IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
October 11, 2011
STACY JACKSON, PLAINTIFF AND APPELLANT,
PACIFIC BELL TELEPHONE COMPANY, DEFENDANT AND RESPONDENT.
(Super. Ct. No. 34200800004391CUOEGDS)
The opinion of the court was delivered by: Raye , P. J.
Jackson v. Pacific Bell Tel. Co.
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
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.
B. Jackson's Complaint
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.
1. Senior Status
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.
2. Fiber Training
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 completed the training and became qualified in fiber.
In 2007 Jackson asked Talaska for fiber training. Talaska granted Jackson's request and sent him to on-site training with the fiber crew for two days, and afterward allowed fiber-qualified co-workers from his own crew to train Jackson for 15 days.
In September 2007 the Union requested a meeting with Pac Bell management to discuss concerns about racial problems. Jackson, as Union steward, along with other Union representatives, attended the September 4, 2007, meeting. Several Pac Bell supervisors attended, representing management.
During the meeting, Jackson raised an issue from 1999 and stated that in 2003 he had received a memo with the notation, "Better watch out."
3. Removal of Qualification
VRAD, an acronym for new technology relating to digital equipment used to provide television service, was not added to the Qualification List until September 2007. Jackson and three other employees became VRAD qualified sometime prior to December 2007. Of the three, one was a white female and one a white male. All four listings were delayed until March 2008, when Talaska informed Hutto that the four should be listed as VRAD qualified. Jackson's VRAD qualification was never removed after being listed.
4. Incidents Involving Supervisors Seniority Ranking
In March 2000 Jackson informed his supervisor and the Union that he should have a higher seniority ranking. Jackson was told that seniority for employees with the same date of hire is determined by adding the last four digits of each employee's Social Security number and ranking accordingly. The Union verified the system and found Jackson's supervisor had calculated incorrectly. The seniority list was corrected and Jackson achieved his correct ranking.
Anthony Chua supervised Jackson in 2002. In Jackson's 2002 performance evaluation, Chua commented that Jackson could improve in troubleshooting. Jackson filed a Union grievance about the comment, and the comment was removed from his evaluation.
Anthony Gilmore, an African American, supervised Jackson in 2003. According to Jackson, Gilmore used the word "nigger" in a meeting with Jackson and two other African-Americans, George Winston and Ben James. Except for that comment, Jackson could not recall the purpose of the meeting, anything else said, the context in which Gilmore uttered the epithet, or whether anyone responded to the comment. Jackson did not complain to anyone at Pac Bell, nor did either of the other participants at the meeting.
Jackson contends Scott Heiser once whispered to Gilmore in front of him. Jackson did not hear what Heiser said, but Gilmore then asked Jackson about the cable he was working on. Although Jackson was offended by the incident, he never reported it.
Neither Heiser nor Gilmore ever stated Jackson did anything improper. Gilmore stated he was pleased with Jackson's work.
In 2003 Jackson was in the crew room talking with co-workers at the end of the day. Heiser appeared and someone told him they were waiting until 5:30 to clock out. Heiser admonished the co-workers that they should have clocked out when they finished work at 5:15.
The following day, Jackson received a copy of the last page of a memo Heiser sent to supervisors about clocking out procedures. On Jackson's copy appeared the handwritten words, "Better Watch Out." According to Jackson, none of the other workers present during the incident received a similar note. Jackson did not report the incident but contends the note was sent by Heiser. Heiser denied sending the note and stated the handwriting was not his.
C. Trial Court's Ruling on Summary Judgment
Pac Bell filed a motion for summary judgment, which Jackson opposed. The trial court granted the motion on Jackson's causes of action for race discrimination and harassment, intentional infliction of emotional distress, and violation of California's Moore-Brown-Roberti Family Rights Act (CFRA; Gov. Code, § 12945.2, mistitled the California Family Leave Act). The court found the material facts were essentially undisputed.
The court rejected Jackson's claim that his removal from senior duties constituted an adverse employment action. According to the court, Jackson's removal did not adversely affect his job classification or rate of pay.
With respect to Jackson's contention that his VRAD qualification was removed from the Qualification List, the court found his listing was only delayed, along with other workers', and was never removed. In addition, Jackson failed to present evidence that he lost an opportunity to earn overtime because of the delay.
