APPEAL from a judgment of the Superior Court for the County of Los Angeles. Elizabeth A. Grimes, Judge. Affirmed, as modified. (Los Angeles County Super. Ct. No. BC328516).
The opinion of the court was delivered by: Cooper, P. J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
An employee who was terminated after closing down a 24-hour service station for several hours, in violation of company policy, sued her employer and her supervisor, alleging claims of harassment on the basis of mental disability, retaliation, and wrongful termination, among others. The employer and supervisor sought and obtained summary judgment, and the supervisor then sought attorney fees. The court found the claims against the supervisor were frivolous and brought in bad faith, but awarded nominal attorney fees of $1.00 because the supervisor's fees were paid by the employer. The employee appealed from the grant of summary judgment, and the employer and supervisor cross-appealed from the award of attorney fees. We find no merit in either appeal and affirm the judgment, with a modification in the amount of costs.
FACTUAL AND PROCEDURAL BACKGROUND
Laura Young, a student at Antelope Valley College, worked as a sales associate at an ExxonMobil service station in Lancaster on a part-time basis from April 2004 until she was fired on September 16, 2004. The station was open 24 hours a day. On September 15, 2004, Young worked a shift, alone, from 9:00 p.m. until midnight. The person scheduled to relieve her at midnight did not arrive. Young called Wanda Najera, the assistant station manager, "some time after midnight," yelling and very angry, saying she had to leave because she had to study, and that she was shutting down the station. Najera told her she couldn't do that, and that she (Young) should wait for Najera to come to the station. At 12:25 a.m., Young shut down all the gas pumps and never turned them back on, effectively closing the station (a "posted offense" which she knew could result in a suspension or discharge without prior notice). At 1:12 a.m., she logged off her cash register, and the station was then completely shut down. Young called Angela Lopez, the station manager, at about 1:30 a.m., yelling and, according to Lopez, "out of control." Lopez told Young she would get someone there as soon as she could, and called Najera. Young also called Najera a second time, again yelling at Najera, and Najera told her she would be there as soon as possible. When Najera got to the station around 3:00 a.m., the station was completely shut down; Najera restarted the pumps and started operating the station.
The next morning, Lopez called Karen Johnson, a Territory Manager for Exxon Mobil (Exxon). Johnson went to the station on September 17 and met with Lopez about the incident. Johnson also reviewed Young's personnel file, which reflected a number of verbal and written warnings to Young concerning absences, problems with customers, and incidents of insubordination.*fn2 Lopez had prepared forms for Young's termination. Johnson did not have authority to terminate employees; she contacted Exxon's human resources department in Houston and described the circumstances. The department concluded that termination was proper on grounds of insubordination and neglect of duty, based on Young's conduct during the early morning hours of September 16th, and provided an "endorse code" demonstrating that Young's termination was endorsed by the department. Johnson thereupon signed the separation form terminating Young's employment.
A few months later, Young filed a charge with the Department of Fair Employment and Housing, alleging she was fired, harassed, and retaliated against by Lopez and other Exxon employees based on a mental disability. She requested and received a right-to-sue notice, and on February 9, 2005, filed a complaint against Exxon and Lopez. The complaint alleged causes of action against Exxon and Lopez for disability discrimination and harassment in violation of the Fair Employment and Housing Act (FEHA, Gov. Code, § 12900 et seq.) and for intentional infliction of emotional distress, as well as causes of action against Exxon for wrongful termination in violation of public policy and violation of Labor Code section 1102.5, subdivision (c).*fn3 The substance of Young's complaint was as follows.
As a result of a tumor removed from her brain when she was a child, Young suffers from a mental disability: visual and audio processing deficiencies,*fn4 manic depression and obsessive compulsive disorder. Exxon was not aware of Young's disability when she was hired in April 2004, but on July 3, 2004, Young was given a warning for showing disrespect to Lopez when Lopez reprimanded her for failing to appear for work without calling. Young then advised Lopez of her disability, telling Lopez that she needed to take medication "to avoid becoming manic and to control compulsive behaviors associated with [her] mental and physical disabilities associated with her childhood brain surgery."*fn5
Young's complaint alleged that shortly after Lopez learned of Young's disabilities, Young's co-workers "engaged in a continuous, severe and pervasive campaign of harassing" Young. This consisted of ignoring Young; physically obstructing her from moving around in the station's work area; telling customers, vendors and suppliers that they worked with a "psycho-retard"; and showing up late to work so that Young would be required to work longer hours. Young reported her co-workers' behavior to Lopez and asked Lopez to instruct them to stop the harassing behavior. Instead of doing so, Lopez retaliated against Young by telling her "this type of stuff just happens"; cutting Young's hours; refusing to schedule around Young's school schedule; refusing to allow Young to train new employees assigned to the graveyard shift; telling other employees that she (Lopez) did not know why Young was attending college because Young was retarded; and telling another Exxon Mobil manager that she (Lopez) was working with a "retard." On September 7, 2004, after Young "made a number of verbal complaints" to Lopez, Young drafted a handwritten letter about her complaints and gave it to Lopez along with print-outs from websites discussing the laws on disability discrimination. The "ultimate act of retaliation" occurred when Lopez told Young her employment was terminated. Young sought general, special and punitive damages, as well as attorney fees.
