Filed 1/31/20 Winfunke v. The Regents of the University of Cal. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Yolo)

—-

FEYISAO WINFUNKE,

Plaintiff and Appellant,

v.

THE REGENTS OF THE UNIVERSITY OF CALIFORNIA,

Defendant and Respondent.

C084059

(Super. Ct. No. CV142059)

Plaintiff Feyisao Winfunke appeals from summary judgment entered in favor of defendant Regents of the University of California. Plaintiff, a black graduate student and teaching assistant (TA) at the University of California at Davis (UCD), sued the Regents, alleging race-based employment discrimination, harassment, and retaliation under the Fair Employment and Housing Act or FEHA (Gov. Code, § 12900 et seq., undesignated section references will be to the Government Code), contract claims, negligence, and unfair business practices (Bus. & Prof. Code, § 17200 et seq.).

In granting summary adjudication of each cause of action (Code Civ. Proc., § 437c), the trial court concluded the FEHA claims failed because plaintiff was not an employee within the meaning of FEHA. The court did not rule on defendant’s alternate ground that the University had legitimate, nondiscriminatory reasons for its actions, and plaintiff had no evidence the reasons were pretextual. As to the other causes of action, the trial court ruled the contract claims failed for lack of actionable contractual promises; defendant is immune from liability for negligence (§ 815), defendant is not a “person” subject to liability under the unfair business practices law (Bus. & Prof. Code, § 17201), and defendant is immune from liability for punitive damages (§ 818).

On appeal, plaintiff’s main focus is whether he was an “employee” for FEHA purposes. We allowed United Auto Workers (UAW) Local 2865 to file an amicus curiae brief in support of plaintiff.

We conclude defendant failed to meet its burden on summary judgment/adjudication to show lack of an employment relationship as a matter of law. However, we affirm summary adjudication of the FEHA claims on the alternate ground that defendant showed legitimate reasons for the actions against plaintiff and plaintiff lacks evidence of intentional discrimination, retaliation, or harassment. No triable issues exist on the contract claims, and plaintiff does not challenge summary adjudication of the claims for negligence, unfair business practices, or punitive damages.

We affirm the judgment.

FACTS AND LEGAL PROCEEDINGS

1. The Complaint
2.
The complaint delimits the scope of issues material on summary judgment (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381), for which defendant as moving party bears the initial burden on summary judgment/adjudication of establishing the absence of a triable issue before the burden shifts to plaintiff. (Swigart v. Bruno (2017) 13 Cal.App.5th 529, 535-536.)

On July 14, 2014, plaintiff filed a complaint for damages and injunctive relief alleging eight counts: (1) Retaliation in violation of FEHA; (2) harassment in violation of FEHA; (3) unlawful termination in violation of FEHA; (4) failure to prevent harassment and discrimination in violation of FEHA; (5) breach of contract; (6) breach of covenant of good faith and fair dealing; (7) negligence; and (8) unfair business practices under Business and Professions Code section 17200 et seq. Plaintiff also sought punitive damages.

Regents is the only named defendant, yet the complaint alleged misconduct by the University and its faculty, and repeatedly referred them as “defendants.” They cannot qualify as Doe defendants because their names were always known to plaintiff.

Plaintiff alleges as follows:

He is African or African American of Nigerian heritage who enrolled as a graduate student in the Master’s of Fine Arts (MFA) program of UCD’s Dramatic Arts Department in the Fall of 2010. He was given a teaching position. He received good grades.

During the Winter semester of 2011, plaintiff, who was the only black student in the graduate program, complained to Professors Davidson (faculty advisor) and Grenke (Chair of the Dramatic Arts Department) that the Department was fostering a racist environment by allowing a visiting professor to produce a play in which white graduate students referred to a topless African American undergraduate student as “Nigger,” without discourse to provide context.

Defendant did not address the racism but instead later harassed, verbally abused, discriminated against, and retaliated against plaintiff, labeling him a “troublemaker.”

In December 2011, plaintiff applied for and was accepted to UCD’s doctoral (Ph.D.) program in Performance Studies, such that he was jointly enrolled in both the MFA and Ph.D. programs. In January 2012, his acceptance to the Ph.D. program was rescinded as a “mistake.”

Defendant breached its fiduciary duty, created by a Graduate Student Handbook and MFA Student Handbook, to mentor, advise, and guide plaintiff through his graduate studies.

