment, and that Spikener did not encounter any further discrimination or harassment during the remainder of his time working at UPS. UPS also proffered evidence, which again Spikener did not dispute, that its “Professional Conduct and Anti-Harassment Policy” prohibited derogatory slurs and racial epithets and that a UPS manager investigated Spikener’s Helpline complaint within a day of receiving it, including by talking to Spikener, Bautista and a third employee.

Spikener disputed UPS’s evidence that Bautista and the other employee denied having used the “N” word. In his declaration, he stated his coordinator, Sesay, told him Bautista said he “ ‘was just playing,’ ” implying he did use the offensive word. Drawing that inference in favor of Spikener, there could be a triable issue of fact whether UPS fulfilled its obligation to take “all reasonable steps” to prevent future discrimination or harassment. However, Spikener’s failure to prevent claim fails for another reason, which concerns the third element of the claim. Even if a jury could find UPS’s corrective action was insufficient, Spikener cannot show such failing caused him any harm. That is because he does not dispute that he never worked with Bautista again and that he did not experience any further discriminatory comments or other problems during the remainder of his service as a temporary Helper at UPS.

In short, the trial court did not err in granting UPS’s motion as to this cause of action in UPS’s favor.

6. Spikener’s Arguments About Racial Harassment

Spikener argues that UPS is also liable to him for racial harassment. However, as UPS points out, Spikener did not allege this claim as a cause of action in his complaint, nor did he cite Government Code section 12940, subdivision (j), which addresses such harassment. He referred to racial harassment only regarding his stated claim that UPS failed to prevent discrimination and harassment, which we discuss above. His failure to state a harassment cause of action prevents him from asserting a harassment claim as a basis for opposing UPS’s motion for summary judgment. “ ‘The pleadings delimit the issues to be considered on a motion for summary judgment. [Citation.]’ [Citation.] Thus, a ‘defendant moving for summary judgment need address only the issues raised by the complaint . . . .’ ” (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1253; followed in St. Myers v. Dignity Health (2019) 44 Cal.App.5th 301, 313.) And Spikener did not cure this failure by raising his harassment argument in his opposition to UPS’s motion either. “ ‘[T]he plaintiff cannot bring up new, unpleaded issues in his or her opposing papers.’ ” (Laabs, at p. 1253.) “ ‘[A] plaintiff wishing “to rely upon unpleaded theories to defeat summary judgment’ must move to amend the complaint before the hearing.’ ” (Falcon v. Long Beach Genetics, Inc. (2014) 224 Cal.App.4th 1263, 1275, quoting Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 648.) Therefore, we disregard his racial harassment contentions.

B. Spikener’s Unfair Business Practices Claim

In his complaint, Spikener alleged that UPS’s “failure to abide by the FEHA and other laws constitutes unfair competition because [UPS] gained an unfair competition over its competitors who follow the law.”

The elements of a cause of action for unfair business practices are (1) a business practice (2) that is unfair, unlawful or fraudulent and (3) an authorized remedy. (Bus. & Prof. Code, § 17200; see Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 676-678.) An action “ ‘ “to redress an unlawful business practice ‘borrows’ violations of other laws and treats these violations, when committed pursuant to business activity, as unlawful practices independently actionable under [Business and Professions Code] section 17200 et seq. and subject to the distinct remedies provided thereunder.” ’ ” (Id. at p. 677, quoting Farmers Ins. Exchange v. Superior Court (1992) 2 Cal.4th 377, 383.)

As we have already discussed, the court did not err in summarily adjudicating Spikener’s FEHA causes of action in UPS’s favor, and Spikener did not and does not argue that he can maintain this claim under any other violation of law. Therefore, the trial court did not err in granting summary judgment regarding this cause of action in UPS’s favor either.

C. Spikener’s Constructive Discharge Claim

In his complaint, Spikener alleged that he “was constructively discharged from employment with [UPS] for reasons that violate[d] one or more public policies of the State of California, namely, inter alia, because of [his] race and his complaints about racial discrimination at [UPS’s] workplace,” which resulted in the same harm he alleged in his discrimination claim.

“Constructive discharge occurs when the employer’s conduct effectively forces an employee to resign.” (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1244.) The first two of the three elements for this claim are: “(1) the actions and conditions that caused the employee to resign were violative of public policy; [¶] [and] (2) these actions and conditions were so intolerable or aggravated at the time of the employee’s resignation that a reasonable person in the employee’s position would have resigned . . . .” (Brady v. Elixer Industries (1987) 196 Cal.App.3d 1299, 1306, disapproved of on another ground in Turner, at pp. 1248-1251.) The third element is that “the employer must either deliberately create the intolerable working conditions that trigger the resignation or, at a minimum, must know about them and fail to remedy the situation in order to force the employee to resign.” (Turner, at pp. 1249-1250.)

