Filed 5/15/14 Griffin v. Quest Diagnostics Clinical Laboratories CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
GIL GRIFFIN, D062727
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2011-00090876-
CU-OE-CTL)
QUEST DIAGNOSTICS CLINICAL
LABORATORIES, INC.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County, Judith F.
Hayes, Judge. Affirmed.
Mirch Law Firm, Kevin J. Mirch, Marie C. Mirch, and Erin E. Hanson for Plaintiff
and Appellant.
Baker & McKenzie, Colin H. Murray and Daniel G. Valles for Defendant and
Respondent.
Gil Griffin sued his employer, Quest Diagnostics Clinical Laboratories, Inc.
(Quest), alleging common law and Fair Employment and Housing Act (FEHA) causes of
action. After sustaining a demurrer on several claims, the court granted Quest's summary
judgment motion on the remaining claims. Griffin challenges the court's summary
judgment ruling on three causes of action: FEHA racial discrimination, FEHA
retaliation, and negligence. He also challenges the court's evidentiary rulings. We reject
Griffin's contentions and affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY1
We summarize the admissible evidence in the light most favorable to Griffin, the
party opposing the summary judgment. (See Garcia v. W&W Community Development,
Inc. (2010) 186 Cal.App.4th 1038, 1041 (Garcia).) Additional facts will be set forth in
the legal discussion of the appellate issues.
Quest hired Griffin in May 2005 as a route service representative. His duties
included transporting laboratory materials to and from various locations. Shortly after he
was hired, Griffin's coworker, Aime Longoria, told him she dates only " 'black guys.' "
Griffin is African-American; Longoria is Hispanic. There is no evidence Griffin
complained about this remark to a manager or supervisor.
About two years later, Longoria became Griffin's supervisor. While in that role,
Longoria told Griffin that he could not wear black shorts and that Quest's uniform policy
1 In violation of appellate rules, Griffin asserts numerous facts in his appellate briefs
that are unsupported by evidence in the summary judgment record. We disregard each of
these factual assertions, and do not further discuss them.
In setting forth the facts, both parties cite to the statement of undisputed facts
and/or the responsive statement. These citations are unhelpful and create unnecessary
work for the reviewing court. Unless a fact is undisputed, parties should provide a
supporting citation to specific evidence in the summary judgment record, and should not
cite to the assertions contained in their statutory statements of undisputed/disputed facts.
2
requires that route drivers wear khaki-colored pants. Although this was an accurate
statement of Quest's clothing policy, Griffin has seen numerous employees violating the
policy at various times.
In August 2008, Griffin received corrective counseling and a final written warning
after a female coworker complained to management that Griffin had inappropriately
touched and kissed her and this made her feel uncomfortable. During the investigation of
this complaint, Griffin admitted he had recently hugged numerous female coworkers, but
said the hugs reflected his "thank-you" for wedding gifts these women had given him.
Quest had previously warned Griffin to refrain from hugging other employees.
Griffin received raises each year he was employed by Quest, except in 2009.
Griffin was not given a raise in 2009 because he received an improvement-needed grade
on a performance review. This grade was based on Quest's finding that Griffin had
misrepresented that he was at a hospital pickup at a particular time. Griffin disagreed that
he had misrepresented his pickup time, and believed Quest's action reflected that he had
"a different level of scrutinization than other employees."
The next year, in about September or October 2010, Griffin took a break at the end
of the day in the employee break room. Supervisor Longoria told Griffin he could not
use this room to take his break and must take his break during his shift. Griffin was later
given a written warning regarding this matter. These oral and written admonishments
accurately reflected company policy that route service drivers must take their breaks
during their shifts while they are on the road, and not at company offices. Quest imposes
this break policy to comply with California wage and hour laws.
3
Less than six months later, in February 2011, Griffin filed claims with the
Department of Fair Housing and Employment (DFEH) against three of his supervisors
(Longoria, Anita Smith, and Dennis Hogle). On the form complaints, Griffin alleged he
was subjected to harassment, discrimination, and retaliation. On the portion of the forms
asking for the basis for the alleged unlawful acts, Griffin checked the spaces identified as
"sex" and "retaliation for engaging in protected activity" and left blank the space for
"race/color."
