Sepulveda v. United Parcel Service CA6

Filed 7/11/16 Sepulveda v. United Parcel Service CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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

SIXTH APPELLATE DISTRICT

EDWARD SEPULVEDA, H038738
(Santa Clara County
Plaintiff and Appellant, Super. Ct. No. 1-09-CV-139823)

v.

UNITED PARCEL SERVICE, INC.,

Defendant and Respondent.

I. INTRODUCTION
This case arises from difficulties plaintiff Edward Sepulveda (Employee) had with
fellow car washer Byron Smith and how their employer, defendant United Parcel Service,
Inc. (Employer), responded to Employee’s complaints about Smith. Employee and Smith
worked together for two periods of time. Smith was already working as a car washer in
Employer’s Sunnyvale facility when Employee was hired in April 1989. They both
worked the night shift until May 2001, when Employee got a job on the day shift to get
away from Smith. According to Employee’s complaint, Smith, an African-American,
heckled and insulted Employee, calling him “ ‘Ed-iot’ ” and harassing him about his race,
calling him a “ ‘stupid’ ” or “ ‘dumb Puerto Rican.’ ”
This action is predicated on what occurred after Employee and Smith began
working together again in October 2006, when Smith got a position on the day shift to
accommodate a medical condition. According to Employee’s complaint, Smith’s
hostilities resumed. According to their supervisors, each one frequently complained to
the supervisors about the other not pulling his own weight on the job, among other things.
They did not work together continuously during this second period of time. After about
two weeks in October 2006, their duties were separated after Smith complained of a
workplace injury. They began working together again in late November 2006, but
Employee went out on medical leave and vacation from December 9, 2006, through
July 9, 2007. Before Employee returned to work, he arranged with Employer to divide
the duties of the three day shift car washers to keep Smith away from him. When Smith
complained about not having enough work, their supervisor, Sam Sisneroz, reviewed the
day shift work and eliminated the third car washer position because there was not enough
work. As the car washer with the least seniority, Employee was bumped off the day shift
and reassigned to the night shift effective August 13, 2007.
Employee worked a day or two on the night shift before taking sick leave from
August 16 through September 10, 2007. The night he returned to work, he got into a
verbal confrontation with Sisneroz that began with a reprimand for Employee running a
stop sign on Employer’s premises. Employee termed Sisneroz an “asshole” during this
confrontation and disobeyed Sisneroz’s repeated instructions not to walk away from him.
After corroborating what Employee said, Sisneroz terminated him on the spot for “gross
insubordination,” as authorized by the applicable collective bargaining agreement.
Employee, representing himself, has alleged that Employer’s true motivation for
eliminating the third car washer position and terminating him was retaliation for charges
he filed with the federal Equal Employment Opportunity Commission (EEOC) in July or
August 2007 asserting that Employer was discriminating against him based on his race
and national origin of Puerto Rico. Employee alleged Employer discriminated against
him by favoring an African-American car washer over him. Employee also alleged that
he endured harassment by Smith and a hostile workplace because Employer failed to curb
Smith’s conduct for fear Smith would play “ ‘the race card.’ ”

2
 The trial court granted Employer’s motion for summary judgment (Code Civ.
Proc., § 437c)1, concluding that there are no triable issues and that Employer has shown
without contradiction: there was no harassment to prevent; any harassment by Smith was
not “repeated, severe and pervasive” and did not create a hostile work environment;
Employer took prompt and reasonable action on Employee’s complaints about Smith;
Employee’s transfer from the day shift to the night shift is not actionable because it “did
not result in any diminution in pay or benefits;” Employer had “legitimate, non-
retaliatory reasons” for transferring Employee to the night shift and terminating his
employment; and the terminating supervisor was unaware of the EEOC charges
Employee had filed. After independently reviewing the available evidence, we will
affirm the judgment. We will also reject Employee’s challenge to the award of costs.
II. TRIAL COURT PROCEEDINGS
A. COMPLAINT AND DEMURRERS
A second amended complaint dated August 13, 2010, alleged the following facts.
Employee is a Puerto Rican male who washed delivery trucks for Employer from
April 1989 until his termination on September 11, 2007. There are two shifts for car
washers. Employee worked the day shift from May 2001 through August 2007. In June
2006, he fell on the job and tore a meniscus. Due to this injury, he preferred working the
day shift because it was warmer outside where he worked.
In December 2006, defendant Byron Smith, an African-American car washer,
“was given Plaintiff’s shift in violation of the Union Contract.” Smith constantly
harassed Employee about his race, making comments “such as ‘You are a stupid Puerto
Rican,’ or ‘You are a dumb Puerto Rican.’ ” Employee complained to his supervisor,
defendant Frank Leong, on a daily basis about the harassment. The only response by

1
Unspecified section references are to the Code of Civil Procedure.

3
management was to reassign Employee to the night shift in August 2007. When Smith
was given Employee’s day shift, Leong told Employee that he did not want Smith to
“ ‘use the race card.’ ” “The managing agents of Defendant [Employer] Frank Leong and
Sam Sisneroz gave Defendant SMITH preferential treatment over Plaintiff due to
Defendant SMITH’s race. These managing agents also informed Plaintiff that it was
their practice to do so because of Defendant SMITH’s race.”
Working outside in the cold aggravated Employee’s knee injury, so his doctor put
him on medical leave from December 8, 2006 through May 30, 2007, while he recovered
from knee surgery. Employee used vacation time to take June 2007 off when his second
child was born. Before returning to work, he met with his manager and his union
representative about his complaints about Smith and it was agreed the two car washers
would stay away from each other in the work yard.
Employee returned to work the first week of July 2007. Smith resumed harassing
Employee, calling him “Ed-iot” across the yard and making race-based insults.
Employee complained to Leong without any response, so Employee filed a charge with
the EEOC on August 16, 2007, and told his supervisors he had done so.
Days after Employee filed his charge, his supervisor, defendant Sam Sisneroz,
conducted a time study on Employee’s work that resulted in Employee being assigned to
the night shift beginning September 9, 2007.
On September 10, 2007, Sisneroz yelled at Employee as he was driving a truck
through the yard, calling him by his first name. Employee asked to be called “Mr.
Sepulveda” and called Sisneroz an “asshole” as Employee walked away from him.
Another manager, defendant Jon Fischer, said he heard what Employee had said.
Sisneroz ordered Employee to come to his office. Employee left to find a shop steward
or union representative and returned when he could not find one. Sisneroz terminated
him on the spot on September 11, 2007. Sisneroz escorted Employee to the company
locker room so he could gather his things and leave.

4
 The second amended complaint purported to state six causes of action arising from
these facts. Employee was subjected to workplace harassment (second cause of action)
and a hostile work environment, including “insult, unwarranted disciplinary actions, work
schedule reassignment, and ultimately termination from his employment based on his
race and national origin” (third cause of action). Employer failed to prevent this
discrimination (fifth cause of action) and in fact aided and abetted it (sixth cause of
action). Employer and its managers retaliated against Employee for filing discrimination
claims by transferring him to the night shift, ostracizing him, and terminating him (first
cause of action). This amounted to a tortious discharge in violation of public policy
(fourth cause of action).
On March 3, 2011, the trial court dismissed the sixth cause of action for aiding and
abetting discrimination.2 On February 27, 2012, the trial court sustained demurrers
without leave to amend by individual defendants Sisneroz, Fischer, and Smith on
multiple grounds including the statute of limitations.
B. MATERIAL FACTS ESTABLISHED BY SUMMARY JUDGMENT MOTION
Employer filed a motion for summary judgment or adjudication dated March 2,
2012, supported by declarations, depositions, and a request for judicial notice. The
hearing was originally scheduled for June 7, 2012. On May 30, 2012, in response to
Employee’s ex parte application, the court continued the hearing to June 28, 2012, giving
Employee until June 14 to file an opposition and Employer until June 22 for a reply. On
June 14 Employee filed an opposition stating in part, “Realistically speaking, [Employee]
cannot defeat [Employer’s] motion for summary judgment” because the court did not

2
Employer’s brief asserts that the court sustained a demurrer on January 11, 2011,
to Employee’s sixth cause of action for aiding and abetting discrimination. No such
order appears in the appendices, but the judgment filed July 17, 2012 recites that the sixth
cause of action was dismissed on March 3, 2011.