As the moving party, UPS fulfilled its initial burden under Aguilar and its progeny to present evidence that Spikener could not prevail on this claim because, rather than resigning, he completed his temporary employment.

In his opposition, Spikener argued that his “constructive discharge claim is predicated on his race discrimination and retaliation claims. If the Court finds either one survives summary judgment then it should not dismiss the constructive discharge claim. Spikener clearly worked under intolerable working conditions given that he endured being called a ‘nigga’ at work.” His contentions are insufficient to raise a triable issue of material fact. We have already rejected his arguments about his discrimination claim and, as we have discussed, he did not bring a retaliation claim. To the extent he bases this cause of action on being called “nigga,” we agree that this was an arguably outrageous event as we will discuss in addressing his intentional infliction of emotional distress claim, but Spikener nonetheless offered nothing to show that its use resulted in his resignation. Therefore, the trial court did not err in granting summary judgment regarding this cause of action in UPS’s favor either.

III.

Spikener’s Claim for Intentional Infliction of Emotional Distress

In his complaint, Spikener alleged that he “has suffered severe emotional distress as a direct result of [UPS’s] reckless and extreme conduct, including but not limited to [UPS’s] blatant retaliatory termination of [Spikener],” and that he was “entitled to damages for the emotional distress suffered as a direct consequence of [UPS’s] actions.” The parties debated below and again on appeal whether the collective impact of Bautista’s alleged conduct—his purported use of a racial epithet and efforts to get Spikener fired—is sufficiently extreme and outrageous to constitute a basis for such a claim. We conclude based on case law regarding the particularly offensive racial epithet used here and our Supreme Court’s holdings in Alcorn and Agarwal that the trial court incorrectly granted summary judgment in UPS’s favor to the extent Spikener based this cause of action on Bautista’s conduct.

A. Legal Standards

“A cause of action for intentional infliction of emotional distress exists when there is ‘ “ ‘ “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.” ’ ” ’ ” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050 (Hughes).) “Behavior may be considered outrageous if a defendant (1) abuses a relation or position which gives him power to damage the plaintiff’s interest; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress.” (Agarwal, supra, 25 Cal.3d at p. 946.)

“A defendant’s conduct is ‘outrageous’ when it is so ‘ “ ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ ” ’ [Citation.] And the defendant’s conduct must be ‘ “ ‘intended to inflict injury or engaged in with the realization that injury will result.’ ” ’ ” (Hughes, supra, 46 Cal.4th at pp. 1050-1051.) This definition is based on comment d to section 46 of the Restatement Second of Torts. (Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1007.) The comment also states that “ ‘[g]enerally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’ ” (Rest.2d Torts, § 6, com. d, p. 73.)” (Ibid.) On the other hand, liability “ ‘ “does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” (Rest.2d Torts, § 46, com. d.)’ ” (Hughes, at p. 1051.)

B. A Rational Juror Could Find UPS Engaged in Extreme and

Outrageous Conduct.

We conclude Spikener’s claim presents triable issues of material fact regarding whether Bautista engaged in conduct so extreme and outrageous as to render UPS liable to Spikener for the intentional infliction of emotional distress.

UPS argued below and argues again on appeal that Bautista’s conduct was not evidence of extreme and outrageous conduct and, therefore, is not enough to support an intentional infliction claim. According to UPS, “[t]he only inappropriate behavior that [Spikener] complains about on appeal is Mr. Bautista’s purported single use of the word ‘nigga,’ ” which “does not rise to [the] level of extreme and outrageous conduct necessary to sustain” his claim, as the comment “was allegedly made by a co-worker and was not spoken to [Spikener] directly, was not yelled at [Spikener], and did not accompany any other inappropriate conduct.” Furthermore, “UPS took immediate action and ensured that [Spikener] did not have to work with Mr. Bautista.”

We disagree with UPS. UPS did not meet its burden under Aguilar and its progeny to establish by undisputed evidence or as a matter of law that Bautista did not speak and act towards Spikener in an “extreme and outrageous” manner. A reasonable juror could find Bautista’s reference to Spikener as “ ‘this nigga’ ” and his other alleged conduct towards Spikener intentionally injurious and so “ ‘ “ ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ ” ’ ” (Hughes, supra, 46 Cal.4th at pp. 1050-1051.) There are two reasons for our conclusion.