Shortly after, the DFEH issued Right to Sue notices.
Within several months, Griffin filed a superior court complaint against Quest and
various individual defendants. As amended, the complaint alleged eight causes of action.
Five of the claims alleged FEHA violations: retaliation, failure to accommodate a
disability, failure to prevent discrimination and retaliation, sexual harassment, and racial
discrimination. (Gov. Code,2 § 12940, subds. (a), (h), (j), (k).) Two of the causes of
action alleged common law claims: negligence and conversion. Griffin's remaining
cause of action alleged Quest failed to properly compensate him for overtime work.
(Lab. Code, § 1194.)
The court sustained Quest's demurrer to several of the statutory claims: denial of
accommodation, failure to prevent discrimination and retaliation, and sexual harassment.
The court found the claims were barred by the applicable limitations period and the
allegations were insufficient to support the asserted causes of action. The court also
2 All further unspecified statutory references are to the Government Code.
4
granted a motion to strike the claims against the individual defendants. Griffin does not
appeal from these rulings.
Quest then successfully moved for summary judgment on the remaining claims.
Griffin appeals from the court's ruling only on three causes of action: (1) racial
discrimination in violation of the FEHA; (2) retaliation in violation of the FEHA; and (3)
negligence. We discuss the relevant portions of the summary judgment record when
examining each of Griffin's appellate contentions.
DISCUSSION
I. Summary Judgment Review Standards
A summary judgment motion "shall be granted if all the papers submitted show
that there is no triable issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) A triable issue of
material fact exists only if "the evidence would allow a reasonable trier of fact to find the
underlying fact in favor of the party opposing the motion in accordance with the
applicable standard of proof." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826,
850 (Aguilar).)
The issues on a motion for summary judgment are framed by the pleadings.
(Sweat v. Hollister (1995) 37 Cal.App.4th 603, 607.) A moving defendant has the initial
burden to show one or more elements of the plaintiff's cause of action cannot be
established, or that there is a complete defense to the claim. (Garcia, supra, 186
Cal.App.4th at p. 1041.) If the defendant meets this burden, the burden shifts to the
plaintiff to show the existence of a triable issue. (Ibid.) The plaintiff may not rely upon
5
the pleading allegations but instead must set forth specific facts based on admissible
evidence showing a triable issue of material fact on the cause of action. (Merrill v.
Navegar, Inc. (2001) 26 Cal.4th 465, 476-477; Trujillo v. First American Registry, Inc.
(2007) 157 Cal.App.4th 628, 635.)
We review a summary judgment de novo. (Buss v. Superior Court (1997) 16
Cal.4th 35, 60.) We consider all of the evidence and inferences reasonably drawn from
the evidence, and view the evidence in the light most favorable to the opposing party.
(Aguilar, supra, 25 Cal.4th at p. 843; see O'Riordan v. Federal Kemper Life Assurance
Co. (2005) 36 Cal.4th 281, 284.) "Because a summary judgment denies the adversary
party a trial, [the motion] should be granted with caution." (Colores v. Board of Trustees
(2003) 105 Cal.App.4th 1293, 1305.)
A summary judgment is presumed to be correct, and the appellant bears the burden
of affirmatively demonstrating error. (See Claudio v. Regents of the University of
California (2005) 134 Cal.App.4th 224, 252.) It is the appellant's responsibility to point
out the claimed triable issues by specific citation to the factual record and supporting
legal authority. This court is not " 'obligate[d] . . . to cull the record for the benefit of the
appellant.' " (Bains v. Moores (2009) 172 Cal.App.4th 445, 455.) When an appellant
fails to raise a point, or asserts it but fails to support it with reasoned argument and
appropriate legal and factual citations, we treat the point as forfeited. (Badie v. Bank of
America (1998) 67 Cal.App.4th 779, 784-785; Jones v. Superior Court (1994) 26
Cal.App.4th 92, 99.)
