(Super. Ct. No. 34200800004391CUOEGDS)
The opinion of the court was delivered by: Raye , P. J.
Jackson v. Pacific Bell Tel. Co.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Plaintiff Stacy Jackson, an employee of defendant Pacific Bell Telephone Company (Pac Bell) for nine years, filed suit against his employer alleging race discrimination, race harassment, and intentional infliction of emotional distress. Pac Bell filed a motion for summary judgment, which the trial court granted. Jackson appeals, arguing he has pleaded sufficient facts to establish each cause of action. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. Jackson's Early Employment with Pac Bell
In August 1999 Pac Bell hired Jackson as a construction splicer at its Rancho Cordova yard. Jackson is African American. The Rancho Cordova facility included four work crews: the fiber crew, the line crew, and two copper crews. Jackson worked with one of the copper crews, known as the "copper/digital crew."
Ann Hutto, an administrative manager for Pac Bell, was responsible for recording the qualifications of technicians on the "Sacramento Splicing Technicians Qualification Listing" (Qualification List). Hutto recorded a crew member's qualifications on the Qualification List after obtaining the information from the crew member's supervisor. Since 2002 the Qualification List had been protected by a password, and access was available for review purposes only. Pac Bell used the Qualification List in emergencies, allowing management to contact personnel who were qualified to perform particular jobs. Those personnel were able to earn overtime.
Jackson belonged to the Communication Workers of America Local 9421 (Union). In 2001 he became a Union steward and was elected to the Union's executive board.
The rest of Jackson's employment history is intertwined in the factual dispute between the parties. For clarity's sake we will set forth this factual background in the pertinent discussion section.
In December 2007 Jackson filed an administrative complaint against Pac Bell with the California Department of Fair Employment and Housing (Department) alleging demotion, harassment, denial of promotion, and retaliation based on race, and received a right-to-sue notice. In February 2008 Jackson sued Pac Bell, alleging race discrimination and harassment in violation of the California Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.), intentional infliction of emotional distress, and violation of the California Family Rights Act (Gov. Code, § 12945.2).
Jackson's amended complaint alleges he suffered four adverse employment actions: he was demoted from a senior position, he was denied proper fiber training, his qualifications were removed, and comments and incidents by supervisors.
In 2005 Eddie Talaska became Jackson's supervisor. In 2006 Talaska's senior splicing technician, or senior, an African American, wanted to transfer to the fiber crew. Management approved the transfer. Initially, Talaska selected one of Jackson's co-workers as the senior's replacement, but after Jackson reminded Talaska of the worker's attendance problems, Talaska selected Jackson for the position of senior.
At Pac Bell, the position of senior is a temporary position and is often part of a rotation. A splicer's job title and pay do not change upon becoming a senior. A senior filling in for a supervisor would receive $8.00 more per day, but the extra pay for filling in was not restricted to seniors.
As a senior, Jackson reviewed daily work requests for jobs, discussed the jobs with Talaska, assigned the jobs to crew members, organized the crew, prepared timesheets, and reviewed mail. Jackson continued to work in the field and substituted for Talaska when he was on vacation.
In November 2007 Talaska informed Jackson that a work slowdown necessitated his temporarily taking over Jackson's senior duties. According to Talaska, Jackson's senior duties would resume once work picked up again. According to Jackson, Talaska initially stated the reason for Jackson's removal was that Jackson was going to take "maternity" leave but quickly changed his reasoning to a work slowdown.
Talaska asked Jackson about his availability to fill in for him during the upcoming Thanksgiving holiday in light of Jackson's plan to take maternity leave. Jackson declined.
Jackson contacted Pac Bell's equal employment opportunity (EEO) consultant, Stephanie Davis, and stated he wanted to file an EEO complaint against Talaska for retaliation. Jackson told Davis that Talaska removed him as a senior because of a lack of work, Jackson's training of a co-worker, and Jackson's impending maternity leave.
The next day, Jackson told Davis he wanted to pursue an EEO complaint against Talaska. Jackson stated Talaska did not want him as a senior because of his race, and he was offended at Talaska's discussion of his maternity leave. Davis contacted Marvin Okada, a supervisor, and arranged for an interview.
Jackson also contacted Okada and told him Talaska was trying to remove him as a senior. Okada told Jackson that Talaska was not trying to remove him as a senior, but that work was slow and Talaska could handle the senior duties himself. In addition, Okada told Jackson part of his duties as a senior included training Damion Jackson.
Jackson told Okada about Talaska's mentioning his impending maternity leave. Okada told Jackson that Talaska needed to find someone to fill in for him while Talaska was on vacation and raised the issue of maternity leave to ascertain whether Jackson would be available.
Davis scheduled interviews for Jackson and four co-workers for November 19, 2007. In the interim, Jackson discovered someone wrote "you suck" on the inside of a utility bin on the company truck assigned to him. Jackson reported the incident, and Talaska immediately took photos and notified Okada. Both Jackson and Talaska reported the incident to Davis.
After Talaska began performing the senior duties, Andre Ramos, a senior from another crew, pulled "trouble tickets" for him as a favor. Crew member Josue Velasquez filled in for Talaska when he took Thanksgiving vacation.
Had Jackson agreed to fill in for Talaska, he would have received an extra $8.00 per day. Otherwise, Jackson's removal from senior duties had no impact on either his job classification or rate of pay.
Prior to the scheduled interviews, Jackson notified Davis that he had hired an attorney and that counsel had advised him not to speak to the EEO consultant. Davis called Jackson, requesting his cooperation in the investigation of his retaliation complaint against Talaska. Jackson declined to participate and stated counsel instructed him not to speak with anyone at Pac Bell.
In January 2008 Jackson went out on disability leave for knee surgery. Except for Velasquez filling in during the Thanksgiving holiday and Ramos periodically pulling trouble tickets as a favor, Talaska performed the senior duties until the work load increased in March 2008. Since Jackson was still on disability leave, Talaska selected Velasquez to perform senior duties.
Jackson returned to work for approximately one month in July 2008, performing modified work duties in an administrative position because of medical restrictions. Jackson went out again on disability leave and did not return to work.
After Jackson became a senior, Talaska selected him for fiber training with the fiber crew. Jackson declined the offer and suggested three other co-workers instead. Talaska sent these three co-workers, who ...