First, it is for the jury to determine the meaning and outrageousness of Bautista’s reference to Spikener as “ ‘this nigga.’ ” As one federal appellate court noted in reaching this same conclusion, “[t]he term ‘nigga’ is a variant of the term ‘nigger.’ See, e.g., Randall Kennedy, Nigger: The Strange Career of a Troublesome Word 4 (Vintage Books ed., 2003) (‘Nigger and other words related to it have been spelled in a variety of ways, including niggah . . . .’) [Kennedy]; Nigga, Dictionary.com, http://dictionary.reference.com/browse/nigga (last visited Dec. 19, 2015) (noting that the term ‘nigga’ is an ‘alteration of nigger’).” (Lounds v. Lincare, Inc. (10th Cir. 2015) 812 F.3d 1208, 1229 (Lounds).) The court “acknowledge[d] that, in certain contexts, some people might discern a distinction between [the terms ‘nigga’ and ‘nigger’] and view the former as less offensive. See, e.g., Kennedy, supra, at p. 4 (‘Currently, some people insist upon distinguishing nigger—which they see as exclusively an insult—from nigga, which they view as a term capable of signaling a friendly salutation’).” (Lounds, at p. 1230.) However, the Lounds court determined that whether either word was used in an offensive and derogatory way was a question of fact that depends on the circumstances and “should be left to the judgment of a reasonable jury. See, e.g., Dictionary.com, supra (noting that ‘[m]any people consider this word [“nigga”] to be equally as offensive as nigger’); Stephen R. Frost, What is the difference between “nigga” and “nigger,” The Pioneer (Feb. 27, 2014), http://thepioneeronline.com/20399/opinions/what-is-the-difference-between-nigga-and-nigger (noting that ‘whether it ends in -a or -er, the first thing that comes to mind is a negative image of a black person’).” (Ibid.)

The Lounds court concluded that, because it was considering the grant of a summary judgment (in that case, to a defendant regarding a hostile work environment claim under 42 U.S.C., section 1981), it had to construe the facts in the light most favorable to the non-moving party. (Lounds, supra, 812 F.3d at p. 1230.) Therefore, it construed “nigga” to be the “equivalent” of “nigger.” (Ibid.) We shall do the same. And as the Lounds court pointed out and “ ‘[a]s other courts have observed, “perhaps no single act can more quickly alter the conditions of employment” than “the use of an unambiguously racial epithet such as ‘nigger’ by a supervisor.” ’ . . . . Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 577 (D.C. Cir. 2013) (per curiam) (citation omitted) (quoting Rodgers v. W.-S. Life Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993)); see also Delph v. Dr. Pepper Bottling Co. of Paragould, Inc., 130 F.3d 349, 356 (8th Cir. 1997) (‘[U]se of the word [nigger] even in jest could be evidence of racial antipathy.’ (quoting McKnight v. Gen. Motors Corp., 908 F.2d 104, 114 (7th Cir. 1990))); Kennedy, supra, at 22 (‘Over the years, nigger has become the best known of the American language’s many racial insults, evolving into the paradigmatic slur’).” (Lounds, supra, 812 F.3d at p. 1230; see Swinton v. Potomac Corp. (9th Cir. 2001) 270 F.3d 794, 817 [the word “ ‘nigger’ ” is “ ‘perhaps the most offensive and inflammatory racial slur in English, . . . a word expressive of racial hatred and bigotry’ ”].)

Second, there were numerous, triable issues of material fact regarding Bautista’s conduct, including possibly aggravating circumstances that extended beyond what he said to Spikener. For example, Spikener contended that Bautista called him “[t]his nigga” to another driver in Spikener’s presence and in front of pedestrians and that the two laughed at him, while UPS contended that Spikener merely contended he “overheard” Bautista say this to another driver rather than to Spikener directly. Spikener contended that at the start of one work day, Bautista deliberately ignored his call and text and drove away from the UPS facility without him, while UPS emphasized the possibility that Bautista drove past him because he did not notice him. Spikener claimed Bautista also falsely reported him to be a “no call, no show” that morning in an effort to get him fired. Finally, Spikener contended that Bautista supervised him during their work together, a relationship which a juror could reasonably find added weight to any comments and actions by Bautista, while UPS contended the two were merely co-workers (see, e.g., Rodgers v. Western-Southern Life Ins. Co., supra, 12 F.3d at p. 675; Taylor v. Metzger (1998) 152 N.J. 490, 518 [706 A.2d 685, 699] [reversing summary judgment on an intentional infliction of emotional distress claim because “a rational factfinder may find” that a defendant sheriff’s single use of the term “jungle bunny” to refer to a plaintiff sheriff’s officer “would have caused severe emotional distress in the average African American”].)