6
Under these principles, we examine the court's summary judgment ruling on each
of the three challenged causes of action. We consider Griffin's allegations in his
complaint to frame each cause of action, and then examine the applicable law and the
parties' evidence to determine whether the court properly granted summary judgment.
II. Racial Discrimination Cause of Action
A. Background
In his racial discrimination cause of action, Griffin alleged his race was a "factor
in Defendants' actions . . . against him." He specifically alleged Quest discriminates
against African-Americans in hiring, promotion, and pay decisions. He claimed he
suffered damages in the form of "severe mental anguish and emotional distress" and a
loss of earnings "due to Quest's overtime calculations."
Quest moved for summary judgment on this claim on various grounds, including
that Griffin failed to exhaust his administrative remedies, there is no evidence of
discrimination under disparate treatment or disparate impact theories, and Griffin did not
suffer an adverse employment action based on the claimed racial discrimination. The
trial court agreed with each of these arguments and granted summary judgment on this
claim. Griffin challenges this conclusion on appeal. We determine the court properly
granted the motion because the claim is barred by Griffin's failure to exhaust
administrative remedies and Griffin failed to produce admissible evidence showing he
was discriminated against based on his race.
7
B. Exhaustion of Administrative Remedies
Section 12960 provides an employee bringing a FEHA claim must exhaust an
administrative remedy by filing an administrative complaint with the DFEH within one
year after the alleged unlawful action occurred. (§ 12960, subd. (d); see Acuna v. San
Diego Gas & Electric Co. (2013) 217 Cal.App.4th 1402, 1412; Okoli v. Lockheed
Technical Operations Co. (1995) 36 Cal.App.4th 1607, 1613 (Okoli).) "To exhaust his or
her administrative remedies as to a particular act made unlawful by the [FEHA], the
claimant must specify that act in the administrative complaint, even if the
[administrative] complaint does specify other cognizable wrongful acts." (Martin v.
Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1724 (Martin).)
In this case, Griffin filed three form complaints with the DFEH on February 15,
2011. The complaints were identical, except each named a different supervisor. On each
form, Griffin checked boxes alleging the supervisor had engaged in various prohibited
acts (including harassment and failure to prevent discrimination) because of "sex" and
because of "retaliation . . . ," but he did not check the boxes alleging that he had been
harassed or discriminated against based on "race/color" or "national origin/ancestry." He
attached a lengthy narrative summary in which he did not mention any form of racial
discrimination, and instead discussed his belief that Quest was treating him unfairly and
was retaliating against him for complaining about overtime pay issues and other
unspecified unlawful employment practices.
Griffin acknowledges he did not identify racial discrimination on the DFEH
complaint forms, and thus he did not satisfy the rule requiring exhaustion of
8
administrative remedies for his racial discrimination claim. But he seeks to come within
an exception permitting recovery on a claim that was " 'like or reasonably related to' " the
allegations in the administrative complaint. (Okoli, supra, 36 Cal.App.4th at p. 1614.)
Under this exception, the exhaustion requirement is satisfied if the two claims are
sufficiently related such that the administrative investigation would "necessarily uncover"
the later claim in an investigation of the charged incident. (Id. at p. 1615; see Nazir v.
United Airlines, Inc. (2009) 178 Cal.App.4th 243, 266-269; Baker v. Children's Hospital
Medical Center (1989) 209 Cal.App.3d 1057, 1065.) However, this exception applies
only if this relationship requirement is satisfied. " '[W]hen the difference between the
charge and the complaint is a matter of adding an entirely new basis for the alleged
discrimination,' " the court has no jurisdiction to consider the newly alleged claim.
(Okoli, supra, 36 Cal.App.4th at p. 1615.)
Griffin's racial discrimination claim does not fall within the " 'like or reasonably
related' " exception. (Okoli, supra, 36 Cal.App.4th at p. 1614, italics omitted.) There is
no basis for concluding that his retaliation and sexual harassment claims were connected
to his current racial discrimination claims. In the administrative complaint, Griffin did
not identify his race and did not state or suggest that he believed the company treated him
differently because of his race. Instead, the narrative description focuses on his belief
that he has been treated unfairly because he has spoken out on various subjects, none
having anything to do with his race.