5
give Employee, who was representing himself, enough time to respond. Employee’s
opposition was based on his own declaration and others, a separate statement of facts, and
27 documents attached as exhibits. Neither side’s original separate statement appears in
the appendices on appeal, but there is a comprehensive “reply separate statement” by
Employer summarizing its original statement of 109 undisputed material facts,
Employee’s responses to them, and Employer’s replies. (Capitalization omitted.) The
same document also provided Employer’s responses to Employee’s declaration.
Employer also filed objections to the documents attached to the opposition and the
declarations by Tony Soto, Chuck Andrew, Russ Ford, and Jim Clements, as Employee
had not previously disclosed them as witnesses during discovery in violation of a court
order. The trial court did not expressly rule on these objections in granting summary
judgment.
Our recital of facts is taken from Employee’s deposition of April 19, 2011, except
as otherwise indicated.
1. Employee’s working relationship with Byron Smith
According to Byron’s Smith’s declaration, Employer hired him in July 1980 as a
car washer to clean and fuel the tractors attached to the feeder trailers. He worked the
night shift at the Sunnyvale facility until he returned from a medical leave of absence on
October 2, 2006, when he was put on the day shift to accommodate his medical
limitations.
According to Employee’s deposition, Employer hired Employee as a part-time car
washer in April 1989. After working mostly in the Sunnyvale facility for about four
years, Employee became a full-time car washer. He worked the night shift with Smith
until he transferred to the day shift in May 2001. When they both worked the night shift,
Smith harassed Employee by saying he was a “ ‘stupid Puerto Rican’ ” and had described
Puerto Ricans as the offspring of blacks and Mexicans. Employee complained to a
supervisor of the car washers who said he would talk to Smith about it. Employee

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declared that he sought the day shift job in 2001 in order to get away from Smith after
Smith had tried to get him fired.
Also according to Employee’s deposition, he and Smith worked together on the
day shift for the first half of October 2006. Smith was loud and obnoxious. “The very
first day” Employee “walked in to the locker room,” Smith called Employee
“Precious[.]” Employee “quickly shut him down,” telling Smith he was not going to
engage in “a war of words.” Smith’s comments “pretty much subsided after that.”
Employee avoided Smith as much as he could. Smith was supposed to direct his job
complaints to Employee as shop steward and he did so. When Smith complained about
the work and proposed switching jobs, Employee told Smith he had the job he had asked
for.
Smith renewed his request for another position when he had another injury shortly
after he came back in October 2006. Employer asked Employee and the other day car
washer, Tony Soto, to accommodate Smith, and “[a]fter much debate with the union and
the company,” they agreed to rearrange their duties so that Smith would do Soto’s job,
which was “the tractor line-up.” Employee agreed to the change in mid-October 2006
partly so he would not be working with Smith. Smith cleaned tractor cabs and Employee
cleaned out the trailers.
In November 2006 Smith began complaining about his new position, saying he
was being mistreated because he is black. “Everything ‒ anything that transpired around
there, he wasn’t accommodated because he was black.” At the end of November 2006
Smith got medical clearance to resume his earlier day position. Employee spoke with
Frank Leong, Employer’s business manager, about it. Employer favored Smith resuming
his position, so Employee and Soto agreed to return to their original duties on the day
shift. Smith and Employee worked side-by-side cleaning trash and pallets out of large
feeder trailers until Employee went out on medical leave on December 9, 2006, due to a
knee injury.

7
 Once Smith was reinstated in his old position, he said he was “ ‘the boss around
here’ ” and the “ ‘new sheriff in town.’ ” He said they could not do anything because he is
a black man. Smith called Employee “ ‘Ediot.’ ” Smith knew how to push Employee’s
buttons. Before Employee left work on medical leave, “I don’t believe, at that time, if I
can ‒ if I recall correctly, that he actually said any specific racial to me, but that’s when I
went to Frank and complained about him just constantly badgering me with this ‒ with
his rhetoric.” He told Leong it was a “hostile work environment” and he did not want to
hear from Smith or talk to him. Leong said it was a hostile environment if there was
name-calling. Employee complained to his union about the position switch. He could
not recall whether that phone call ever turned into a formal written grievance.
Employee was out on medical leave until the end of May 2007, and then he took
vacation that lasted until July 9, 2007. While out on leave, he made a successful bid to
return to the day shift, knowing Smith was on that shift. Before returning to work, in
June 2007 Employee and union representative Chuck Andrew spoke with Leong about
Employee’s difficulty in working with Smith. Employee said it was a “hostile work
environment” because Smith seemed to enjoy bothering him. He did not want to
continue hearing Smith say the company could not do anything to him because Smith was
black. Employee told Leong they were discriminating against him because he is not
black.3 Leong agreed to Employee’s proposal for a division of labor that would separate
Employee and Smith “geographically in the yard.”

3
Employee’s brief purports to quote Chuck Andrew declaring that “At this
meeting Leong stated several times that he was reluctant to do anything to Smith for fear
he would use the race card.” No such language appears in the cited declaration.
Moreover, in the trial court Employer objected to reliance on the Andrew declaration,
among others, because the declarants had not been named as witnesses in violation of a
discovery order. Employer also objected to the hearsay basis of this declaration. The
trial court did not rule on these objections.

8
 Leong has declared that Smith and Employee had a contentious relationship and
frequently accused each other of being lazy, hiding equipment, and not performing their
jobs correctly. Each was a high maintenance employee with a bad attitude who worked
as little as possible. Leong agreed with Employee to restructure the duties of the day car
washers to keep them apart when Employee returned to work.
When Employee first returned to work on July 9, 2007, he and Smith kept their
distance. After a week or two, Smith began doing Employee’s work and using his
equipment. Employee complained to Leong, who told him to keep his mouth shut and do
his job. Leong apparently reprimanded Smith about coming into Employee’s work area.
Leong declared that the new division of labor did not resolve the issues between
Smith and Employee. Smith complained about not having enough work. Employee
complained about Smith entering his work area. Leong asked Employee to stop
complaining and focus on his job and told Smith to keep out of Employee’s work area
except for getting supplies.
Smith declared that he complained to Leong and feeder manager Sam Sisneroz
that the new division of labor left him without enough work. He did enter Employee’s
work area one day to retrieve supplies and, after Employee complained, Leong told him
to stay in his own area.
Leong arranged a meeting on July 19, 2007, involving Employee, Smith, Leonard,
Shop Steward, Valdez, and Temmet Oliver, Jr., a feeder supervisor trainer, to address
Employee’s complaints about Smith coming into his work area. The morning of July 19,
Smith entered Employee’s work area after Leong’s reprimand and gave Employee “dirty
looks, menacing looks, and then just started to walk down and start writing trailer
numbers and taking notes about the work that was done.” Employee went to Leong and
asked if he had any control over Smith. Leong said he had spoken to him and they were
having a meeting that afternoon. Employee told Leong that he was not going to “another
worthless meeting,” that he was going to file a complaint with the EEOC about a hostile

9
work environment and racial discrimination. Employee took sick leave and did not
attend the meeting with Oliver on July 19. Employee recalled going to the EEOC that
day and filing a handwritten charge, though he was unable to find a copy of it before his
deposition.4
On July 23, 2007, Oliver spoke with Employee and got his version of the events.
Oliver said that he and Leong had again instructed Smith to stay away from Employee
and his work area. Employee recalled telling Oliver he had filed an EEOC charge. In a
written summary of the events dated July 24, 2007, Oliver recalled Employee telling him
on July 23, 2007, “now I’m going to the EEOC, and my Law[y]er,” and Smith telling him
the same day that he was filing an EEOC charge. Oliver suspected that Smith had
overheard his conversation with Employee.5 According to Employee, Tony Soto, who
attended the meeting on July 19, confirmed that Smith was told to do his job and not talk
to the other car washers.