In April 2012, after the death of plaintiff’s faculty advisor, Professor Grenke became plaintiff’s advisor and gave plaintiff a “U” (unsatisfactory) grade for a class for which plaintiff had previously completed the work. Grenke was on sabbatical and left plaintiff without guidance. Plaintiff performed eight thesis performances, for which he received “Unsatisfactory” (failing) grades. At plaintiff’s thesis performance on February 29, 2012, Grenke instructed the undergraduate student acting as stage manager to call the police on plaintiff because of his race and complaint of racism. In May 2012, Grenke refused to grade plaintiff’s master’s thesis dissertation. In 2012, defendant terminated plaintiff from his teaching job in retaliation for his complaint of racism. Defendant disqualified plaintiff from the MFA program in July 2012. After plaintiff filed an administrative appeal, he was readmitted to the MFA program in the Fall of 2012 but was told to do work he felt he had already completed. White students in similar circumstances were not required to do such work.

Plaintiff filed charges with the Equal Employment Opportunity Commission (EEOC) and California Department of Fair Employment and Housing (DFEH) and obtained “right to sue” letters.

The four FEHA claims in plaintiff’s court complaint allege:

(1) Defendant retaliated against him by ratifying the University’s retaliating against him for complaining about discrimination, by using University policies to fail, fire, terminate and otherwise withhold his academic degrees; by failing to prevent discrimination; and by treating plaintiff differently than non-black peers who did not complain about discrimination.

(2) Defendant harassed plaintiff by engaging in a “severe and pervasive scheme” to suppress his right to protected activity, by threatening him with and executing adverse employment and academic actions. Defendant created, tolerated, and condoned a work environment pervasively hostile to plaintiff on account of his race and his complaint about discrimination. Defendant’s acts were malicious and evil.

(3) Defendant unlawfully terminated plaintiff’s employment based solely on his race and his complaint about discrimination.

(4) Defendant failed to prevent the discrimination and harassment.

The claims alleging breach of contract and covenant of good faith and fair dealing alleged his payment of tuition created a contract, the terms of which were in the Catalog and student Handbook. Defendant breached the agreement by failing to provide an advisor for Spring/Fall 2012 semesters, failing to guide him from January 2012 to the present, failing to confer a MFA degree on him when he completed all required work, and improperly discharging him from the MFA and Ph.D. programs.

Based on the same facts, the complaint alleged negligence, unfair business practices, and punitive damages.

2. The Summary Judgment Motion

Defendant moved for summary judgment and/or summary adjudication of issues, on grounds that plaintiff had no viable FEHA claim because he was not an “employee” of defendant. Alternatively, UCD had legitimate nondiscriminatory nonretaliatory reasons for its actions. The contract claims failed because they were based on the MFA Handbook’s recitation of general expectations rather than actionable contract promises, or alternatively, plaintiff failed to perform his obligations and failed to exhaust administrative remedies, and UCD cured any breach when it reinstated him to the MFA program. The motion also argued Regents is a public trust (Cal. Const, art. IX, § 9) and governmental entity immune from negligence liability and punitive damages (§§ 815, 818), and is not a “person” subject to liability under the unfair practices act.

A May 12, 2010, letter from Department Chair Professor Grenke offered plaintiff acceptance to the MFA program and “invite[d]” him “to be a 50% Teachers Assistant (TA) for three quarters. You will receive a quarterly salary of approximately $5545 per quarter you teach, as well as a fee remission covering all but approximately $275 per quarter of each appointment.” The letter included other terms we discuss post.

Professor Grenke attested in a declaration that he was Department Chair from 2009 through 2011, participated in the decision to admit plaintiff to the program, and recommended acceptance, knowing at that time plaintiff’s race and national origin, which were revealed in the application.

Plaintiff served as a TA for all three quarters and also for the Winter quarter 2012. He was never an assistant professor. In the Summer of 2011, he was an “Associate Instructor” (AI) — a position that allows students to teach a low level course on their own to assist with their professional development and provide additional funding for their graduate studies.

TAs are full-time registered graduate students, chosen for excellent scholarship and teaching promise, serving an apprenticeship under the active tutelage and supervision of a regular faculty member. TAs are not responsible for the instructional content of a course, selection of student assignments, planning of examinations, or determining the term grade for students. TAs are only responsible for the conduct of recitation, lab, or quiz sections under the active direction and supervision of a regular faculty member, who retains final responsibility for the course, as well as for the TA’s performance. TAs receive a stipend for their services, as well as a fee remission. The purpose of appointing graduate students to TA and AI positions is to provide a source of income to defray the costs of graduate school and assist with the student’s professional development.