On this record, the exception is inapplicable. (See Okoli, supra, 36 Cal.App.4th at
p. 1615 [" 'complaint alleging race discrimination is neither "like or related to" nor likely
9
to be discovered in a "reasonable" investigation of a charge of sex discrimination' "];
Martin, supra, 29 Cal.App.4th at pp. 1725, 1727 [exhaustion doctrine precluded gender
discrimination, harassment, and retaliation claims when DFEH claim alleged only age
discrimination]; Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1123 [plaintiff
could not pursue FEHA claim for age harassment because DFEH complaint included
only gender discrimination allegations]; see also Rodriguez v. Airborne Express (9th Cir.
2001) 265 F.3d 890, 897; Stallcop v. Kaiser Foundations Hospitals (9th Cir. 1987) 820
F.2d 1044, 1050-1051.)
Griffin's reliance on Sandhu v. Lockheed Missiles & Space Co. (1994) 26
Cal.App.4th 846 (Sandhu) is misplaced. In Sandhu, the plaintiff alleged in his
administrative complaint that he was treated differently from other, " 'non-Asian' "
employees, and checked only "race" as the cause of discrimination. (Id. at pp. 849, 850.)
In his superior court complaint, the plaintiff alleged racial discrimination and described
himself as an " 'East Indian.' " (Id. at p. 849.) However, the trial court granted a
demurrer based on evidence that a person from India is " 'by definition . . . [a]
Caucasian' " and thus cannot recover for race discrimination. (Id. at pp. 850, 856.) In his
amended complaint, the plaintiff alleged he was " 'an East Indian male whose national
origin is Punjab, India . . .' " and alleged discrimination based on this national origin. (Id.
at p. 850.) The court then granted a demurrer because the plaintiff identified racial
discrimination and not "national origin" discrimination in his administrative complaint.
(Ibid.)
10
The Sandhu court reversed. After a lengthy discussion on the analytical
difficulties in differentiating between race and national origin, the court concluded:
"Discriminators . . . may indeed be 'poor anthropologists' . . . ; any scientific definition of
race has little to do with the realities of racial discrimination. Sandhu alleged both in his
administrative charge and in his complaints that he was treated differently from other,
'non-Asian' Lockheed employees. Like other plaintiffs whose ancestry, descent and
national origin are all intimately related, . . . Sandhu may not and need not be aware of
the precise basis of Lockheed's disparate treatment of him: whether it was his accent, his
skin color, his ancestry or his nationality. . . . Sandhu's allegation that he was subject to a
discriminatory animus based on his membership in a group which is perceived as distinct
when measured against other Lockheed employees, and which is not based on his
birthplace alone, is sufficient to make out a cognizable claim for racial discrimination
under FEHA." (Sandhu, supra, 26 Cal.App.4th at pp. 857-858.)
This case is different. Sexual harassment and retaliation for complaining about the
employer's acts unrelated to race are not "intimately related" to claims of racial
discrimination. Griffin charged specific conduct in his administrative complaint
involving sexual harassment and retaliation (and elaborated on this conduct in his
narrative description) and there is no evidence that he merely mistakenly checked the
wrong box. He now seeks to litigate other, dissimilar claims that he omitted from his
administrative complaint. This does not come within the exception to the general rule.
(See Martin, supra, 29 Cal.App.4th at p. 1724.)
11
We also find unhelpful Griffin's focus on the trial court's statement in its written
order that Quest's due process rights were violated by Griffin's failure to exhaust his
administrative remedies. We review the summary judgment de novo and thus we
examine the court's ruling not its rationale. (Coral Construction, Inc. v. City and County
of San Francisco (2010) 50 Cal.4th 315, 336.) The court's ruling was correct.
C. Griffin Proffered No Evidence To Support Racial Discrimination Claim
Although we need not reach the issue, we additionally find the court properly
granted summary judgment on the racial discrimination claim because Quest met its
summary judgment burden to show Griffin lacks evidence showing he was discriminated
against on the basis of race, and Griffin did not meet his burden to proffer facts
supporting this claim.
