>Battle>
v. Japan>
Tobacco





















Filed 12/10/12 Battle v. Japan Tobacco CA2/2











>NOT TO BE PUBLISHED IN THE
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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



SECOND APPELLATE DISTRICT



DIVISION TWO




>

PERRY BATTLE, Plaintiff and Appellant, v. JAPAN TOBACCO INTERNATIONAL U.S.A., INC., Defendant and Respondent.

B235816 (Los Angeles County Super. Ct. No. BC441114)

APPEAL
from a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County.

Mary H. Strobel, Judge. Affirmed.



Law
Offices of Joseph M. Lovretovich, Joseph M. Lovretovich, David F. Tibor for
Plaintiff and Appellant.



Holland
& Knight, Linda Auerbach Allderdice, James W. Michalski, Timothy F. Fisher
for Defendant and Respondent.

___________________________________________________





A former employee appeals from a
grant of summary judgment, contending
that triable issues of material fact exist as to whether his termination was
motivated by the filing of a complaint alleging href="http://www.fearnotlaw.com/">racial discrimination. We conclude that, because the defendant employer
showed that its reason for terminating appellant was legitimate and
nonretaliatory, and because appellant failed to counter this showing, summary
judgment was proper.

FACTUAL AND PROCEDURAL BACKGROUND

Termination
of Battle’s Employment

Respondent
Japan Tobacco International USA, Inc. (JTI) is a seller of tobacco
products. Appellant Perry Battle joined
JTI as the “west regional sales manager” in JTI’s Torrance office in
2003, an at-will position that Battle held throughout the duration of his employment. Battle occupied a top spot in the JTI hierarchy as one of only two
regional sales managers in the United States. During the time period
relevant to this case, he was supervised by Rick Di Donato, the planning &
operations director and national sales director for JTI. As the west regional sales manager, Battle
directly supervised four district sales managers and a key account manager, and
indirectly supervised between 20 to 25 other sales representatives.

In
February 2009, Battle, who is African-American, filed a complaint for race and
age discrimination with the Equal
Employment Opportunity Commission (EEOC).
He alleged that in January 2009 he was given an unwarranted negative
performance review by Di Donato.
Following mediation, Battle and JTI settled the EEOC charge. The parties agreed that Battle would receive
a positive adjustment in his performance review and a bonus and salary
increase. The settlement agreement
further provided that JTI did not admit to any violations.

Battle
continued to work as the west regional sales manager following the
settlement. On June 25 of 2009, Battle
and a subordinate, Jim Jones, a district sales manager, were in Fresno on a
business trip. At the end of the night,
Battle and Jones returned to their hotel and sat talking in the lobby, when
they got into a heated argument. The
next day, Jones called Anne Binkley, JTI’s human resources director, to report
the incident. He described Battle as the
instigator, stated that Battle was yelling and swearing at him, and said that
Battle pushed him.

Binkley
initiated an investigation of the incident, and Di Donato was brought in to
interview Jones and Battle. Following
their investigation, Binkley and Di Donato met with Douglas Van Staveren,
general manger of American operations for JTI.
The three agreed that Battle should be terminated. On July 7, 2009, Binkley sent a letter
to Battle on behalf of JTI, stating that Battle had been terminated as result
of violations of company policy and JTI’s code of conduct, specifically
relating to the June 25, 2009 argument.

Summary
Judgment

Battle
filed his operative second amended
complaint against JTI in March 2011, pleading the following causes of
action: (1) retaliation in violation of
the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12940 et
seq.); (2) race discrimination in violation of FEHA; (3) wrongful termination
in violation of FEHA; (4) failure to maintain a workplace free from
discrimination and harassment in violation of FEHA; and (5) wrongful
termination in violation of Labor Code section 1102.5. Battle alleged that JTI’s stated reason of
terminating Battle for his argument with Jones was merely pretext, and that he
was actually terminated because of filing the EEOC complaint and because he is
African-American.