The Department Chair and plaintiff’s faculty advisor were displeased with plaintiff’s grading practices for the Fall 2010 quarter, because he gave all students either an A or an A+. Although TAs are not responsible for determining the term grade for students, they submit recommended grades for faculty review and approval. The Chair and advisor told plaintiff his grading was inappropriate and to base grades on a quantifiable metric established by the syllabus, but plaintiff refused and claimed authority to run the course as he saw fit. At the end of the Spring 2011 quarter, plaintiff again submitted As and A+s for nearly all of the students and was again counseled that it was inappropriate. For the Winter 2012 quarter, plaintiff not only gave all As and A+s, he also e-mailed the grades to the students before letting his faculty advisor review and adjust them. (Plaintiff testified in deposition that he told students this was not their final grade.)

Professor Grenke attested that in early 2011, plaintiff complained about racism in a play a visiting professor had written and was producing, based on a work by Tennessee Williams with racism as a central theme. Grenke also received complaints from others involved in the production, complaining about plaintiff’s behavior during rehearsals. Since plaintiff’s participation was voluntary, he withdrew from the play without consequence, and the advisor considered the matter resolved and took no action regarding any of the complaints.

Defendant submitted evidence of nondiscriminatory reasons for denying plaintiff other positions as alleged in his contract claims. Plaintiff lost a graduate student researcher (GSR) position because the professor became unavailable due to a conflict. Plaintiff was denied a TA position in the Spring of 2012 and lost an AI position in June 2012, because he was disqualified from the MFA program.

There were problems with plaintiff’s completion of MFA requirements. Grenke became plaintiff’s faculty advisor after the initial advisor died. Though Grenke was on sabbatical in the Fall of 2011, he attempted to schedule regular meetings with plaintiff, who frequently cancelled at the last minute and said he did not want to commute from San Francisco to Davis. Plaintiff also missed production meetings to prepare for performances.

For one of his thesis performances, plaintiff caused a problem by trying to bring into the auditorium 10 friends without tickets. The undergraduate student acting as stage manager protested this would exceed the fire safety capacity of the venue. Plaintiff then said they were performers who would stand on stage as “statues.” The undergraduate contacted Grenke. She sounded distressed and helpless to stand up to plaintiff, so Grenke told her she could call campus security or police if she felt she could not control the situation. Plaintiff does not know if she called the police. Plaintiff said he would move the performance elsewhere. The performance did not happen at the venue, and the last-minute cancellation required refunds to patrons.

Plaintiff received failing grades and was dropped from the MFA program.

In April 2012, plaintiff filed a discrimination complaint with the Office of Student Affairs. The University appointed an independent investigator, who concluded there was no discrimination or retaliation.

Plaintiff filed an administrative appeal and in June 2012 won reinstatement to the MFA program on the ground that the one faculty member appointed to the thesis project committee for plaintiff’s project had apparently been unaware of the appointment because the Office of Graduate Studies did not notify faculty members but instead unreasonably expected MFA candidates to inform the appointee.

After being reinstated, plaintiff never completed the requirements for a MFA degree.

The Graduate Program Coordinator attested she mistakenly entered plaintiff in the Ph.D. program, thinking his admission papers were merely application papers. She corrected the mistake and informed plaintiff, who said he understood.

3. Plaintiff’s Opposition

Plaintiff opposed summary judgment. The trial court sustained many of defendant’s evidentiary objections to plaintiff’s evidence. On appeal, plaintiff argues we should review the evidentiary rulings de novo, but he fails to identify any particular objection or ruling and fails to offer any analysis showing error. Instead, he weaves excluded evidence into his factual recitation without acknowledging that the trial court excluded the evidence. For example, he relies on a letter from a Professor Osumare, Director of African American Studies at the University, expressing an opinion that the actions against plaintiff were motivated by racial discrimination. The trial court excluded the letter on the grounds of hearsay, lack of foundation, lack of personal knowledge, and lack of authentication. We therefore disregard it and other evidence excluded by the trial court.

In plaintiff’s deposition testimony, he claimed no one ever told him, or he did not recall being told, about problems with his grading practices. He also claimed that every adverse action against him was motivated by racism and his having complained about racism in the play being produced by a Caucasian visiting professor. The play was about Hurricane Katrina flooding; the dialogue included frequent use of the “N” word; the only roles for African Americans portrayed them as animals or were very minor roles; a female was naked in the play as an animal. Plaintiff complained to his faculty advisor (since deceased), who told him he was a “troublemaker.” Plaintiff complained to Grenke, who did not show any concern but said he would look into it, but did nothing. Plaintiff complained that the advisor and Grenke criticized him for dropping out of the play, but allowed a white male graduate student to drop out without consequence. Plaintiff also complained to Grenke and an administrator, who told him to stop talking about racial issues because that is how funding gets lost.

Plaintiff argued in the trial court that his evidence showed defendant’s stated reasons for its adverse actions were pretextual, because the Dean acknowledged defendant did not follow policy in dropping plaintiff from the Ph.D. program, and plaintiff’s reinstatement to the MFA program shows defendant violated protocol in dropping him from the program.