4
Apparently Employee located the documents after his deposition in April 2011.
A completed intake pre-screen form and questionnaire by the EEOC dated July 19, 2007
are Exhibit I in his appendix. The questionnaire states in part: “If you do not wish this
questionnaire to be considered a charge, please check the following box.” The box
indicating the questionnaire is for “informational purposes only” is checked. Employee
complained that Employer had double standards, one for African-American employees
and another for everyone else.
5
In the trial court, Employer objected to Employee’s reliance on 27
unauthenticated documents attached as exhibits to his opposition. As of the time of
Employer’s written objections, filed June 22, 2012, Employer had only received 14 of the
27 documents, so its ability to object was limited. As the trial court did not expressly rule
on Employer’s evidentiary objections, they have been preserved for appeal, and
Employer has renewed them. (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 533.)
Employer now objects to the Oliver letter or memo in part as unauthenticated, hearsay,
irrelevant, and lacking foundation. We will overlook the technical objections and accept
the letter as authentic. Even accepting the Oliver document as authentic, it does not help
Employee (as we discuss herein).

10
 Employee believed he told Jon Fischer about filing an EEOC charge the day after
he spoke with Oliver. Fischer, a computer dispatch supervisor who supervised the night
car washers, has declared that he did not hear from Employee or anyone else that
Employee had filed an EEOC complaint until after Employee was terminated.
Sisneroz has declared that Employee and Smith had a contentious relationship and
got into several yelling matches. Each accused the other of being lazy, hiding equipment,
and not performing their jobs correctly. He did not hear either one make comments
related to race or national origin. Employee did not complain to Sisneroz about
harassment based on race or national origin.
Smith declared that he had a contentious relationship with Employee. They got
into yelling matches. He denied making comments about Employee’s race or national
origin.
2. Employee’s shift change and termination
At the end of July 2007, a supervisor did a time study of Employee, which led to
the elimination of the third day car washer position. Smith and Soto each had more
seniority than Employee, so Employee was the one who was reassigned.
Sisneroz declared that he looked into the day shift car washer duties after Smith
complained there was not enough work. He heard from Employer’s efficiency experts
that two car washers were enough for the day shift, so he and Jim Peterson, the
transportation division manager, decided to eliminate the third position effective August
13, 2007. There have been two day shift car wash positions ever since. Patrick Taylor is
an industrial planning engineer for Employer who recommended to Sisneroz based on a
January 2007 study that two day car washers were more than enough to complete the
11.14 hours of work required from the day car wash shift. His report was attached to his
declaration. Peterson declared that when he and Sisneroz jointly decided to eliminate the
third day car wash position, he was unaware that Employee had filed discrimination,
harassment, or retaliation charges with any state or federal agency. Employee has

11
declared that “Peterson was never notified by anyone of any complaint ever.” “Peterson
was not involved in day to day operations of the Day Car Wash.”
On August 9, 2007, the night car wash lead, Craig Kirkland, told Employee that
his day shift position was being eliminated, so he was assigned to the night shift as of
August 13, 2007.
Just before beginning the night shift on August 13, 2007, Employee called
Employer’s compliance hotline to complain about the preferential treatment Smith had
received from Employer. According to a contemporary report of Employee’s call,
Employee said: Smith complained constantly, had a bad attitude, and worked harder at
getting out of work than working; when Smith complained that certain work assignments
showed discrimination against him, management would back down and give the work to
other washers; management once let Smith return to his old job after he did not like the
new job he had asked for; Employee had complained to management with no results.
Employee did not mention Smith harassing him based on race or national origin.
Employee took sick leave from August 16 to September 10, 2007. On August 16,
2007, Employee filed a revised discrimination charge with the EEOC. He alleged
discrimination based on race and national origin and also retaliation. The revised
charged, which was in evidence, alleged that between October 2006 and December 8,
2006, Employee “was frequently subjected to racial comments and derogatory comments
about my national origin, Puerto Rican, by my co-worker, Byron Smith, African
American.” “I have complained to Frank Leong, Asian, Vietnamese, on many
occasions[] about the harassment but to no avail.”6 After returning to work from medical

6
Employee declared that his court complaint “only listed racially charged slurs
that Byron Smith had directed at me, which were made after October, 2006” because he
had not notified Employer of Smith’s harassment before. In fact, “Smith made numerous
racial slurs to me above and beyond ‘Stupid Puerto Rican’ and ‘Dumb Puerto Rican.’ ” “I
(Continued)

12
leave on July 9, 2007, he complained to Leong on July 19, 2007, about continued
harassment by Smith with no action taken. His day job was eliminated and he was
transferred to the night shift.7
While Employee was out on sick leave, he was contacted by Curtis White,
Employer’s Human Resources Operation Manager, regarding his hotline complaint.
Employee told White he had filed an EEOC charge.8
Employee returned to work the night shift on September 10, 2007 and was
terminated before his shift ended on September 11.
On September 12, 2007, Sam Sisneroz sent an email to Jim Peterson recording his
version of the events leading to Employee’s termination. Sisneroz’s contemporaneous
recollection follows except as indicated.

specifically recall Byron Smith making comments to me about my Race in November
and December, 2006.” “In December of 2006, I complained about Smith’s harassment
on the basis of race to the management at UPS.” “Byron Smith heckled [m]e, called me
names, invaded my personal space, and directly racially charged slurs at me despite the
fact that he was ordered several times to stay away from me and not talk with me.”
(Emphasis omitted.)
Leong declared that he never heard Smith or Employee make comments related to
race or national origin. Employee did not complain to Leong about Smith harassing him
based on race or national origin. Leong was not informed that Employee had filed an
EEOC charge until after Employee was terminated.
7
A written notice of Employee’s discrimination charge dated August 21, 2007,
was sent by the EEOC to a human resources manager for Employer in San Francisco. It
required a response by September 21, 2007.
On August 20, 2007, on behalf of Employee’s union, Chuck Andrew sent a letter
to a labor manager for Employer in San Francisco providing notice of filing a grievance
alleging that UPS management had discriminated against Employee. The outcome of this
grievance does not appear in the record and was not discussed in Andrew’s declaration.
8
White has declared that he investigated Employee’s complaints and found them
unsubstantiated. Employee did not tell him about filing an EEOC charge and White did
not discuss this topic with Sisneroz or Peterson.