The court also rejected Jackson's assertion that he was not trained in fiber. Delay in obtaining fiber training, the court found, did not constitute an adverse employment action.
As for Chua's comment in Jackson's work evaluation, the court determined a single negative comment is insufficient to support a claim of adverse employment action. The other actions Jackson complained of, Heiser's whispering and the anonymous note, were too isolated and trivial to support a claim of harassment.
The court considered Jackson's contention that a racial epithet supported his claims. The court found: "Plaintiff has admitted that none of his supervisors made any derogatory racial remarks, and when plaintiff complained about Talaska, an investigation into his complaint was immediately commenced. However, plaintiff refused to cooperate based on the advice of counsel."
The court also found legitimate business reasons for Pac Bell's actions. Jackson failed to make a showing of pretext. In addition, the court determined Jackson failed to exhaust his administrative remedies for all acts prior to December 2006, barring those claims.
Following entry of judgment, Jackson filed a timely notice of appeal.
DISCUSSION Standard of Review
A motion for summary judgment must be granted if the submitted papers show there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The moving party initially bears the burden of making a "prima facie showing of the nonexistence of any genuine issue of material fact." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 845.) "A prima facie showing is one that is sufficient to support the position of the party in question." (Id. at p. 851.) "Thus, if a plaintiff who would bear the burden of proof by a preponderance of evidence at trial moves for summary judgment, he must present evidence that would require a reasonable trier of fact to find any underlying material fact more likely than not--otherwise, he would not be entitled to judgment as a matter of law, but would have to present his evidence to a trier of fact." (Ibid., italics omitted.) Once the moving party has met its burden, the burden shifts to the opposing party to show the existence of a triable issue of material fact. (Code Civ. Proc., § 437c, subds. (c), (p)(2).)
We review de novo the record and the determination of the trial court. First, we identify the issues raised by the pleadings, since it is those allegations to which the motion must respond. 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. (Barclay v. Jesse M. Lange Distributor, Inc. (2005) 129 Cal.App.4th 281, 290.)
Race Discrimination Claim
To state a prima facie claim for discrimination in violation of FEHA, Jackson must establish that (1) he is a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, and (4) some other circumstance that suggests a discriminatory motive. (See Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1246.) If Jackson makes a prima facie showing, the burden shifts to Pac Bell to provide a legitimate, nondiscriminatory reason for the challenged employment decision. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355-356.) If Pac Bell meets this burden, Jackson must produce substantial evidence demonstrating the employer's reason was a pretext for discrimination. (Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 1003 (Hicks).)
Jackson argues on appeal that he suffered adverse employment actions based on his race when Talaska demoted him from a senior position. He also asserts Talaska's removal of his VRAD qualification and refusal to provide fiber training constituted adverse employment actions. Finally, Jackson argues Chua's false evaluation was an adverse employment action.
Jackson points to the removal of his senior status as an action taken by Pac Bell that affected his employment. However, Jackson's loss of senior status did not affect his job classification or rate of pay. To be actionable, an adverse employment action must materially affect the terms, conditions, or privileges of employment. Minor adverse actions do not qualify. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1052, 1054 (Yanowitz).)
Even if we were to find Jackson's removal from senior status adversely affected his employment, Pac Bell established it had a legitimate, nondiscriminatory reason for its action. Talaska took over Jackson's senior duties when work slowed down. An employment action taken as a result of a lack of work constitutes a legitimate business reason. (Aragon v. Republic Silver State Disposal, Inc. (2002) 292 F.3d 654, 661.)
Jackson disagrees, arguing that Talaska gave him conflicting reasons for the demotion and that the workload had not diminished. We are not persuaded.
Talaska and Okada both declared Jackson's loss of senior duties was the result of a work slowdown. When he removed Jackson's senior duties Talaska mentioned the work slowdown, along with Jackson's now having more time to train Damion Jackson and Stacy Jackson's impending maternity leave. The mere mention of these other issues does not in any way vitiate the validity of the work slowdown as the reason Talaska took over Jackson's senior duties.
Jackson also disputes Pac Bell's statement that work had slowed down. Jackson argues his senior duties were given to a senior from another crew. However, the other senior, Andre Ramos, only picked up the trouble tickets as a favor to Talaska. Jackson presented no evidence that Ramos performed any other senior duties, or that Talaska delegated any other senior duties.