4. The Trial Court’s Ruling

The trial court granted defendant summary adjudication on the claims for retaliation, harassment, unlawful termination, and failure to prevent harassment and discrimination, on the grounds that plaintiff was not an employee within the meaning of the FEHA. The court therefore did not address defendant’s alternative ground that undisputed evidence showed its actions were legitimate, nondiscriminatory, and nonretaliatory.

The court granted summary adjudication in favor of defendant on the contract claims, because the Catalog and Handbook did not contain actionable contract promises.

The court also granted summary adjudication in favor of defendant on the grounds defendant was immune from liability for negligence and punitive damages, and was not subject to liability for unfair business practices.

The court accordingly granted defendant’s motion for summary judgment and entered judgment.

DISCUSSION

I

Standard of Review

Summary judgment is proper if there is no triable issue of material fact, and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) The moving party bears the initial burden of making a prima facie showing of the nonexistence of any genuine issue of material fact. (Aguilar, supra, 25 Cal.4th at p. 845.) A prima facie showing is one that is sufficient to support the position of the party in question. (Id. at p. 851.) A defendant moving for summary judgment can meet its burden of showing that a cause of action has no merit by showing that one or more elements of the cause of action cannot be established, or that there is a complete defense. (Code Civ. Proc., § 437c, subd. (p).) Once the defendant has met its burden, the burden shifts to the plaintiff to show that a triable issue of material fact exists. (Ibid.)

On appeal, we first identify the issues raised by the pleadings, since it is those allegations to which the motion must respond. (Barclay v. Jesse M. Lange Distributor, Inc. (2005) 129 Cal.App.4th 281, 290.) Second, we determine whether the moving party’s showing has established facts negating the opponent’s claims and justifying a judgment in the moving party’s favor. When a summary judgment motion prima facie justifies a judgment, the final step is to determine whether the opposition demonstrates the existence of a triable material issue of fact. (Ibid.)

We will affirm summary judgment if it is correct on any ground, as we review the judgment, not its rationale. (Marshall v. County of San Diego (2015) 238 Cal.App.4th 1095, 1107.)

We review summary judgment/adjudication de novo. (Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 716-717.) Defendant Regents invokes the rule that courts apply a highly deferential standard in reviewing academic decisions of a university. (Paulsen v. Golden Gate University (1979) 25 Cal.3d 803, 808; Banks v. Dominican College (1995) 35 Cal.App.4th 1545, 1551, 1553.) Defendant argues deference is appropriate here because plaintiff’s claims are inextricably tied to his academic performance and disqualification. However, they are also inextricably tied to his employment-based claims. Professor Grenke’s declaration acknowledged that plaintiff was disqualified from the MFA program “due to his failed thesis and issues with TA grading.” (Italics added.) The “highly deferential” standard does not apply under these circumstances.

We affirm the judgment applying de novo review.

II

Whether Plaintiff Was an “Employee” for FEHA Purposes

Plaintiff argues his position as a teaching assistant as part of his graduate MFA program made him an employee for FEHA purposes because he earned wages, was subject to the control of University faculty, and was subject to paying union dues under a collective bargaining agreement. Defendant argues some courts have held such graduate students are not employees when (1) their role as a teaching assistant is incidental to their educational program, or (2) their complaint is about academic, rather than employment decisions. We conclude defendant failed to show lack of an employment relationship, because the issue presents a question of fact on multiple factors unaddressed by defendant, and defendant’s evidence admits plaintiff was disqualified from the MFA program “due to his failed thesis and issues with TA grading” — thus implicating both academic and employment decisions.

Whether or not an employer-employee relationship exists is generally a question of fact, but may be decided as a matter of law where material facts are undisputed. (Estrada v. City of Los Angeles (2013) 218 Cal.App.4th 143, 148-149; Bradley v. Dept. of Corrections & Rehabilitation (2008) 158 Cal.App.4th 1612, 1624, 1629.)

In order to recover under the FEHA, the plaintiff must be an “employee.” (§ 12940.) The FEHA’s statutory definition of “employee” does not define “employee.” (§ 12926, subd. (c).) An FEHA regulation (previously found in Cal. Code Regs., tit. 2, § 7286.5(b), now renumbered as Cal. Code Regs., tit. 2, § 11008) states “Employee” means “Any individual under the direction and control of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written. . . .”

Absent applicable California case law on application of the FEHA, we may look to federal cases interpreting the analogous antidiscrimination objectives and wording of Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e(f) [“employee” is an “individual employed by an employer”]). (Estrada, supra, 218 Cal.App.4th at pp. 148-149.) Under both the FEHA and Title VII, compensation to the purported employee is an essential prerequisite to finding existence of an employer-employee relationship, but compensation is not in and of itself sufficient to establish existence of an employer-employee relationship. (Estrada, at p. 150.)