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 Just after midnight on September 11, Sisneroz saw Employee drive at excessive
speed in the yard right through a stop sign at a pedestrian crosswalk. Sisneroz called out
to Employee, who was then walking away from him. Employee turned and approached
him with raised arm and pointed finger, insisting that Sisneroz show him respect by
calling him “ ‘Mr. Sepulveda.’ ” Sisneroz called him Ed, told him to calm down, and
instructed him to obey the speed limit and stop signs. Employee walked away, yelling
“ ‘Have a nice night Sam.’ ” Sisneroz wished Employee to have a nice night. Employee
said, “ ‘I will[,] asshole.’ ” (Emphasis omitted.)9 Supervisor Jon Fischer confirmed that
he heard what Employee said, so they walked after him and told him to come to
Sisneroz’s office.
As they walked to Sisneroz’s office, Fischer learned that Employee was the shop
steward. Sisneroz had car washer Rich McCann get lead car washer Kirkland. Employee
declined to enter the office, saying it was too small. Sisneroz made a phone call to
Peterson, his supervisor. McCann and Kirkland left before Sisneroz returned. Employee
started to walk away. Sisneroz instructed him to stay where he was, saying he would get
the other car washers. Employee continued walking away, though Sisneroz told him
three times to stay. According to Employee’s deposition, he told Sisneroz he was going
to get a shop steward and walked away, while Sisneroz told him three times to stand
where he was.

9
According to Employee’s deposition, he did run the stop sign. Sisneroz called
his first name in an agitated manner, got his attention, walked up to him, and told him to
obey the stop signs. “[T]he whole thing blew up” when Sisneroz continued to call him
“ ‘Ed’ ” after he asked to be called “ ‘Mr. Sepulveda.’ ” After they told each other to
have a nice night, using each other’s first names, Employee said, “ ‘Oh, so you want to be
an asshole about this? All right.’ ” According to Employee’s declaration, “I never called
Sam Sisneroz an asshole. I did mutter the term asshole as I walked away from Ed
Sepulveda [sic].”

14
 Sisneroz had car washer Greg Ojeda get the other two washers. They said they
had left because Employee, their shop steward, had told them to. They assembled in
another office. Fischer and Ojeda said that Employee had called Sisneroz an asshole.
Employee denied it. Sisneroz told Employee he was terminating him for gross
insubordination and refusal to follow instructions. They escorted Employee to his locker
and had him gather his possessions and leave the premises.
Sisneroz later declared he terminated Employee solely for insubordination. He
was unaware that Employee had filed any complaints about discrimination, harassment,
or retaliation with any state or federal agencies.10 According to the collective bargaining
agreement between Employer and Employee’s union, “Any employee may be discharged
or suspended for just cause” in accordance with the procedures specified in the
agreement. Reasons for immediate discharge include “theft, intoxication, use, sale or
possession of illegal narcotics and gross insubordination, each having occurred on the
job … .”
On September 26, 2007, Employee signed a second discrimination charge with the
EEOC under penalty of perjury. At his deposition, Employee conceded it was full of
inaccurate statements, such as: his original EEOC charge was filed on July 19, 2007, not

10
Employee has declared, “I personally informed Sam Sisneroz about my filing
of the EEOC after I had filed the complaint, but before I was terminated.” However, at
his deposition, when Employee was asked “did you tell anyone that you had filed that
complaint?” he answered, “I told Frank the day of, and I came back and I believe I told
Temmet. I told White.” When asked, “Who at UPS management did you tell you filed
the charge?” he answered, “Temmet, Jon Fischer, Frank.” He did not name Sisneroz
either time.
Employee’s declaration also claims he notified Chuck Andrews, the union
business agent, and Bill Cooper, a corporate labor manager in Atlanta, of his EEOC
complaint.

15
August 16, 2007; Sisneroz notified him well before August 24, 2007 that his day shift
position was eliminated; he went out on sick leave on August 16, not August 27, 2007.
The trial court granted Employer’s request for judicial notice of the
December 2008 outcome of a grievance that Employee’s union filed over his termination.
The arbitrator decided that “[t]he discharge decision in this case was a snap decision
which requires, and has been given, careful scrutiny but this record requires that it be
upheld as for just cause. The Grievant [w]as a long-term employee and a Steward who
either knew or should have known of the consequences of his actions could result in his
discharge notwithstanding his longevity.”11 The San Francisco Superior Court granted
Employer’s petition to confirm this award on February 15, 2012.
III. ANALYSIS
A. STANDARD OF REVIEW
“A defendant or cross-defendant [seeking summary judgment] has met his or her
burden of showing that a cause of action has no merit if that party has shown that one or
more elements of the cause of action, even if not separately pleaded, cannot be
established, or that there is a complete defense to that cause of action. Once the
defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or
cross-complainant to show that a triable issue of one or more material facts exists as to
that cause of action or a defense thereto. (§ 437c, subd. (p)(2).) A summary judgment
“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 judgment as a matter of law. In
determining whether the papers show that there is no triable issue as to any material fact
the court shall consider all of the evidence set forth in the papers, except that to which
objections have been made and sustained by the court ... .” (§ 437c, subd. (c).)

11
Employee declared that the arbitrator fell asleep during his testimony.

16
 “Because entitlement to a summary judgment presents questions of law, on appeal
we independently review all the evidence set forth in the motion and opposition except
that to which an objection was expressly sustained.” (McGrory v. Applied Signal
Technology, Inc. (2013) 212 Cal.App.4th 1510, 1522–1523 (McGrory).)
B. EVIDENCE OF HARASSMENT OR A HOSTILE ENVIRONMENT
Most of Employee’s causes of action, the second through fifth, are premised on
Byron Smith’s workplace harassment and Employer’s tolerance of a hostile work
environment.
The California Fair Employment and Housing Act (FEHA) makes it “an unlawful
employment practice” for an employer to discriminate against a person “in compensation
or in terms, conditions, or privileges of employment” because of the person’s “race,
religious creed, color, national origin, ancestry, physical disability, mental disability,
medical condition, genetic information, marital status, sex, gender, gender identity,
gender expression, age, sexual orientation, or military and veteran status … .”
(Gov. Code, § 12940, subd. (a).) It is also an unlawful employment practice for an
employer “to harass an employee” because of the same characteristics. (Id. at
subd. (j)(1).) “Harassment of an employee … shall be unlawful if the entity, or its agents
or supervisors, knows or should have known of this conduct and fails to take immediate
and appropriate corrective action. … An entity shall take all reasonable steps to prevent
harassment from occurring.” (Ibid.) The anti-harassment provisions were added in 1984.
(Stats. 1984, ch. 1754, § 2, pp. 6405–6406.)
Title VII of the federal Civil Rights Act does not expressly prohibit harassment,
but it proscribes “an unlawful employment practice for an employer” “to discriminate
against any individual with respect to his compensation, terms, conditions, or privileges
of employment, because of such individual’s race, color, religion, sex, or national
origin … .” (42 U.S.C.A. § 2000e-2, subd. (a)(1).) Courts have determined that
workplace harassment based on these characteristics is a form of discrimination.