JTI
filed a motion for summary judgment in April 2011. JTI argued that it conducted a thorough
investigation of the June 25, 2009 incident with Jim Jones, and that based on
Battle’s behavior, including his inconsistent explanations of the incident, and
taking into account that he was a high ranking manager of the company,
termination was warranted. Jones submitted
a declaration in support of the motion.
His declaration stated that on the night of June 25, he and Battle went
to a dinner meeting with a client, where they drank wine. Afterward, Battle and Jones went to a bar and
drank more wine. They then returned to
their hotel where they got into the argument.
Jones’s declaration stated that, in reporting the incident to Anne
Binkley, he told her that in the lobby Battle expressed displeasure that the
previous fall Jones and Di Donato had elected to go out to a casino instead of
attending an important customer dinner that they had been scheduled to
attend. After Jones responded, Battle
began screaming and shouting at him, swearing at him, and disparaging him. Battle got so close to Jones that Jones could
feel his spit, and Battle pushed him in the chest. Battle and Jones eventually moved their
argument from the lobby to a hallway corridor, where a security guard came and
asked them to leave. They then continued
their argument just outside a building exit.
About half an hour later, the security guard came again and asked them
to move away from the building because they were disturbing guests. Battle responded “fuck them,” and both Battle
and Jones moved farther out into the parking lot to continue their argument. Over an hour later, Jones returned to his
room. He called the Fresno Police
Department to report the incident.

According
to the Declaration of Anne Binkley, also submitted in support of the motion,
she received a phone call on the morning of June 26 from Jim Jones. Jones told her that he was very upset because
he had a “huge argument” with Battle.
After Jones explained his version of the events, Binkley informed Van
Staveren and Di Donato, and then called Battle to get his side of the story. Binkley’s declaration stated that Battle admitted
to having “strong words” with Jones, and that Battle stated the reason for the
argument was that Jones refused to invest in a real estate business that they
had agreed to start together. Battle
denied that he pushed Jones. He also
denied seeing a security guard during the incident.

Binkley’s
declaration went on to state that, after speaking to Battle, she called the
Fresno hotel to ascertain whether hotel personnel had witnessed the
incident. She was connected to the
security guard, who stated that he first observed the argument about 11:45
p.m., when the men were “‘making a loud raucous [sic] in the lobby area.’”
The guard told Binkley that Jones was “‘trying to tone it down’” but
that Battle’s demeanor was “‘aggressive.’”
The night of the incident, the security guard authored an incident
report, which stated that he asked the men to take their argument outside and
to move away from the building, and which described Battle as yelling and
swearing at Jones. The guard also
submitted a declaration in connection with JTI’s motion for summary judgment,
stating that on the night of the incident he was wearing his security uniform,
which has visible security badges, and that he twice asked the men to move
their argument away from the other hotel patrons. The declaration stated that the second time
the security guard asked them to move so as not to bother other guests, Battle
responded “fuck them.”

Battle opposed the href="http://www.fearnotlaw.com/">motion for summary judgment, primarily arguing
that the argument in Fresno was not a sufficient reason for termination. Battle contended that the details of the
argument had been embellished by Jones and Binkley, and that the argument was
not as serious as it had been portrayed.
Battle then attempted to list other JTI employees who had engaged in
misconduct but whose employment had not been terminated. He argued that the entirety of this evidence
showed that the argument was merely pretext for his termination, and that the
decision-makers at JTI were actually motivated to fire him by his EEOC
filing. Many of the assertions Battle
made in opposing summary judgment were not supported by any evidence, and
Battle failed to file any objections to the evidence presented by JTI.

The
trial court heard the motion for summary judgment on June 23, 2011. After argument, the court granted the motion,
finding that Battle failed to raise a triable issue of whether the proffered
reason for termination was pretextual.
Its decision noted that Battle did not dispute that an argument took
place, that he used “‘aggressive language’” during the argument, or that the
incident merited discipline. The court
wrote: “Plaintiff has not presented
evidence contradicting the main facts that underlie Defendant’s reasons for
terminating him, namely that Plaintiff engaged in unprofessional behavior
consisting of a protracted loud, public and likely profane argument with a
subordinate that required the intervention of security personnel from a hotel.”

Battle
timely appealed.