Under both the FEHA and Title VII, the existence of an employment relationship typically involves a factual inquiry into common law agency principles, such as payment of salary or other benefits, ownership of equipment needed for the job; location where the work is performed; obligation of training; authority of defendant to hire, transfer, promote, discipline, or discharge the employee; authority to establish work schedules and assignments; skill needed for the work and the extent to which it is done under direction of a supervisor; whether the work is part of the defendant’s regular business; and duration of the relationship. (Estrada, supra, 218 Cal.App.4th at pp. 150-151 [volunteer police reserve officer was not city employee for FEHA purposes despite city’s provision of workers’ compensation coverage]; Bradley v. Department of Corrections & Rehabilitation, supra, 158 Cal.App.4th at pp. 1623-1626; Vernon v. State of California (2004) 116 Cal.App.4th 114, 125.) The court considers the totality of circumstances, focusing on the amount of control the employer exercises over the employee. (Bradley, supra, at p. 1626.)

Here, defendant did not offer full analysis of these factors, but only those favoring defendant’s position. Defendant asserts plaintiff’s role as a teaching assistant was incidental to his educational program, and that his complaint is about academic (not employment) decisions, and that he had health insurance as a graduate student, not an employee. The University presumably received benefit from plaintiff’s services as a TA or AI, but the extent of that benefit is unclear. Grenke attested TAs are responsible for the conduct of recitation, lab, or quiz sections under the active direction and supervision of a regular faculty member, but the extent of faculty involvement is not clear.

Moreover, defendant’s motion failed to address the factor that plaintiff’s employment was covered by a collective bargaining agreement, as reflected in UCD’s letter accepting plaintiff into the MFA program, which defendant’s motion submitted as an exhibit to plaintiff’s deposition, and which plaintiff submitted in his opposition to summary judgment.

Thus, the University’s May 12, 2010, letter to plaintiff, accepting him into the MFA Program in Dramatic Art at the University, invited him to be a “50% Teachers Assistant (TA) for three quarters” for which he would receive a salary ($5,545 per quarter) plus a fee remission reducing his tuition to $275, and further stated: “This position is covered by a collective bargaining agreement [CBA] between the University of California (UC) and the Association of Graduate Student Employees/United Automobile Workers (AGSE/UAW) Local 2865. An electronic copy of the UC and AGSE/UAW [CBA] can be accessed at [website]. [¶] The [CBA] between UC and AGSE/UAW requires that your name and departmental address be released to AGSE/UAW. Additionally, state law mandates that employees pay either membership dues or an agency fee to their exclusive representative (unions). AGSE/UAW’s membership dues are 1.15% a month of total gross pay and its agency fee is .92% a month of total gross pay.

“Graduate student appointments of 25% or greater are entitled to a GSHIP [Graduate Student Health Insurance Program] Premium Remission, Educational and Registration Fee Remission, and other applicable benefits as set forth in the [CBA]. . . .

“Please note that satisfactory academic progress must be maintained each term in your specific program of Dramatic Art as a condition of your appointment and fellowship. Failure to maintain satisfactory academic progress may result in your funding being rescinded. Acceptance of any other funding or academic employment could affect this award and should be reported immediately. . . .”

In finding lack of an employment relationship, the trial court relied on defendant’s citation of Avalos v. Univ. of San Francisco (N.D. Cal. Apr. 4, 2013, C12-5290RS) 2013 WL 1390406, which held a graduate nursing student who was not compensated for participating in a clinical practice lab had failed to demonstrate by undisputed material facts that she was an employee of the university. Since plaintiff in our case was compensated, Avalos is not on point. The federal district court commented in Avalos that “even graduate students working as student researchers or graduate student teachers, who receive monetary compensation from the school where they work, often [italics added] do not qualify as employees, because the performance of those services was incidental to the educational program.” (Id. at p. 15.) This nonbinding, qualified dictum does not help defendant demonstrate lack of an employment relationship as a matter of law.