17
(Meritor Sav. Bank, FSB v. Vinson (1986) 477 U.S. 57, 65 (Vinson).) “[A] plaintiff may
establish a violation of Title VII by proving that discrimination based on sex has created
a hostile or abusive work environment.” (Id. at p. 66; see Annot., What Constitutes
Racial Harassment in Employment Violative of Title VII of Civil Rights Act of 1964
(42 U.S.C.A. §§ 2000e et seq.) (1999) 156 A.L.R. Fed. 1.)
“[N]ot all workplace conduct that may be described as ‘harassment’ affects a
‘term, condition, or privilege’ of employment within the meaning of Title VII. (See
Rogers v. EEOC [(5th Cir. 1971) 454 F.2d 234] at 238 (‘mere utterance of an ethnic or
racial epithet which engenders offensive feelings in an employee’ would not affect the
conditions of employment to sufficiently significant degree to violate Title VII);
[citation]. For sexual harassment to be actionable, it must be sufficiently severe or
pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive
working environment.’ ” (Vinson, supra, 477 U.S. at p. 67.)
Despite differences in wording between Title VII and FEHA, both statutory
schemes have the same antidiscrimination objectives and public policy purposes, so
California courts often seek guidance in interpreting FEHA’s prohibition of harassment
from federal decisions. (Lyle v. Warner Bros. Television Productions (2006)
38 Cal.4th 264, 278 (Lyle).)
The elements of a harassment claim have been developed mostly in cases alleging
sexual harassment. Among the elements are that, due to a protected characteristic, the
employee was subject to harassment that was “severe enough or sufficiently pervasive to
alter the conditions of her employment and create a hostile or abusive work
environment.” (Lyle, supra, 38 Cal. 4th at p. 283; italics omitted.) “To be actionable, ‘a
sexually objectionable environment must be both objectively and subjectively offensive,
one that a reasonable person would find hostile or abusive, and one that the victim in fact
did perceive to be so.’ ” (Id. at p. 284.)

18
 “With respect to the pervasiveness of harassment, courts have held an employee
generally cannot recover for harassment that is occasional, isolated, sporadic, or trivial;
rather, the employee must show a concerted pattern of harassment of a repeated, routine,
or a generalized nature. ([Citations]; accord, Smith v. Northwest Financial Acceptance,
Inc. (10th Cir. 1997) 129 F.3d 1408, 1414 [‘isolated incidents of harassment, while
inappropriate and boorish, do not constitute pervasive conduct’].) That is, when the
harassing conduct is not severe in the extreme, more than a few isolated incidents must
have occurred to prove a claim based on working conditions. [Citations.]” (Lyle, supra,
38 Cal.4th at pp. 283–284.)
The same principles apply when alleged harassment is based on race or national
origin. (Etter v. Veriflo Corp. (1998) 67 Cal.App.4th 457, 464–465; Thompson v. City of
Monrovia (2010) 186 Cal.App.4th 860, 877 (Thompson); see Aguilar v. Avis Rent A Car
System, Inc. (1999) 21 Cal.4th 121, 130–131, 137 [plurality].) This court has explained
in Rehmani v. Superior Court (2012) 204 Cal.App.4th 945, 951–952: “Whether the
conduct of the alleged harassers was sufficiently severe or pervasive to create a hostile or
abusive working environment depends on the totality of the circumstances. ‘ “These may
include the frequency of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether it unreasonably
interferes with an employee’s work performance.’’ ’ [Citations.] ‘ “Common sense, and
an appropriate sensibility to social context, will enable courts and juries to distinguish
between simple teasing or roughhousing ... and conduct [that] a reasonable person in the
plaintiff’s position would find severely hostile or abusive.” ’ [Citations.] As in sex-based
harassment claims, ‘[t]he plaintiff must prove that the defendant’s conduct would have
interfered with a reasonable employee’s [fn. omitted] work performance and would have
seriously affected the psychological well-being of a reasonable employee and that [he or
she] was actually offended.’ [Citations.]”

19
 It is evident from Employee’s deposition that he and co-worker Byron Smith did
not get along at work. However, Employee’s recollections of their working relationship
fall short of establishing any kind of pervasive or severe harassment based on
Employee’s race or national origin. By Employee’s own account, Smith was his sole
harasser. Employee has described two or three comments by Smith disparaging Puerto
Ricans during the 10 years they both washed cars on the night shift before Employee got
a day shift position in 2001. In any event, his complaint is not based on that earlier
period of work.
Their personality conflict resumed when Smith also got a day shift position in
October 2006. Employee’s EEOC complaint of August 2007 alleged that Smith made
frequent derogatory remarks about Employee’s race and national origin between October
and December 8, 2006. However, at his deposition, Employee claimed that Smith’s
comments subsided in early October when Employee shut Smith down for calling him
“Precious.” He acknowledged that two weeks after they began working together, their
positions changed so that they did not work together again until the last week of
November and the first week of December 2006, when Employee took an extended
medical leave for knee surgery. Employee recalled complaining about Smith during that
period for claiming he was privileged as a black man and he did not recall Smith making
any racial slur about Employee during that time period.
Employee’s declaration in opposition to the summary judgment motion paints a
picture of more frequent ethnic epithets by Smith in late 2006 than does Employee’s
deposition. A summary judgment motion will ordinarily be denied when triable factual
issues appear. However, “a party cannot create an issue of fact by a declaration which
contradicts his prior discovery responses.” (Shin v. Ahn (2007) 42 Cal.4th 482, 500,
fn. 12; Benavidez v. San Jose Police Dept. (1999) 71 Cal.App.4th 853, 861–863 .)
“[W]hen discovery has produced an admission or concession on the part of the party
opposing summary judgment which demonstrates that there is no factual issue to be

20
tried,” such an admission is entitled to special deference. (D’Amico v. Board of Medical
Examiners (1974) 11 Cal.3d 1, 21)Id. at pp. 21–22.) To the extent Employee attempts to
create a triable issue by a declaration which contradicts his April 2011 deposition, we
will disregard the statements in the declaration.
Before Employee returned to work in July 2007, he successfully arranged with
Leong to have the day washers’ labor divided to keep Smith away from him. They
stayed apart for two weeks. When Smith entered his work area, Employee complained to
Leong, who told Smith to keep to his own area. Employee refused to attend a meeting on
July 19, 2007, that Leong arranged to resolve their differences. Smith was again told at
that meeting to stay in his own work area. Employee and Smith worked together about
two more weeks before Employee was told on August 9 to report to the night shift
because the third day washer position had been eliminated. Employee failed to recall a
single racial slur between his return to work on July 9, 2007, and his transfer to the night
shift one month later.
Even if we accept for the sake of discussion Employee’s opinion that his coworker
Smith was biased against Puerto Ricans, Employee at his deposition was able to recall
only a handful of ethnic epithets by Smith reflecting this bias during the first 10 or so
years they both worked on the night shift until 2001. At his deposition Employee did not
recall a single ethnic slur when they resumed working together five years later on the day
shift for the first two weeks of October 2006 and the last week of November and the first
week of December 2006, and Employee did not mention a single racial slur when they
worked together for a month after Employee returned to work on July 9, 2007.
While Employee detailed a personality conflict with his coworker at his
deposition, we conclude as a matter of law that he did not describe a work atmosphere
involving either severe or pervasive harassment by Smith based on Employee’s Hispanic
race or Puerto Rican origin. (Jones v. Department of Corrections and Rehabilitation
(2007) 152 Cal.App.4th 1367, 1378–1379 [no triable issue that female African-American