Exxon and Lopez moved for summary judgment or, in the alternative, summary adjudication of each cause of action and of Young's claim for punitive damages. They asserted there was no evidentiary support for Young's claims; even if Young could establish a prima facie case of disability discrimination, Exxon had legitimate, non-discriminatory reasons for terminating Young, and Young could not establish those reasons were pretextual. As for Young's harassment claim, Exxon contended most of her allegations lacked evidentiary support, and her co-workers' conduct was not severe or pervasive enough to constitute disability harassment (and, as to her claim against Lopez, Young admitted in her deposition that Lopez herself did not harass her). Finally, Exxon contended the punitive damages claim failed as a matter of law because the alleged wrongful acts were not committed by officers or managing agents of Exxon.
The trial court granted the motion for summary judgment, finding Exxon showed legitimate, non-discriminatory and non-retaliatory reasons for terminating Young's employment, and Young presented no facts showing Exxon's stated reasons were pretextual.*fn6
Lopez then filed a motion for attorney fees under Government Code section 12965, contending that Exxon, on behalf of Lopez, incurred substantial attorney fees defending Young's "unreasonable, frivolous, and meritless claims against Lopez individually." Lopez sought $18,750 in attorney fees, approximately one quarter of the total fees incurred in the action. (Exxon's counsel stated this was a fair and reasonable apportionment, as the harassment wrong targeting Lopez "made up approximately 1/4 of the case ..")
The trial court found that Young's claims against Lopez were "unreasonable, frivolous, meritless and vexatious," "without foundation" and "brought in subjective bad faith." However, while the fees claimed to be attributable to Lopez's defense were reasonable in amount, Exxon paid for the defense. The court observed that an award to Lopez "would actually be an award to Exxon, which does not claim [Young's] claims against it were frivolous." The trial court concluded this "does not seem right," and awarded nominal attorney fees of $1.00.
On April 4, 2006, judgment was entered in favor of Exxon and Lopez in the amount of $25,999.93 ($1.00 in attorney fees and $25,998.93 in costs). (Exxon admits the amount of costs shown in the judgment was erroneous, and the judgment should have reflected a total amount of $7,249.93 ($1.00 in attorney fees and $7,248.93 in costs).) Young appealed, and Exxon and Lopez cross-appealed the attorney fee award of $1.00. DISCUSSION
Young challenges the grant of summary judgment on several grounds. She claims there was evidence of severe and pervasive harassment, and the trial court failed to consider that Young's harassment claim could succeed without a finding that her termination was pretextual. Young also contends there was evidence of retaliation, including the temporal proximity between Young's September 7, 2004 complaint of harassment and her September 16 termination. She asserts her "irritability and attitude problem is a part of her disability," so terminating her for misconduct caused by her disability was functionally the same as firing her because of her disability. Young further claims the summary judgment hearing should have been continued to allow her to depose Karen Johnson and Wanda Najera.
We reject all of Young's contentions. Her evidence, as a matter of law, does not establish harassment sufficiently severe or pervasive to be actionable under the FEHA, and the trial court correctly concluded Young's evidence was insufficient to demonstrate that Exxon's stated reasons for Young's termination were pretextual. Because no triable issues of material fact exist, Exxon and Lopez were entitled to summary judgment. We discuss Young's various contentions in turn.
A. Young Failed to Present Evidence that Exxon's Stated Reasons for her Termination were Pretextual
It is an unlawful employment practice for an employer to discriminate against a person because of a physical or mental disability. (Gov. Code, § 12940, subd. (a).) To establish a prima facie case of discrimination, Young had to show, in addition to her disability (which was not disputed for purposes of Exxon's summary judgment motion), that she was otherwise qualified to do her job, and was terminated because of her disability. (See Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 886.) On a motion for summary judgment, Young had to establish a prima facie case and, because Exxon offered a legitimate, nondiscriminatory reason for her termination, had to "'offer evidence that the employer's stated reason is either false or pretextual, or evidence that the employer acted with discriminatory animus, or evidence of each which would permit a reasonable trier of fact to conclude the employer intentionally discriminated. [Citation.]'" (Ibid.) Young failed to do so.
First, none of Young's evidence supports the notion that there was any causal connection between her disability and her termination. There is no merit to Young's argument that her "irritability and attitude problem is a part of her disability," so terminating her for misconduct caused by her disability was functionally the same as firing her because of her disability. Young cites Gambini v. Total Renal Care, Inc. (9th Cir. 2007) 486 F.3d 1087, in which the court concluded a jury could reasonably infer that the plaintiff's violent outburst, which was one of the reasons for her termination, was a consequence of her bipolar disorder, "which the law protects as part and parcel of her disability." (Id. at p. 1094.) In Gambini, plaintiff was "in the throes of a medication change" and "struggling to perform her job because of her symptoms." (Id. at pp. 1094, 1091.) The court stated that "where an employee demonstrates a causal link between the disability-produced conduct and the termination, a jury must be instructed that it may find that the employee was terminated on the impermissible basis of her disability." (Id. at p. 1093.) In Young's case, however, her own evidence was that, so long as she took her medications on the prescribed schedule, she was "perfectly normal." She further testified there was ...