A federal appellate court held a graduate student conducting laboratory work as part of her academic program was an “employee” for Title VII purposes, in Cuddeback v. Florida Board of Education (11th Cir. 2004) 381 F.3d 1230 — which defendant cites in a footnote. Generally, the “economic realities” test applies to determine whether a Title VII plaintiff is an employee. (Id. at p. 1234.) “Under this test, the term ‘employee’ is ‘construed in light of general common law concepts’ and ‘should take into account the economic realities of the situation,’ ‘viewed in light of the common law principles of agency and the right of the employer to control the employee.’ ” (Ibid.) “Applying the economic realities test, the fact that much of Cuddeback’s work in Dr. Wang’s lab was done for the purpose of satisfying the lab-work, publication, and dissertation requirements of her graduate program weighs in favor of treating her as a student rather than an employee. However, the following facts weigh in favor of treating Cuddeback as an employee for Title VII purposes: (1) she received a stipend and benefits for her work; (2) she received sick and annual leave; (3) a comprehensive collective bargaining agreement governed her employment relationship with the University; (4) the University provided the equipment and training; and (5) the decision not to renew her appointment was based on employment reasons, such as attendance and communication problems, rather than academic reasons. Although the record does not indicate the amount that she was paid for the year in which she was terminated, the record does demonstrate that she was paid during that year, and was also paid $15,000 in her first year with Dr. Wang.” (Id. at pp. 1234-1235.)

As indicated in Cuddeback, a collective bargaining agreement may be considered as a factor favoring a finding of employment.

Here, plaintiff’s acceptance letter noted plaintiff was governed by a collective bargaining agreement. The Higher Education Employer-Employee Relations Act (HEERA), Government Code section 3560 et seq., gives employees of specified institutions of higher education the opportunity for collective bargaining, similar to employees of other public school systems in the State. (§ 3560, subd. (b).)

UAW filed an amicus curiae brief arguing that academic student employees (ASEs) are “employees” under HEERA, and therefore should be considered “employees” under the FEHA for consistency. At the time in question, HEERA in its definition of “employee” stated: “The board [Public Employment Relations Board per § 3562, subd. (b)] may find student employees whose employment is contingent on their status as students are employees only if the services they provide are unrelated to their educational objectives, or that those educational objectives are subordinate to the services they perform and that coverage under this chapter would further the purposes of this chapter.” (§ 3562, subd. (e).) Effective January 1, 2018, the subdivision now provides that “ ‘Employee’ or ‘higher education employee’ means any employee, including student employees whose employment is contingent on their status as students, of the Regents of the University of California . . . .” (§ 3562, subd. (e); Stats. 2017, ch. 854 (Sen. Bill No. 201), § 2, eff. Jan. 1, 2018.)

Defendant’s response to the amicus curiae brief says we should disregard the amicus brief because neither plaintiff nor defendant ever mentioned HEERA in the trial court or in their appellate briefs. However, defendant should have mentioned it, given that the acceptance letter mentions the CBA. Moreover, it is not true that no one mentioned HEERA in the trial court. Defendant’s memorandum of points and authorities in support of the summary judgment motion said plaintiff would not be considered an employee under federal anti-discrimination statutes and then said “see also, Association of Graduate Student Employees, District 65, UAW v. Public Employees Relations Board (1992) 6 Cal.App.4th 1133 (graduate student instructors and graduate student researchers are not employees for purposes of HEERA because educational objectives are paramount to services rendered[)] . . . .” The cited case (AGSE) did not decide the question as a matter of law but analyzed objective and subjective prongs.

In the trial court, plaintiff did not submit the CBA itself or assert it in his Statement of Disputed Facts as raising a material disputed fact. Rather, he merely mentioned it in his memorandum of points and authorities in opposition to the summary judgment motion, asserting that his “employment” position “was covered by a collective bargaining agreement, making Plaintiff a dues paying member of the Graduate Student Employees Union.” Similarly, on appeal, plaintiff merely mentions the CBA in his opening brief, stating “Appellant, like the other graduate student teaching assistants, was subject to paying dues, fees, and taxes as an employee and member of the Association of Graduate Student Employees Labor Union. [Citation to acceptance letter.] His work was governed by a collective bargaining agreement.”

But it was defendant’s burden, as the moving party, to address the CBA.

Defendant further opposes the amicus brief on the ground that HEERA is not helpful in interpreting FEHA, because employment status under HEERA is determined on a case-by-case basis by the Public Employees Relations Board with varying results (Regents of University of California v. Public Employment Relations Board (1986) 41 Cal.3d 601 [medical residents were HEERA employees]; AGSE, supra, 6 Cal.App.4th 1133 [graduate student instructors were not HEERA employees].) This argument does not help defendant but rather highlights the existence of triable issues of fact.

Defendant further argues that employment law is immaterial because plaintiff is complaining about adverse academic actions. However, defendant’s own evidence showed that the adverse action dismissing plaintiff from the MFA program was “due to his failed thesis and issues with TA grading.” Thus, both academic and “employment” matters were at issue.

We conclude defendant’s motion failed to show absence of a triable issue of material fact as to existence of an employment relationship.