In analyzing a FEHA claim, we apply the burden-shifting analysis set forth in
McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. (See Yanowitz v. L'Oreal USA,
Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz); Guz v. Bechtel Nat., Inc. (2000) 24 Cal.4th
317, 354 (Guz).) Under this test, (1) the plaintiff must set forth sufficient evidence to
establish a prima facie case of discrimination or retaliation; (2) the employer must then
articulate a legitimate, nondiscriminatory reason for the adverse employment action; and
(3) the burden then shifts back to the employee to show the challenged action in fact
resulted from discrimination or retaliation. (See Yanowitz, supra, 36 Cal.4th at p. 1042;
Guz, supra, 24 Cal.4th at pp. 354-356.)
An employer is entitled to summary judgment under the McDonnell Douglas test
if the employer "presents admissible evidence either that one or more of plaintiff's prima
12
facie elements is lacking, or that the adverse employment action was based on legitimate,
[nonretaliatory or nondiscriminatory] factors . . . unless the plaintiff produces admissible
evidence which raises a triable issue of fact material to the defendant's showing."
(Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203.)
On appeal, Griffin does not challenge that Quest satisfied its initial burden to show
proper nondiscriminatory reasons for its actions. However, he argues he met his burden
to show racial discrimination based on his assertions that Quest enforced various
company rules against him and not against Caucasian employees, including: (1) the rule
prohibiting route service employees from using the break room to take their breaks; (2)
the requirement that route driver employees wear khaki-colored pants; and (3) the rules
against hugging and/or touching other employees. These arguments are unavailing.
First, with respect to the break room incident, Griffin testified that he was told by
supervisor Longoria that he could not use the break room to take a break at the end of his
shift. However, the evidence established (and Griffin conceded) that Longoria's
statement was consistent with Quest's general policy that route couriers were required to
take breaks during the course of their daily routes and not at the end of their shifts, and
this policy was implemented to comply with California wage and hour laws. Griffin
nonetheless argues that Longoria's statement to him was "racist" based on his deposition
testimony that he "had a 1967 lunch counter flashback when [he] heard [Longoria say]
that" and "All I could assume was either it was [based] on my sex or on my race." He
also testified at his deposition that he has "seen" other couriers (of unspecified races) who
"take a break before they clock out."
13
This evidence is insufficient to show Quest discriminated against Griffin based on
his race. Griffin's deposition testimony does not support an inference that Quest enforced
its break policies only against African-American employees or that the application of the
policy against Griffin was motivated by Griffin's race. Griffin's unsupported assumptions
that he believed Longoria's statement was racially motivated are not sufficient to create a
triable issue of fact. "[A] party 'cannot avoid summary judgment by asserting facts based
on mere speculation and conjecture, but instead must produce admissible evidence raising
a triable issue of fact. [Citation.]' [Citation.]" (Dollinger DeAnza Associates v. Chicago
Title Ins. Co. (2011) 199 Cal.App.4th 1132, 1144-1145.)
Second, Griffin's discussion of Quest's uniform policy does not show racial
discrimination. Griffin argues the uniform policy was discriminatory because it was
applied only to him and not to Caucasian employees. In support, Griffin relies on
photographs of two or three individuals wearing black pants or khaki or black shorts. In
his declaration, Griffin stated that these photographs were taken in 2012 (after the lawsuit
was filed) and "depict his fellow Quest employees violating Quest uniform policies." He
further stated: "Upon information and belief, these individuals were not disciplined in
any manner. Uniform violations occur everyday."
This evidence does not reflect that Quest discriminated against Griffin based on
his race. There is no evidence these employees were in the same job classification as
Griffin, that they were not disciplined for the uniform violations, or that the relevant
supervisors were aware of the uniform violations. Griffin's assertions that these
individuals were not cautioned about the uniform policy were made "upon information
14
and belief," and thus were insufficient to raise a triable issue of fact. (See Lopez v.