Jackson also references testimony by several Pac Bell employees who disputed the work slowdown. Edgar Macias, who did not work on Jackson's crew, stated not only was Jackson's crew not short of work, Talaska was giving work to other crews. Karl Rose, who worked on the same crew as Jackson, testified he did not notice a work slowdown. Damion Jackson, another member of Stacy Jackson's crew, testified that when the senior who replaced Stacy Jackson began working, the work did not become busier.
The trial court considered this testimony and found: "The evidence provided by plaintiff to dispute the slowdown in work, is provided by someone who did not work on plaintiff[']s crew, and his belief is insufficient to show pretext." We agree.
Macias, Rose, and Damion Jackson each stated they "believed" work was not slow. Jackson argues that "the direct observations of these individuals who collectively possessed several decades of experience working with Respondent cannot be diminished as mere 'speculation'." However, such a belief does not create a triable issue of fact. Jackson must present specific substantial evidence demonstrating Pac Bell's reason for its employment decision was not the proffered reason and that it was a pretext for discrimination. (Hicks, supra, 160 Cal.App.4th at p. 1103.)*fn1
Jackson also argues Talaska demoted him in retaliation for his participation in EEO investigations. However, Jackson offers only his testimony that Talaska said, "We're getting tired of these things." Jackson fails to connect this offhand remark to the EEO investigations.
In addition, when the alleged discriminator both hires and fires an employee, a strong inference exists that the decision was not discriminatory. (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 809.) Here, Talaska both hired and demoted Jackson, raising the presumption that his action was not racially based. Jackson argues he can overcome that presumption. Again, we disagree.
Jackson contends the incorrect ranking of his seniority provides evidence of Pac Bell's discriminatory motives. Pac Bell presented evidence that Shirley Clark's incorrect ranking was a mistake that was corrected. We are not persuaded by Jackson's assertion that "the information given to Jackson by management regarding the seniority discrepancy was inconsistent and specious."
Jackson argues he was denied proper tools, another of the indicia of Pac Bell's employment discrimination. According to Jackson, he was denied the use of high level warning signs commonly given to Caucasians, forced to use dirty roadside cones, and denied access to important work tools.
In support, Jackson offers the testimony by Edgar Macias. Macias, who was not a member of Jackson's crew, testified that African-Americans were not given proper tools to do their work. Regarding Jackson, Macias testified Jackson once borrowed his utility work sign. Co-worker Karl Rose testified Jackson was not offered the same benefits and considerations as other employees. However, such general testimony does not provide substantial evidence that Pac Bell's proffered reason for removing Jackson's senior duties was mere pretext masking a discriminatory motive.
Jackson also stated he heard the word "nigger" used twice, providing evidence of pretext. In support, Jackson also cites testimony by other employees who heard the racial epithet.
Jackson heard a co-worker he was training use the word. He did not report the incident. In about 2003 Gilmore, an African-American supervisor, made the comment at a meeting with Jackson and two other African-American employees. Jackson's memories of the meeting were somewhat vague, and again, he never reported the incident.
Moreover, Jackson fails to connect either comment with the decision-making process that resulted in his being relieved of his senior duties. An alleged discriminatory comment must be related to the employment decision at issue to establish a triable issue of fact as to an employer's intent. "Stray" remarks do not qualify. (Gibbs v. Consolidated Services (2003) 111 Cal.App.4th 794, 801.)
Removal of VRAD Qualification
Jackson argues Talaska's removal of his VRAD qualification constituted an adverse employment action. The trial court disagreed, noting Jackson's VRAD qualification was only delayed and that his claim of lost opportunity to earn overtime because of the delay was speculative and not supported by any evidence.
The record supports the trial court's conclusion. Jackson was not listed as VRAD qualified until March 2008; the VRAD qualification was not removed from the Qualification List, it was omitted. Jackson completed the VRAD training class with three other employees sometime prior to December 2007; the VRAD qualifications of those employees (including two Caucasians) were also omitted from the Qualification List.*fn2
Jackson also asserts that the absence of his VRAD qualification from the Qualification List deprived him of overtime. Jackson failed to present any evidence that such overtime was available during that time period.
In an effort to show the omission was a pretext for discrimination, Jackson contends another African-American employee also had his VRAD qualification removed. Again, Jackson must supply substantial evidence of pretext; the unsubstantiated experiences of a co-worker do not qualify.