>DISCUSSION

Summary judgment must be granted if
the papers show an absence of triable issues of material fact and that the
moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) We review a trial court’s decision on summary
judgment de novo, determining independently whether the facts not subject to
dispute support summary judgment. (>Intel Corp. v. Hamidi (2003) 30 Cal.4th
1342, 1348.) Doubts are resolved in
favor of the party opposing the judgment, and we are not bound by the trial
court’s reasons for the summary judgment ruling. (Conte
v. Wyeth, Inc. (2008) 168 Cal.App.4th 89, 97; M.B. v. City of San Diego (1991) 233 Cal.App.3d 699, 703–704; >Knapp v. Doherty (2004) 123 Cal.App.4th
76, 85.)

On
an appeal from summary judgment, we take the facts from the record before the
trial court. (State Dep. of Health Services v. Superior Court (2003) 31 Cal.4th
1026, 1034-1035.) We affirm an order
granting summary judgment if it was correct on any ground that the parties had
an adequate opportunity to address in the trial court. (Securitas
Security Services USA, Inc. v. Superior Court (2011) 197 Cal.App.4th 115,
120.)

I. Retaliation

In
his appeal, Battle first contends that the trial court erred by granting
summary judgment on his claims for retaliation. FEHA prohibits employers from “discharg[ing],
expel[ling], or otherwise discriminat[ing] against any person because the
person has opposed any practices forbidden under this part or because the
person has filed a complaint, testified, or assisted in any proceeding under
this part.” (Gov. Code, § 12940, subd.
(h).) Labor Code section 1102.5, subdivision
(b), provides that an “employer may not retaliate against an employee for
disclosing information to a government or law enforcement agency, where the
employee has reasonable cause to believe that the information discloses a
violation of state or federal statute, or a violation or noncompliance with a
state or federal rule or regulation.”
Battle alleged that JTI engaged in improper conduct by firing him for
bringing the EEOC complaint.

Battle’s
claims for retaliation under FEHA, wrongful termination, and violation of Labor
Code section 1102.5 are each subject to the same analysis. (See Morgan
v. Regents of University of California (2001) 88 Cal.App.4th 52,
67-68.) “When a plaintiff alleges
retaliatory employment termination either as a claim under the FEHA or as a
claim for wrongful employment termination in violation of public policy, and
the defendant seeks summary judgment, California follows the burden-shifting
analysis of McDonnell Douglas Corp. v
Green (1973) 411 U.S. 792 to determine whether there are triable issues of
fact for resolution by a jury. (Cf. >Caldwell v. Paramount Unified School Dist.
(1995) 41 Cal.App.4th 189, 202-203.) In
the first stage, the ‘plaintiff must show (1) he or she engaged in a “protected
activity,” (2) the employer subjected the employee to an adverse employment
action, and (3) a causal link existed between the protected activity and the
employer’s action.’ (>Yanowitz v. L'Oreal USA, Inc. (2005) 36
Cal.4th 1028, 1042.) If the employee
successfully establishes these elements and thereby shows a prima facie case
exists, the burden shifts to the employer to provide evidence that there was a
legitimate, nonretaliatory reason for the adverse employment action. (Morgan
[, supra, at p.] 68.) If the employer produces evidence showing a
legitimate reason for the adverse employment action, ‘the presumption of
retaliation “‘“‘drops out of the picture,”’”’ (Yanowitz, supra, at p. 1042), and the burden shifts back to the
employee to provide ‘substantial responsive evidence’ that the employer’s
proffered reasons were untrue or pretextual (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th
1718, 1735).” (Loggins v. Kaiser Permanente Internat. (2007) 151 Cal.App. 4th
1102, 1108-1109.)

In
moving for summary judgment, JTI did not dispute that Battle established a
prima facie case for retaliation based on the filing of the EEOC charge and his
subsequent termination, which occurred about five months later. JTI presented evidence showing a legitimate
reason for Battle’s termination, however, which shifted the burden back to
Battle to provide substantial evidence that the reason was pretextual. As correctly found by the trial court, Battle
failed to meet this burden.

A. Temporal Proximity

On appeal, Battle first argues that
the temporal proximity between the EEOC filing and his termination established
a triable issue of retaliatory
motive. This assertion is plainly
incorrect. “Where the employee relies
solely on temporal proximity in response to the employer’s evidence of a
nonretaliatory reason for termination, he or she does not create a triable
issue as to pretext, and summary judgment for the employer is proper.” (Arteaga
v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 357; see also >McRae v. Department of Corrections &
Rehabilitation (2006) 142 Cal.App.4th 377, 388.)