III

No Triable Issue on FEHA Claims

Plaintiff’s appellate brief devotes only two pages to arguing triable issues of fact exist on the merits of his FEHA claims. Perhaps this is because the trial court did not grant summary adjudication on this basis. Nevertheless, we may affirm summary judgment if it is correct on any ground raised in the trial court, as this was. (Marshall, supra, 238 Cal.App.4th at p. 1107.) Defendant offers extensive discussion of this ground in its respondent’s brief, yet plaintiff did not file a reply brief. And the two-page argument in his opening brief does nothing more than express his conclusory opinion — unsupported by any citation to the record — that, because he had good grades before he complained about racism, the adverse academic and employment actions against him were motivated by racism. Additionally, as noted, plaintiff’s appellate brief weaves excluded evidence into his factual recitation without acknowledging that the trial court excluded the evidence.

“[T]he trial court’s judgment is presumed to be correct, and the appellant has the burden to prove otherwise by presenting legal authority on each point made and factual analysis, supported by appropriate citations to the material facts in the record; otherwise, the argument may be deemed forfeited. [Citations.] [¶] It is the appellant’s responsibility to support claims of error with citation and authority; this court is not obligated to perform that function on the appellant’s behalf. [Citation.]” (Keyes v. Bowen (2010) 189 Cal.App.4th 647, 655-656.)

On review of summary judgment, the appellant bears the burden of showing error, even though he did not bear the burden in the trial court. (Claudio v. Regents of University of California (2005) 134 Cal.App.4th 224, 230.) De novo review does not obligate us to cull the record in search of triable issues. (Ibid.) As with an appeal from any judgment, it is the appellant’s responsibility to demonstrate error affirmatively and point out triable issues by citation to the record and supporting authority. (Ibid.)

Plaintiff’s appellate showing is inadequate. But since the trial court did not rule on this ground, we have reviewed the record and conclude it reveals no triable issues requiring reversal of summary adjudication of the FEHA claims.

A. Discrimination/Retaliation

To state a prima facie case for discrimination under the FEHA, a plaintiff must establish that (1) he was a member of a protected class, (2) was performing competently in his employment position, (3) suffered an adverse employment action, and (4) some other circumstance suggests discriminatory motive. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.) Once an employee establishes a prima facie case, a presumption of discrimination arises, and the employer is required to offer a legitimate nondiscriminatory reason for the adverse employment action. (Id. at p. 356.) If the employer produces a legitimate nondiscriminatory reason, the presumption of discrimination drops out of the picture, and the burden shifts back to the employee to attack the employer’s proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive. (Ibid., citing McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792.)

The same rules apply for a claim of retaliation under the FEHA. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)

This framework is modified in the summary judgment context: “ ‘[T]he employer, as the moving party, has the initial burden to present admissible evidence showing either that one or more elements of plaintiff’s prima facie case is lacking or that the adverse employment action was based upon legitimate, nondiscriminatory factors.’ ” (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 861.) “If the employer meets its initial burden, the burden shifts to the employee to ‘demonstrate a triable issue by producing substantial evidence that the employer’s stated reasons were untrue or pretextual, or that the employer acted with a discriminatory animus, such that a reasonable trier of fact could conclude that the employer engaged in intentional discrimination or other unlawful action.’ ” (Ibid., italics omitted.)

A defendant who moves for summary judgment in a FEHA case may proceed directly to the step of showing legitimate, nondiscriminatory reasons for its actions. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 357.)

Defendant met its burden to show its actions were based upon legitimate, nondiscriminatory, nonretaliatory reasons.

Thus, plaintiff lost his student teaching opportunities because he repeatedly refused to comply with his professor’s grading requirements and continued to give all students A’s and A+’s, which led to his “unsatisfactory” grade in his TA training course. And, after failing his thesis, he lost his place in the MFA program which was a prerequisite for a teaching position. He was not assigned an AI position for the 2012 summer session because he refused to comply with grading policies and was dropped from the MFA program. By the time plaintiff was reinstated into the MFA program, the AI position had already been filled. Plaintiff was not given a 2012 GSR position because it was to be under the direction of a visiting professor, but the professor became unavailable, and the GSR position was eliminated. In light of plaintiff’s failed thesis, grading issues, and the recommendation that he be disqualified from the MFA program, Professor Grenke chose not to assign plaintiff to a different GSR position.

Plaintiff was dropped from the MFA program because he put minimal preparation into his MFA thesis performance; he waited until mere weeks before the performance to search for funds; he regularly missed production meetings; and he did not make himself available for thesis meetings with Professor Grenke, who stayed involved despite being on sabbatical. Grading professors described plaintiff’s thesis performances as rambling and amateurish. Plaintiff cancelled his final thesis performance when event staff told him he could not bring into the auditorium persons without tickets who would exceed the capacity permitted by the fire code. Since plaintiff cancelled his performance, the venue had to issue refunds to nearly 50 angry patrons, resulting in thousands of dollars in lost revenue.