University Partners (1997) 54 Cal.App.4th 1117, 1124.) Additionally, as discussed
below, the fact that Griffin was once told by his supervisor to comply with the uniform
policy does not show an "adverse employment action" and thus cannot support a racial
discrimination claim under the FEHA.
Third, Quest's enforcement of its sexual harassment policy does not support
Griffin's claim that he was discriminated against based on his race. The undisputed
evidence shows Quest's sexual harassment policy prohibits offensive conduct, including
unwanted touching. It was further undisputed that a female employee made a written
complaint that Griffin put his arm around her and "plant[ed] a kiss next to [her] lips," and
that she "felt very uncomfortable!" During the investigation of this claim, Griffin was
temporarily suspended with pay. He thereafter admitted to "at least 17 physical
interactions (hugs and/or kisses) with co-workers within the last two weeks." Griffin was
counseled to refrain from this behavior and a final written warning was placed in his
personnel file. The evidence also showed that he had engaged in hugging incidents in the
past, and had been warned not to repeat this behavior.
In his appellate brief, Griffin argues that the discipline reflected racial
discrimination because "Other non-African American employees are not reprimanded
when they hug other employees . . . ." In support, Griffin refers to his deposition
testimony in which he described an incident in which "two Hispanic males walk[ed] up to
Anita Smith [Longoria's supervisor] and g[a]ve her a hug and a kiss on the cheek." He
also cites his testimony in which he said he has observed other employees violating the
15
sexual harassment policy "on a daily basis" and he believes these employees "are not
being written up . . . ." (Underscoring omitted.) He said he felt he was "being held to a
higher level of standards than my co-workers are." (Underscoring omitted.)
Griffin's testimony was insufficient to create an inference that Quest's action was
motivated by Griffin's race. Quest provided legitimate grounds for its disciplinary action:
a coemployee's written complaint documenting Griffin's violation of the company's
sexual harassment policy and Griffin's admissions that he frequently hugged and kissed
female employees. Even assuming it is true that other employees frequently touched
each other, there was no evidence that this conduct reflected unwanted conduct or that
any employee had complained about the conduct. Thus, Griffin was not in the same
position as the other workers with respect to the enforcement of the sexual harassment
policy. Moreover, there was no evidence that these other employees were not counseled
or did not receive warnings or discipline for violating the no-touching policy. Griffin's
subjective belief that he was not treated equally regarding the sexual harassment policy
was unsupported by the evidentiary record. Speculation does not constitute sufficient
evidence to overcome a motion for summary judgment on a racial discrimination cause of
action. (See Horn v. Cushman & Wakefield Western (1999) 72 Cal.App.4th 798, 807-
808, 817; Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1118.)
Griffin's additional claimed examples of racial discrimination—not being allowed
to "go in the front entrance of buildings," not provided "stretching breaks," and not
provided legally required meal and rest breaks—were either not raised below as a basis
for racial discrimination and/or are not supported by the evidentiary record. Further,
16
Griffin's reliance on a hearsay remark attributed to Longoria in which she referred to
" 'my people' " in a conversation with another employee about an unrelated matter is
insufficient to show any form of discrimination. On the record before us, there is no
reasonable basis for concluding that remark had anything to do with Griffin or his race.
The court properly granted summary judgment on the racial discrimination claim.
III. Retaliation Cause of Action
A. Background
In his retaliation cause of action, Griffin alleged Quest retaliated against him after
he complained about Longoria's "unlawful sexual harassment" during Quest's
investigation of his own sexual harassment conduct. He also alleged that Quest retaliated
against him for complaining about overtime law violations, the failure to accommodate
his physical disability, and not allowing him to use the break room.
In moving for summary judgment on the retaliation claim, Quest argued there was
no evidence that it retaliated against Griffin after he engaged in the claimed protected
conduct, nor was there any evidence that Griffin suffered an adverse employment action.