21
prison guard suffered severe or pervasive harassment based on race or sex]; Thompson,
supra, 186 Cal.App.4th 860, 878 [no triable issue that white male police officer was
subjected to severe or pervasive harassment based on his advocacy of African-American
coworkers].)
In view of our conclusion that there is no triable issue regarding a severe or
pervasive hostile work environment, we do not reach the trial court’s further conclusion
that Employer “took prompt and reasonable action upon receiving [Employee’s]
complaints about his co-worker, Byron Smith.” The antiharassment statute requires
employers to respond promptly and reasonably to complaints of harassment on a
prohibited basis. “[L]ike Title VII, the FEHA is ‘not a “civility code” and [is] not
designed to rid the workplace of vulgarity’ ” (Lyle, supra, 38 Cal.4th 264, 295),
personality conflicts (Palesch v. Missouri Com’n on Human Rights (8th Cir. 2000)
233 F.3d 560, 567; Vore v. Indiana Bell Telephone Co., Inc. (7th Cir. 1994)
32 F.3d 1161, 1162), loudness, or braggadocio. There can be no failure to prevent
harassment or discrimination in the absence of harassment or discrimination. (Trujillo v.
North County Transit Dist. (1998) 63 Cal.App.4th 280, 289.)
C. REASONS FOR EMPLOYEE’S SHIFT CHANGE AND TERMINATION
Employee’s remaining causes of action, the first and the fourth, alleged that
Employer changed Employee’s work schedule back to the night shift and terminated him
in retaliation for his complaining of discrimination to the EEOC.
“FEHA makes it unlawful for an employer or other person to ‘discharge ... or
otherwise discriminate against any person because the person has opposed any practices
forbidden under this part.’ (Gov. Code, § 12940, subd. (h).) A violation of this
prohibition occurs when the employer takes harmful action against an employee in
retaliation for the latter’s engaging in a protected activity.” (McCaskey v. California
State Automobile Assn. (2010) 189 Cal.App.4th 947, 987.)

22
 To adapt what this court said in McGrory, supra, 212 Cal.App.4th 1510 about an
alleged discriminatory discharge, “The ultimate issue when [an adverse, retaliatory
employment action] is alleged is what were the employer’s true reasons for [the adverse
action]. (Guz [v. Bechtel National, Inc. (2000)] 24 Cal.4th 317, 358 [‘the ultimate issue
is simply whether the employer acted with a motive to discriminate illegally’]; Mamou v.
Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 715 (Mamou) [‘The central issue is
and should remain whether the evidence as a whole supports a reasoned inference that the
challenged action was the product of discriminatory or retaliatory animus.’].)”
(McGrory, supra, 212 Cal.App.4th at p. 1524.)
On appeal Employee claims that the trial court improperly shifted the burden to
him without requiring Employer to carry its burden. We conclude the burden to establish
a triable issue was appropriately shifted to Employee after Employer met its burden on
this issue. Employer’s motion documented legitimate and nondiscriminatory reasons for
eliminating the third day shift car washer position and for terminating Employee.
Sisneroz declared that he was prompted to look into the need for a third day car washer
by Smith’s complaints about not having enough work after Employee returned to work in
July 2007. His inquiry revealed that an in-house study had already recommended the
work could be done by two car washers. The study was included in the motion. Sisneroz
and Jim Peterson jointly decided to eliminate the third position in early August 2007
without either being aware Employee had filed an EEOC complaint. As to Employee’s
termination, Sisneroz declared that it was based solely on Employee’s gross
insubordination on September 11, 2007.
“ ‘If the employer has met its burden by showing a legitimate reason for its
conduct, the employee must 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 [or retaliatory] animus, such that a reasonable trier of fact could

23
conclude that the employer engaged in intentional discrimination or other unlawful
action.’ ” (McGrory, supra, 212 Cal.App.4th at p. 1529.)
“ ‘There will seldom be “eyewitness” testimony as to the employer’s mental
processes.’ [Citation.] ‘In discrimination cases, proof of the employer’s reasons for an
adverse action often depends on inferences rather than on direct evidence. “An inference
is a deduction of fact that may logically and reasonably be drawn from another fact or
group of facts found or otherwise established in the action.” (Evid. Code, § 600, subd.
(b).) Thus, even though we may expect a plaintiff to rely on inferences rather than direct
evidence to create a factual dispute on the question of motive, a material triable
controversy is not established unless the inference is reasonable.’ [Citation.]” (McGrory,
supra, 212 Cal.App.4th at p. 1529–1530; fn. omitted.)
Apparent retaliation is actionable only when there is a “causal link” between an
employee’s “ ‘protected activity’ ” and an employer’s “adverse employment action.”
(Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) An “adverse employment
action” is one “that materially affects the terms, conditions, or privileges of
employment … .” (Id. at p. 1051.) “Minor or relatively trivial adverse actions or conduct
by employers or fellow employees that, from an objective perspective, are reasonably
likely to do no more than anger or upset an employee cannot properly be viewed as
materially affecting the terms, conditions, or privileges of employment and are not
actionable … .” (Id. at p. 1054.)
No change in employment conditions qualifies as actionable retaliation if it was
made in ignorance of the employee having engaged in protected activity. “ ‘Essential to a
causal link is evidence that the employer was aware that the plaintiff had engaged in the
protected activity.’ ” (Morgan v. Regents of University of California (2000)
88 Cal.App.4th 52, 70 (Morgan).)
As this court explained in Reeves v. Safeway Stores, Inc. (2004)
121 Cal.App.4th 95, when a corporate decision is made to change an employee’s working

24
conditions, “ignorance of a worker’s protected activities or status does not afford a
categorical defense unless it extends to all corporate actors who contributed materially to
an adverse employment decision.” (Id. at p. 109.) That decision reversed an employer’s
summary judgment. A male grocery store clerk who had complained about the sexual
harassment of female coworkers was terminated by his employer’s district manager. (Id.
at pp. 100–101, 105.) It was undisputed that the district manager was unaware of the
employee’s harassment complaints. (Id. at pp. 107, 110.) However, Reeves concluded
that this was an insufficient showing of ignorance under the following circumstances.
“[I]t is clear that [district manager] Hollis was not the only actor who materially
contributed to plaintiff’s discharge. Judging from her deposition testimony, her decision
really amounted to little more than the ratification of [a store security officer’s]
recommendation, which was itself the penultimate event in a chain commencing with a
report to [the store manager] Demarest from night manager Juarez, followed by
Demarest’s referral to Safeway’s security department, which produced a debatably
evenhanded ‘investigation’ by [security officer] Harrison [ ], which concluded with the
recommendation adopted by Hollis.” (Id. at p. 110.) “[T]he evidence presents ample
basis for finding retaliatory motives and conduct on the part of plaintiff’s unquestioned
supervisor, Demarest.” (Id. at p. 117.) There was no “direct evidence that [Harrison]
acted without retaliatory motive.” (Id. at p. 118.) The employer did not “attempt to show
that Harrison acted for honestly held nondiscriminatory reasons, and even if it had, the
evidence supports an inference that Harrison acted as a sort of institutionalized ‘cat’s
paw’ to effectuate the retaliatory intentions of supervisors by substantiating their claims
of misconduct and presenting the claims, thus reinforced, to upper management.” (Id. at
p. 119.)
1. Change in Shifts
Daniels v. United Parcel Service, Inc. (10th Cir. 2012) 701 F.3d 620, 635 stated:
“We acknowledge that many employees would find working the day shift preferable to