>B.
Sufficiency of the evidence

Battle
next argues that JTI’s proffered reason for termination was unworthy of
credence. Battle does not dispute that a
“loud” argument involving “challenging words” transpired. He contends, however, that the evidence
presented by JTI was not sufficient to show that the argument was a valid
ground for termination.

Battle’s
quibbles with JTI’s evidence include:
(i) JTI employees use swear words in the course of their employment at
JTI, so any swearing during the argument was not a per se violation of company
policies; (ii) the security guard’s statement regarding the argument was
unspecific; (iii) Battle has never “lost
control” during his five “impeccable” years with JTI; (iv) Battle is “health
conscious and physically fit” and so would not have been drinking to excess on
the night of the incident; and (v) Battle was tired and wanted to go to bed,
but Jones wanted to keep drinking. One
problem with Battle’s argument is that many of these assertions are not
supported by citations to evidence in the record. This failure in itself renders Battle’s
argument ineffective. (See >In re Marriage of Tharp (2010) 188
Cal.App.4th 1295, 1310, fn. 3; Provost v.
Regents of University of California (2011) 201 Cal.App.4th 1289,
1294.) Furthermore, certain evidence
presented by JTI that Battle takes exception with potentially could have been
subject to objection. Battle did not
file any evidentiary objections, however, and provides no valid reason on
appeal for why we should disregard JTI’s evidence.

Moreover,
even if we were able to fully consider Battle’s argument that JTI’s evidence
was insufficient, reversal would still be unwarranted. It is unimportant that there may have been
some varying accounts of the details of the argument. What was important was that JTI’s management
believed that a heated argument involving swearing and possible physical
contact occurred. The incident involved
a high-level JTI employee and his direct report, and Battle was the
aggressor. Battle did not act in a
manner expected of a high-level employee, and the incident did not reflect well
on JTI as a company. Further, JTI
determined that Battle misrepresented the details of the incident when he was
questioned. JTI was entitled to investigate
the incident, attempt to determine what transpired, and impose discipline
commensurate to the violation. (See >Joaquin v. City of Los Angeles (2012)
202 Cal.App.4th 1207, 1224-1225.)
Nothing in the record shows that JTI did not adequately investigate, or
that it lacked evidence for finding that Battle engaged in improper conduct
warranting termination.

The
evidence presented by JTI was sufficient to shift the burden to Battle on
summary judgment. Since Battle failed to
counter the conclusion that JTI’s reason for terminating his employment was
legitimate and nonretaliatory, summary judgment was proper.

>C.
Other employees’ misconduct

A
plaintiff may show that an employer’s stated reason for termination was pretext
by presenting evidence that other employees in similar circumstances were
treated less severely. (>Wills v. Superior Court (2011) 195
Cal.App.4th 143, 172.) During his
deposition, Battle named a number of JTI employees who, according to Battle,
engaged in misconduct and were not terminated.
Battle stated that certain JTI employees committed theft, lied about
other employees, loudly argued with other employees, worked on personal
business during company hours, and falsified company documents.

We find that such evidence was
insufficient to raise a triable issue of material fact. In order to establish pretext, Battle had to
show that the identified employees were “similarly situated.” (Wills
v. Superior Court, supra, 195
Cal. App.4th at p. 172.) Employees are
“similarly situated” if they “‘engaged in the same conduct without any
mitigating or distinguishing circumstances.’”
(Ibid.) The trial court correctly found that Battle
failed to show that other employees were similarly situated.