Jackson contends Pac Bell's refusal to train him in fiber resulted in an actionable adverse employment action. Jackson acknowledges Talaska offered to send him to be trained in fiber, but argues he was only allowed to train with members of his own crew who were not trained in fiber rather than train with the fiber crew. Jackson argues Talaska set him up to fail to qualify in fiber.
As noted, Jackson originally turned down an offer of fiber training. When Jackson later asked for fiber training, Talaska sent him for two days' fiber training. Jackson then returned to his own crew for an additional 15 days of fiber training.
An adverse employment action must be both detrimental and substantial. (Thomas v. Department of Corrections (2000) 77 Cal.App.4th 507, 511.) Jackson's fiber training delay does not rise to the level of an adverse employment action.
According to Jackson, the false evaluation by Chua was an adverse employment action. Chua's comment that Jackson could improve his troubleshooting skills was ultimately removed from his evaluation.
A single negative comment, later expunged, is not an act that materially affected Jackson's terms and conditions of employment, and is insufficient to support a claim of adverse employment action against Jackson. (Yanowitz, supra, 36 Cal.4th at p. 1054.)*fn3
Race Harassment Claim
To establish a claim for racial harassment, Jackson must establish offensive comments or other abusive conduct based on his race sufficiently severe or pervasive to alter the conditions of his employment. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 130; see Gov. Code, § 12940.) Harassment consists of actions outside the scope of job duties that are unnecessary to business and personnel management. Common personnel management actions such as hiring, job assignments, and performance evaluations do not come within the meaning of harassment. (Reno v. Baird (1998) 18 Cal.4th 640, 646-647.) Occasional, isolated, or trivial actions are not enough to alter employment conditions and create a hostile environment. (Aguilar, supra, 21 Cal.4th at pp. 130-131.)
An employer is strictly liable for the harassing conduct of its supervisors. (State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1042.) Whether an abusive environment exists is determined by the totality of the circumstances, including the frequency of the conduct, severity of the conduct, whether the conduct is physically threatening or humiliating, and whether the conduct interferes with employee work performance. (Etter v. Veriflo Corp. (1998) 67 Cal.App.4th 457, 464-466.)
Jackson argues he was subjected to unwanted harassment on the basis of his race through the frequent use by Pac Bell's employees of a racial epithet. According to Jackson, the use of the epithet was frequent and pervasive, and Pac Bell took no action to address this harassment.
As discussed above, Jackson cites two instances in which he heard an employee use the racial epithet: once while training a co-worker and once in a meeting with Gilmore. As previously discussed, neither of these incidents, which Jackson failed to report, rises to the level of severe or pervasive acts creating a hostile work environment.
Jackson also offers testimony by Rose and Macias that they too heard employees use the racial epithet. However, Jackson was not present when these comments were made. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 611-613.)
Other Evidence of Racial Harassment
Jackson contends other conduct against African-American employees constitutes racial harassment. Jackson cites his demotion, denial of training, and the removal of his VRAD qualification from the Qualification List as evidence of harassment. However, as discussed above, we do not find these actions were based on Jackson's race.
Jackson also argues the incident with Scott Heiser and the handwritten note that stated Jackson "better watch out," as well as the later incident in which a note saying "you suck" was left in his work truck, rose to the level of racial harassment. However, Jackson offered no evidence linking Heiser to the handwritten note or connecting the note in the truck to his race.*fn4
Jackson acknowledges that Talaska, Heiser, and Parson never made any derogatory comments. When Jackson complained about Talaska in 2007, Pac Bell initiated an investigation. Jackson has failed to present a triable issue of fact in support of his racial harassment claim.
Intentional Infliction of Emotional Distress
To establish intentional infliction of emotional distress, Jackson must show (1) extreme and outrageous conduct by Pac Bell with the intent of causing, or reckless disregard of the probability of causing, emotional distress; (2) that he suffered severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by Pac Bell's outrageous conduct. To be outrageous, conduct must be so extreme as to exceed all bounds that are usually tolerated in civilized society. (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001.)
Jackson contends he was subjected to Gilmore's derogatory comment in 2003 and that someone left a note saying "you suck" inside his truck. However, neither of these incidents was sufficiently outrageous to support a claim of intentional infliction of emotional distress.
The judgment is affirmed. Pac Bell shall recover costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
We concur: NICHOLSON , J. BUTZ , J.