25
the night shift. But this does not establish an assignment to the night shift is sufficiently
material to constitute a significant change in employment status or responsibilities.” The
employee in that case was a dispatcher.
A change in work shifts may qualify as an adverse employment action if it has a
detrimental impact on an employee’s pay, benefits, working conditions, location, free
time, or other conditions of employment. (Mondzelewski v. Pathmark Stores, Inc.
(3d Cir. 1998) 162 F.3d 778, 787–788, and cases there cited.) We need not determine
whether there was a triable issue about Employee’s transfer to the night shift involving a
significant change in his working conditions, because there is another reason it does not
amount to retaliation.
If we consider the EEOC questionnaire completed on July 19, 2007, to be a charge
and not merely an informational document leading to the formal charge filed August 16,
2007, it still would not contradict the declarations of feeder manager Sisneroz and
transportation division manager Peterson that each was unaware of Employee having
filed an EEOC charge when they jointly decided to eliminate the third day shift car
washer position effective August 13, 2007. Employee’s declaration concedes that
Peterson was never notified of any complaint, but asserts that he personally notified
Sisneroz of his EEOC complaint before he was terminated, not necessarily before the
decision to eliminate the third position. Here again, Employee cannot create a triable
issue by declaring information that is inconsistent with his earlier testimony. At his
deposition, Employee never claimed to have notified Sisneroz of filing an EEOC
complaint, instead identifying other coworkers and supervisors as those he notified.
On appeal Employee points out that Temmet Oliver, Jr. was aware on July 23,
2007 that Employee said he was “going to the EEOC.” Employee asserts that “the fact
that Temmet Oliver clearly knew about the EEOC complaint imputes notice on
[Employer] as an entity.” This is not the law. Employee does not provide any evidence
that Oliver mentioned this claim to Sisneroz or Peterson or that Oliver was at all involved

26
in the decision to eliminate the third day car washer position. It is not enough to create a
triable issue that some of Employer’s staff knew of Employee’s EEOC complaint unless
there is evidence supporting a reasonable inference that a person with such knowledge
materially contributed to the decision to eliminate the position. (Morgan, supra,
88 Cal.App.4th 52, 70–74 [no evidence that those who were aware of employee’s
grievance were involved in decision to not rehire him].) There is no such evidence here.
Employee asserts, “The record leaves no room to doubt the fact that the plaintiff’s
position was eliminated not on the basis of a time study or any other objective basis, but
rather because management colluded with Smith by eliminating the plaintiff’s position on
the day shift.” This contradicts Employee’s deposition statement that there was a time
study of his work before the third position was eliminated. To contradict this statement,
his brief relies on what he claims Chuck Andrew said during a telephone interview on
February 11, 2009, with an EEOC agent.12 What Andrew said was that he believed
management took Smith’s word about a lack of available work and did not do a time
study. “But I am not positive, they might have done one, I just don’t know.” Andrew
also said he was not at his office during the call and did not have his files in front of him.
Andrew’s uncorroborated belief does not contradict Employee’s direct recollection.
It is true that Sisneroz looked into the need for three day car washers after Smith
complained about not having enough work. This does not establish that Smith, a car

12
Exhibit E in Employee’s appendix is entitled “Chuck Andrew Interview with
EEOC.” It appears to be some typed notes by an unidentified person of a telephone call
between that person and Andrew. We have noted previously that Employer objected in
the trial court to Employee’s reliance on unauthenticated documents that had not been
provided to Employer and that the trial court did not rule on Employer’s objections. On
appeal Employer objects to this interview exhibit in part as unauthenticated, hearsay, and
lacking foundation. Again, even if we were to overlook these objections, the passage
cited by Employee does not assist him.

27
washer himself, was at all involved in making the decision to eliminate the third position.
Smith’s complaint in July 2007 corroborated a January 2007 efficiency study that
determined the day car wash shift required 11.14 total hours of work.
Employee has presented no evidence giving rise to a reasonable inference that the
decision by Sisneroz and Peterson to eliminate the third day shift car wash position,
which resulted in Employee’s return to the night shift, was made or influenced by anyone
who was aware that Employee had filed an EEOC charge on July 19, 2007. Therefore,
no claim of actionable retaliation can be predicated on Employee’s elimination of the
third day shift car wash position. (Addy v. Bliss & Glennon (1996) 44 Cal.App.4th 205,
217.)
2. Termination
As to the reasons for Employee’s termination on September 11, 2007, when
Sisneroz terminated Employee he said it was due to Employee’s gross insubordination.
Sisneroz has subsequently declared that was his sole reason for discharging Employee
and he was still unaware at the time of termination of Employee’s EEOC complaint.
Employee does not dispute that gross insubordination is a legitimate reason for
termination, but he contends that his termination was really motivated by retaliation for
his EEOC complaint. However, while time passed between the decision to eliminate the
third day washer position in early August 2007 and Employee’s termination on
September 11, 2007, Employee has presented no evidence giving rise to an inference that,
in this interim, anyone he claims to have informed of his EEOC complaint had relayed
the information to Sisneroz prior to his termination or that any one of those individuals
materially contributed to the termination decision. There is no evidence that anyone
other than Sisneroz decided to terminate Employee.
In any event, an employee’s involvement in a protected activity like filing an
administrative complaint about discrimination does not insulate that employee from an
adverse action for violating workplace rules. (Joaquin v. City of Los Angeles (2012)

28
202 Cal.App.4th 1207, 1223, 1225 [false report of harassment may justify termination];
cf. McGrory, supra, 212 Cal.App.4th 1510, 1528 [FEHA “does not shield an employee
against termination or lesser discipline for either lying or withholding information during
an employer’s internal investigation of a discrimination claim.”].) As Employee
acknowledges being grossly insubordinate immediately preceding his termination, even if
Sisneroz was aware of the EEOC complaint, he was justified in terminating Employee for
gross insubordination as long as he did not also have an improper mixed motive like
retaliation. “Abusive or profane language coupled with defiant conduct or demeanor
justify an employee’s discharge on the ground of insubordination” even when the
employee has participated in protected activity. (Dunham v. Brock (5th Cir. 1986)
794 F.2d 1037, 1040–1041.) Employee has presented no evidence giving rise to an
inference that Sisneroz was thinking of Employee’s EEOC complaint at the time of his
discharge for insubordination. What is lacking is evidence of a causal nexus between
Employee’s EEOC complaint and his discharge by Sisneroz. (Royal Packing Co. v.
Agricultural Labor Relations Bd. (1980) 101 Cal.App.3d 826, 835.) We conclude that
Employee has identified no triable issue on either claim of retaliation.
D. DISCRIMINATION
Employee’s brief states, “Central to the instant litigation, is the fact that the
plaintiff suffered because the defendant neglected to discipline Byron Smith, an African
American, for fear that he would use the race card.” He also asserts that his argument “is
not based on Byron Smith making racial slurs to [Employee], but rather the company
failing to effectively discipline Byron Smith for fear that he would use the ‘race card.’ ”
Employer asserts that this theory is unavailable to Employee because it was not
articulated in the trial court. Employee has not filed a reply brief. We recognize that no
separate cause of action was predicated on Employee’s claim that Employer had failed to
discipline Smith for fear he would “ ‘use the race card,’ ” but this allegation was included