Only
three of the employees used by Battle for comparison were involved in heated
arguments. Battle provided no evidence
that any of these three employees were ever referred to JTI’s human resources
department or otherwise referred for disciplinary purposes. In the case of Battle’s inappropriate behavior,
JTI presented evidence that Jones brought the matter to the attention of human
resources personnel for the purpose of invoking a href="http://www.mcmillanlaw.com/">disciplinary investigation. The evidence that Battle relied on of other
employees who engaged in heated arguments did not include evidence of any
internal complaint or investigation. It
is possible that, if the other incidents were reported to human resources (or a
supervisor) for disciplinary purposes, the subject employees might have been
terminated or might have been “slapped on the wrist.” But without comparator evidence of any sort
of internal complaint, investigation, or discipline, it is impossible to find
that Battle was treated more severely than similarly situated employees.href="#_ftn1" name="_ftnref1" title="">^[1]

Moreover,
none of the employees identified by Battle occupied a high-level position like
his. When an employee occupies a
sensitive managerial or confidential position, the employer is provided a
substantial scope to exercise subjective judgment with respect to employment
decisions. (Pugh v. See’s Candies, Inc. (1981) 116 Cal.App.3d 311, 330; >Stokes v. Dole Nut Co. (1995) 41
Cal.App.4th 285, 293.) JTI appropriately
determined that, because Battle was only one of two regional sales managers, he
could be held to a high standard of conduct, and that a loud, public, and
profane tirade against a subordinate would fall below this standard. Battle’s display of anger certainly caused a
scene. Battle was observed making a
“loud ruckus” in the hotel lobby. He and
Jones were asked to move away from the hotel building because they were
bothering other hotel guests. JTI could
reasonably believe that a high-level manager engaging in such conduct in a
public area was contrary to the image that JTI wished to project as a
company. Notably, none of the comparator
evidence put forward by Battle involved an employee’s public display of
inappropriate behavior.

JTI could also
expect Battle to be forthcoming and honest about the incident. The statement provided by a neutral third
party witness—the security guard—contradicted Battle’s account in several key
respects, providing a further reason for JTI to find termination warranted.

In
sum, the facts before JTI’s human resources personnel were sufficient to
justify termination of employment.
Because Battle was not able to identify any employee who occupied a
sensitive position such as his, who engaged in behavior similar to his, and
whom the JTI disciplinary system treated more leniently, his argument of
pretext failed.

D. Investigation of Battle

On appeal, Battle briefly argues
that both Di Donato and Binkley were either biased against him, or beholden to
someone biased against him, and therefore should not have been involved in
investigating the incident.

Battle
does not develop this argument. He just
plainly asserts that the investigation was improper. We cannot develop appellant’s argument for
him, and therefore do not consider it.
(See In re Marriage of Falcone
& Fyke (2008) 164 Cal.App.4th 814, 830 [“We are not bound to develop
appellants’ arguments for them.
[Citation.] The absence of cogent
legal argument or citation to authority allows this court to treat the
contentions as waived.”]; Christoff v.
Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 125-126.)

We
also decline to address the argument because Battle failed to raise it in the
trial court. “[W]e are not obliged to
consider arguments or theories . . . that were not advanced by plaintiffs in
the trial court.” (DiCola v. White Brothers Performance Products, Inc. (2008) 158
Cal.App.4th 666, 676; see also American
Continental Ins. Co. v. C & Z Timber Co. (1987) 195
Cal.App.3d 1271, 1281 [“Generally, the rules relating to the scope of appellate
review apply to appellate review of summary judgments. [Citation.]
An argument or theory will generally not be considered if it is raised
for the first time on appeal.”]; Ibid.
[“Thus, possible theories that were not fully developed or factually presented
to the trial court cannot create a ‘triable issue’ on appeal.”].)

II. Remaining Cause of Action

In
his opening brief, Battle affirmatively waived the right to appeal the trial
court’s ruling on his cause of action for race discrimination. Therefore, only Battle’s claim that JTI
failed to maintain a workplace free from discrimination and harassment remains
to be addressed. Battle acknowledges
that a finding of discrimination or harassment is an “essential foundational
predicate” of such a claim. (>Trujillo v. North County Transit Dist.
(1998) 63 Cal.App.4th 280, 289.) Battle
did not pursue his claim for discrimination and did not establish that any
improper harassment may have occurred.
As he is unable to establish the foundational predicate, his claim for
failure to maintain a workplace free from discrimination and harassment
necessarily fails.

DISPOSITION

The
judgment is affirmed.

NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS.



BOREN,
P.J.

We concur:



ASHMANN-GERST,
J.



CHAVEZ,
J.