In support, Quest presented evidence that the discipline imposed on Griffin for his sexual
harassment conduct predated his alleged complaints about Longoria's conduct. Quest
also presented evidence showing Griffin was not terminated, demoted, or given less
responsibilities or benefits during the relevant times. According to Quest's evidence, the
only tangible adverse action was a denial of a pay raise in 2009, but Quest produced facts
showing this denial was based on Griffin's documented act of misrepresenting a hospital
pickup time.
17
In response, Griffin did not discuss or identify the protected conduct upon which
he was relying for his retaliation claim. Instead, he focused on the adverse employment
action issue, and asserted that he was entitled to recover for various adverse actions,
including his difficult work schedule, discipline for his sexual harassment of other
employees, and enforcement of the dress code against him.
In granting summary judgment on this claim, the court found the record did not
support that Griffin had engaged in protected activity or that he had suffered an adverse
employment action from any such activity.
B. Summary of Applicable Law
The FEHA makes it unlawful for an employer to "discharge, expel, or otherwise
discriminate against any person because the person has opposed any practices forbidden
under [the FEHA] or because the person has filed a complaint, testified, or assisted in any
proceeding under [the FEHA]." (§ 12940, subd. (h).) To prove retaliation under the
FEHA, an employee "must prove he engaged in protected activity; the employer took an
adverse employment action against him; the protected activity was a motivating reason
for the adverse action; and the employers' conduct caused harm to the plaintiff." (Lewis
v. City of Benecia (2014) 224 Cal.App.4th 1519, 1533.) We apply the McDonnell
Douglas burden shifting analysis in evaluating Quest's summary judgment motion on the
retaliation claim. (See Yanowitz, supra, 36 Cal.4th at p. 1042.)
An employment action is adverse if it "materially affects the terms and conditions
of employment" under the totality of the circumstances. (Yanowitz, supra, 36 Cal.4th at
p. 1036.) In determining whether an action is sufficiently material, the court should
18
consider "plaintiff's allegations collectively under a totality-of-the-circumstances
approach." (Id. at p. 1052, fn. 11.) "Minor or relatively trivial adverse actions" do not
suffice (id. at p. 1054), but "the collective impact of a series of retaliatory acts may
constitute sufficient adverse employment action even if some of the acts individually
would not." (Wysinger v. Automobile Club of Southern California (2007) 157
Cal.App.4th 413, 423.)
C. Analysis
In contending the court erred in granting summary judgment on the retaliation
claim, Griffin does not challenge that Quest presented legitimate nonretaliatory reasons
for its actions or cite to any evidence showing he engaged in any protected activity that
triggered a retaliatory action. Griffin has thus failed to meet his appellate burden to
establish error. To recover on a FEHA retaliation claim, the plaintiff must show he
engaged in protected activity and a nexus between the protected activity and the adverse
employment action. (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1258-1259.)
Additionally, Griffin does not direct us to any facts showing he suffered an
adverse employment action in retaliation for his protected actions. In his appellate briefs,
Griffin suggests various actions that he contends were retaliatory and "adverse,"
including: (1) discipline for wearing shorts in violation of the company policy; (2) the
assignment of a vehicle that "aggravated [Griffin's] hip injury"; and (3) the assignment of
a "route that could not be completed in the allotted time without speeding and skipping
lunch breaks." However, none of these assertions show a viable FEHA retaliation claim.
19
First, with respect to the uniform issue, Quest presented evidence that Griffin was
told to comply with Quest's clothing policy, and Griffin presented no evidence showing
this instruction was in retaliation for protected conduct. Further, the only evidence of any
discipline imposed was his deposition testimony that his supervisor told him "That's not
allowed." This statement does not show a material adverse effect on the terms and
conditions of Griffin's employment sufficient to support his FEHA retaliation claim. (See
Yanowitz, supra, 36 Cal.4th at p. 1036.)