29
in Employee’s complaint as the reason given for Employer’s inaction on Employee’s
harassment complaints. We will consider the merits of this claim.
Employee is attempting to make out a claim of what is sometimes called reverse
discrimination, in this case that Employer favored an employee over others for having a
characteristic Employer is prohibited from discriminating against. (See Annot., What
Constitutes Reverse or Majority Race or National Origin Discrimination Violative of
Federal Constitution or Statutes ‒ Private Employment Cases (1998) 150 A.L.R. Fed. 1.)
This contention does not appear to challenge Employee’s transfer or termination, but
instead how Employer responded to Employee’s complaints about Smith. To make out a
claim of reverse discrimination, an employee must establish that he suffered an adverse
employment action and that others were treated more favorably as a result of the
employer’s discrimination against the majority to which the employee belongs. (Mastro
v. Potomac Elec. Power Co. (D.C. Cir. 2006) 447 F.3d 843, 851; Good v. University of
Chicago Medical Center (7th Cir. 2012) 673 F.3d 670, 678–679.)
Employee relies on Ricci v. DeStefano (2009) 557 U.S. 557 (Ricci). In that case, a
city administered an examination to determine which firefighters to promote to lieutenant
or captain. (Id. at p. 562.) When white candidates outperformed minority candidates on
the examination, there was a public debate about the validity of the exam, which resulted
in the city throwing out the exam results and then a lawsuit by white and Hispanic
firefighters likely to have been promoted. (Ibid.) The city argued that it acted to avoid a
disparate impact lawsuit. (Id. at p. 575.) Ricci explained how the Civil Rights Act has
been interpreted to prohibit not only disparate treatment of those with a protected
characteristic, such as race or national origin, but also an employer’s facially neutral
practices that have disparate impact on races. (Id. at pp. 577–578.) The issue on appeal
was “whether the purpose to avoid disparate-impact liability excuses what otherwise
would be prohibited disparate-treatment discrimination.” (Id. at p. 580.) The court held
as a matter of statutory construction, “under Title VII, before an employer can engage in

30
intentional discrimination for the asserted purpose of avoiding or remedying an
unintentional disparate impact, the employer must have a strong basis in evidence to
believe it will be subject to disparate-impact liability if it fails to take the race-conscious,
discriminatory action.” (Id. at p. 585.)
Implicit in Ricci is that some circumstances justify discriminating in favor of a
previously disadvantaged minority. Not every affirmative action by an employer to
remedy past discrimination is prohibited by Title VII. The federal Civil Rights Act’s
prohibition of “racial discrimination does not condemn all private, voluntary, race-
conscious affirmative action plans.” (United Steelworkers of America, AFL-CIO-CLC v.
Weber (1979) 443 U.S. 193, 208.)
Employee compares himself to the white and Hispanic firefighters in Ricci, saying
that he “experienced detrimental treatment because he is not black.” The facts before us
do not fit a recognized pattern of reverse discrimination. The typical reverse
employment discrimination case, as in Ricci, involves an employer favoring one kind of
candidate or employee in hiring or job advancement based on his or her minority status
over others who are equally qualified. In Hicks v. KNTV Television, Inc. (2008)
160 Cal.App.4th 994, this court confronted such a claim on appeal from a summary
judgment, that the decision by a television station not to renew the contract of a white
male news anchor “was motivated by the desire to place an African-American in the
5:00 p.m. anchor position.” (Id. at p. 1004.)
We do not understand Employee to be making this kind of reverse discrimination
claim, that Smith was given job opportunities at Employee’s expense. As far as any
changes in Employee’s duties as a car washer to accommodate Smith’s injury in mid-
October 2006 and Smith’s return to health at the end of November 2006, “[p]roof of an
adverse employment action requires a ‘ “tangible change in duties or working conditions
that constitute a material disadvantage.” ’ ” (Phillips v. Collings (8th Cir. 2001)
256 F.3d 843, 848; cf. Griffin v. Potter (7th Cir. 2004) 356 F.3d 824, 830 [“the transfer ‒

31
which involved no material change in duties or benefits ‒ was not an adverse
employment action”].) There is virtually no evidence of what duties changed for
Employee in mid-October or late November 2006 and there is no evidence that any
change amounted to a material disadvantage to Employee.
If we assume for the sake of discussion that the day shift offered car washers a
more favorable working climate than the night shift, we do not understand Employee to
contend that it was Smith’s race that prevented Smith from being transferred to the night
shift instead of Employee when the third day washer position was eliminated in
August 2007. Employee has acknowledged that he was reassigned in accordance with
the applicable collective bargaining agreement as the day washer with the least seniority.
Any change in Employee’s duties or working conditions when the third position was
eliminated was attributable to Smith’s seniority, not his race.
Another type of reverse discrimination is when minority employees receive a
lesser punishment than other employees for the same conduct. This court confronted
such a claim in McGrory, supra, 212 Cal.App.4th 1510, when a white male employee
claimed that he was terminated for the same misconduct for which a female employee
was not disciplined based on the recommendation of a biased female investigator. We
explained, “To establish discrimination based on disparate discipline, it must appear ‘that
the misconduct for which the employer discharged the plaintiff was the same or similar to
what a similarly situated employee engaged in, but that the employer did not discipline
the other employee similarly.’ ” (Id. at p. 1535.)
We do not understand Employee to be making such a claim, that he was
transferred or terminated for conduct that Smith got away with. He has cited no example
of another employee who engaged in conduct similar to Smith’s who was disciplined
more strictly than Smith was disciplined. Employee instead asserts that a “jury could
have found that the management of [Employer], to the detriment of [Employee], failed to
discipline Byron Smith for fear that he would use the race card.” Employee contends that

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this failure to discipline “is in and of itself sufficient to constitute harassment under”
FEHA. Employee misconstrues the nature of harassment and discrimination claims by
equating favorable treatment of Smith with unfavorable treatment of Employee. A
failure to act on Employee’s complaints because Smith was black does not necessarily
establish any prejudice against Employee because of his own race or national origin.
Nor is there a triable issue whether Employer’s alleged failure to discipline Smith
was an employment action adverse to Employee. It was Smith, not Employer, who was
needling Employee. Mistreatment by a nonsupervisory coworker is not an adverse action
by the employer. (Moisant v. Air Midwest, Inc. (8th Cir. 2002) 291 F.3d 1028, 1032.)
When a coworker’s mistreatment has a prohibited basis, an employer that should know of
the harassment may be liable for failing to take immediate and appropriate corrective
action. However, it is not an adverse employment action by the employer for a coworker
to be uncivil absent a prohibited motive, and it is not an adverse employment action for
the employer to fail to correct such behavior. “[O]rdinary workplace strife … cannot
constitute adverse employment action.” (Matvia v. Bald Head Island Management, Inc.
(4th Cir. 2001) 259 F.3d 261, 272.) “Although Plaintiff might receive some personal
satisfaction or vindication from punishment of [his] perceived nemesis, [his] conditions
of employment were not materially affected by the lack of discipline.” (Wells v.
Colorado Dept. of Transp. (10th Cir. 2003) 325 F.3d 1205, 1215.)
Under Title VII and FEHA, an employer has three primary obligations: to not
discriminate against employees on a prohibited basis, to eliminate discriminatory
harassment by coworkers, and to not punish an employee for complaining about
discrimination by coworkers or by the employer. We have already concluded that there
is no triable issue concerning whether Smith’s harassment of Employee was severe or
pervasive enough to create a hostile work environment and whether Employer transferred
or terminated Employee in retaliation for filing an EEOC charge. Absent evidence giving
rise to a reasonable inference that Employer’s alleged failure to discipline Smith was

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motivated by Employee’s race or national origin, we now conclude there is no triable
issue of discrimination against Employee in how Employer handled Employee’s
complaints about Smith.
E. COSTS
Under a heading complaining of the trial court’s award of sanctions against
Employee, his only argument is that “the trial judge’s decision to award $6,562 in costs”
to Employer is an abuse of discretion because Employer’s summary judgment motion
should not have been granted. We have found no error in granting the motion. Employee
also requests “[d]ismissal of all trial court sanctions and/or cost awarded” to Employer.
Employee presents no reasoned argument challenging any discovery sanctions awarded
to Employer.
IV. DISPOSITION
The judgment and costs award are affirmed.

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 ____________________________________
Grover, J.

I CONCUR:

____________________________
Bamattre-Manoukian, Acting P.J.

I CONCUR IN THE JUDGMENT ONLY:

____________________________
Mihara, J.