Our Supreme Court has held that an intentional infliction of emotional distress claim can be based on the use of racial epithets and similarly aggravating circumstances. In Alcorn, supra, 2 Cal.3d 493, a plaintiff’s foreman shouted to the plaintiff, who was a truck driver and shop steward, “ ‘You goddam “niggers” are not going to tell me about the rules. I don’t want any “niggers” working for me. I am getting rid of all the “niggers,” ’ ” and the plaintiff was later discharged. The court reversed a judgment of dismissal after a demurrer was sustained without leave to amend to the plaintiff’s intentional infliction of emotional distress cause of action. (Id. at pp. 496-499.) The court held, “[p]laintiff has alleged facts and circumstances which reasonably could lead the trier of fact to conclude that defendants’ conduct was extreme and outrageous, having a severe and traumatic effect upon plaintiff’s emotional tranquility. Thus, according to plaintiff, defendants, standing in a position or relation of authority over plaintiff, aware of his particular susceptibility to emotional distress, and for the purpose of causing plaintiff to suffer such distress, intentionally humiliated plaintiff, insulted his race, ignored his union status, and terminated his employment, all without just cause or provocation. Although it may be that mere insulting language, without more, ordinarily would not constitute extreme outrage, the aggravated circumstances alleged by plaintiff seem sufficient to uphold his complaint as against defendants’ general demurrer. ‘Where reasonable men may differ, it is for the jury, subject to the control of the court, to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability.’ ” (Id. at pp. 498-499, fns. omitted.)

In Agarwal, our Supreme Court rejected the argument that evidence did not support a jury’s intentional infliction of emotional distress verdict under circumstances similar to those in Alcorn. An assistant manager, French, hurled racial epithets at the plaintiff, Agarwal, who was a native East Indian, including “nigger,” and induced Agarwal’s manager, Johnson, to fire him by making false statements about him. (Agarwal, supra, 25 Cal.3d at pp. 938, 941-942.) The Supreme Court held, “Agarwal here presented substantial evidence that French’s use of the racial epithet was outrageous and that French acted knowingly and unreasonably with the intention to inflict mental distress and abused his position to humiliate Agarwal and also to recommend Agarwal’s termination for reasons that were not true.” (Id. at p. 947.) The court also noted that a personnel manager did not insist that French apologize to the plaintiff, the manager refused to give a reason for Agarwal’s termination, and an executive ratified Agarwal’s termination for reasons he knew were not true. (Ibid.) Furthermore, “[e]ven assuming no ratification or authorization by [the company], the rule in this state is that the employer is liable for the willful misconduct of his employees acting in a managerial capacity,” which included Johnson and French. (Ibid.; see also Robinson v. Hewlett-Packard Corp. (1986) 183 Cal.App.3d 1108, 1127-1130 [relying on Alcorn and Agarwal to reverse summary judgment on the plaintiff’s intentional infliction of emotional distress claim that was based on a supervisor’s alleged use of racial slurs].)

Here, a rational juror could believe that Bautista engaged in extreme and outrageous conduct that was intended to cause Spikener emotional distress. While Bautista’s alleged single use of a racial epithet and his alleged acts of ignoring of Spikener at the beginning of a work day and falsely reporting that Spikener was a “no show, no call” were not as egregious as the conduct discussed in Alcorn and Agarwal, nonetheless a rational juror could find Bautista’s conduct amounted to intentional infliction of emotional distress. Therefore, the trial court erred by granting summary judgment as to this cause of action in UPS’s favor.

DISPOSITION

We reverse the judgment and order granting summary judgment. On remand, the court shall enter an order granting summary adjudication for UPS regarding Spikener’s causes of action for discrimination, retaliation and failure to prevent discrimination and harassment under FEHA, for unfair business practices and for constructive discharge, and denying summary adjudication regarding Spikener’s cause of action for intentional infliction of emotional distress. The parties shall bear their own costs of appeal.

 

STEWART, J.

We concur.

KLINE, P.J.

RICHMAN, J.

Spikener v. United Parcel Service, Inc. (A154689)