Thus, defendant showed legitimate, nondiscriminatory, nonretaliatory reasons for its actions.

Plaintiff has not presented any evidence of intentional discrimination or retaliation. He relies on a letter from a Professor Osumare, Director of African American Studies, who opined that defendant was motivated by racial animus. However, the trial court sustained defendant’s evidentiary objections to that letter and excluded it, and plaintiff has forfeited any challenge to that ruling by failing to raise it in his brief. (Frittelli, Inc. v. 350 North Canon Drive, LP (2011) 202 Cal.App.4th 35, 41.)

Plaintiff also claims discriminatory motive in the professor’s telling the stage manager to call the police when she was upset about plaintiff trying to violate the occupancy limits of the auditorium, but he relies on evidence excluded by the trial court.

Plaintiff asserts he received good grades before March 2011, when he complained about a hostile environment based on race. (The trial court sustained defendant’s evidentiary objections to the academic transcript submitted with plaintiff’s opposition to summary judgment, but defendant submitted the same document with its summary judgment motion, as an attachment to plaintiff’s complaint.) Defendant further asserts that after March 2011, defendant took negative actions against him including terminating his employment, denying him TA, AI, and GSR positions in April and June 2012, failing him in his MFA program in May 2012, and telling the undergraduate stage manager to call the police on plaintiff.

Defendant notes that the specific actions cited by plaintiff occurred long after his March 2011 complaint, which are too remote to support an inference of pretext or intentional retaliation. (Loggins v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102, 1110, fn. 6 [for inference of causal nexus, adverse action must follow within relatively short time].)

The record shows no triable issue for retaliation or discrimination.

B. Harassment

Harassment is distinguishable from discrimination under the FEHA. (Serri v. Santa Clara University, supra, 226 Cal.App.4th at p. 869.) Discrimination 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. (Ibid.) “Harassment” can take the form of discriminatory intimidation, ridicule and insult sufficiently severe or pervasive to create an abusive working environment. (Ibid.)

Plaintiff’s complaint contained no factual allegations of harassment. Defendant’s motion cited plaintiff’s discovery responses that he viewed as harassment such actions as dropping him from the program, failing to support his thesis work, speaking down to him, and telling the stage manager she could call the police on him, matters which have already discussed, which in any event were not alleged in his complaint as instances of harassment.

We conclude the trial court properly granted summary adjudication in favor of defendant on all FEHA claims.

IV

Contract Claims

Defendant sought summary adjudication of the contract claims based on evidence that UCD dropped plaintiff from the MFA program “due to his failed thesis and refusal to comply with the University’s grading practices,” and plaintiff failed to show breach of any contract. On appeal, plaintiff ignores this evidence and claims without evidentiary support that he complied with, and defendant breached, agreements. Defendant fails to show grounds for reversal regarding the contract claims.

V

Other Claims

On appeal, plaintiff does not challenge the trial court’s grant of summary adjudication in favor of defendant on the claims for negligence, unfair business practices, and punitive damages. We see no basis for reversing those rulings.

DISPOSITION

We affirm the judgment. Defendant shall recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a).)

HULL, J.

We concur:

RAYE, P. J.

ROBIE, J.
RAYE, P. J.

I concur fully in the judgment and the views expressed in the majority opinion. I write separately only to lament appellant’s failure to seriously address the ground on which we are affirming the trial court. Placing his eggs in a single basket, appellant devoted most of his effort on appeal and below to attacking the trial court’s determination that he was not an employee entitled to the protections of the Fair Employment and Housing Act or FEHA (Gov. Code, § 12900 et seq.). His attack prevailed, but alas, he has won that battle but lost the war, in light of our decision affirming the trial court’s decision on the ground that the University of California had legitimate, non-discriminatory reasons for its actions.

In argument before this court, appellant’s counsel expressed his suspicions that the University of California’s reasons were pretextual. But suspicions are not evidence and the two pages of written argument devoted to this issue in his opening brief are largely devoid of references to admissible evidence. Even more regrettable is the failure to file a reply brief in response to the extensive discussion of the issue in the respondent’s brief.

This case should serve as a reminder that appeals are won or lost based on the trial court record and principled argument, not on sound bites, speeches and innuendo. The suspicions of discrimination articulated by counsel lead one to wonder if appellant may have had an arguable case in opposition to summary judgment, a case that needed to be developed and refined. We can only wonder; neither the briefing nor the record before us supports appellant’s claim for relief.

RAYE, P. J.