Second, in support of his assertion that Quest assigned him a vehicle that
"aggravated" his hip injury, Griffin cites to pages 3-39 of his deposition testimony lodged
in opposition to the summary judgment motion. The only relevant portion of this
testimony is on page 12 in which Griffin responds to an unspecified question (the
question is not part of the deposition excerpt), stating:
"And Leon was telling me about how bad his vehicle was and how
terribly it drove. And I said, 'Well did you ask Aime [Longoria] for
a new vehicle?' And at that time our fleet was starting to get
replaced. We had Toyota Tacoma pickup trucks, and they were
starting to give us Dodge Caravans. And he said he tried to ask her
to get another one, but she said that, 'I have to take care of my
people first.' And I said, 'Her people?' "
This evidence is insufficient to show Quest's assignment of a vehicle was a retaliatory
action for his engaging in protected conduct and/or that it affected the terms and
conditions of Griffin's employment.
Third, there is no evidence that Griffin's assignment of a route that allegedly could
not be completed in the allotted time was in response to Griffin's engaging in protected
activities. In support of this assertion, Griffin cites to his deposition testimony that he
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"had to drive like a maniac" and skip his break times to satisfy the employer pickup/drop-
off requirements. Even assuming this testimony was true, the evidence is insufficient to
show Quest gave him that route in retaliation for his engaging in an unspecified protected
activity.
The court properly granted summary judgment on Griffin's retaliation cause of
action.
IV. Negligence
In his negligence claim, Griffin alleged that Quest breached a duty of care by
failing to: (1) correctly calculate Griffin's overtime pay as required by law; (2) allow
Griffin to use the break room; (3) provide Griffin with a new vehicle after being informed
of his medical condition; (4) address sexual harassment directed towards him; and (5)
take remedial action against Longoria after Griffin gave Quest a list of his grievances
regarding her retaliatory conduct.
The court granted summary judgment on the negligence cause of action on several
grounds, including res judicata (as to the overtime pay issue) and the lack of any showing
of damages with respect to the remaining claims. In his appellate briefs, Griffin argues
the court erred with respect to its ruling on the negligence claim, but does not cite to the
record showing facts supporting that (1) Quest breached duties with respect to any of
those claims; and (2) Griffin suffered damages from the claimed breach of duties. Absent
such supporting facts, Griffin's challenge to the court's ruling on the negligence claim is
without merit. Griffin asserts that he suffered emotional distress damages from Quest's
negligence. However, he does not support these assertions with citations to the record,
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nor does he show a nexus between his claimed emotional distress and an alleged breach
of duty owed to Griffin.
The court did not err in granting summary judgment on the negligence claim.
V. Challenges to the Court's Evidentiary Rulings
Griffin contends the court erred in overruling his objections to nine separate
exhibits proffered by Quest in support of its summary judgment motion.
"Evidence submitted for or against a motion for summary judgment must be
admissible if being offered at trial." (Kincaid v. Kincaid (2011) 197 Cal.App.4th 75, 82.)
Although the California Supreme Court has not decided the matter (Reid v. Google, Inc.
(2010) 50 Cal.4th 512, 535), the majority view is that an appellate court reviews the trial
court's summary judgment evidentiary rulings for abuse of discretion. (Kincaid, supra, at
pp. 82-83.) Additionally, an appellant is required to show that the claimed evidentiary
error was prejudicial. (Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694.)
Applying these principles, we have reviewed each of Griffin's objections and
determine the court properly overruled the objections. First, Griffin challenged several
documents on hearsay grounds, but the court properly overruled those objections because
the documents were not offered for their truth, and instead were offered to show Quest's
notice of complaints made against Griffin. Additionally, the fact that certain pages may
have been missing from some of the proffered documents does not show the documents
were inadmissible. There is no evidentiary rule that a document is inadmissible if it is
not complete. Further, Griffin's objections on the basis of lack of foundation and/or lack
of personal knowledge are not well-founded. On our review of each of these challenged
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documents, there was a sufficient foundation for the admission of the document and the
court had a reasonable ground to overrule the objections. Finally, even assuming there
was error and one or more of these documents should have been excluded, there was no
miscarriage of justice. Even without this evidence, the undisputed facts showed Griffin
did not meet his appellate burden to show the court erred in granting summary judgment.
DISPOSITION
Judgment affirmed. Appellant to bear respondent's costs on appeal.
HALLER, J.
WE CONCUR:
MCCONNELL, P. J.
MCINTYRE, J.
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