Borrege v. Cal. Dept. of Transp

Filed 2/4/10 Borrege v. Cal. Dept. of Transp. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Plaintiff Sharon Louise Borrege was a probationary employee of defendant California Department of Transportation when her employment was terminated effective July 2001. According to defendant, plaintiff was discharged because she was not a safe driver and had an unacceptable attitude toward safety and safe working practices. Plaintiff maintained that defendant had fired her, had restricted her from driving, and had refused to give her certain technical training based upon her gender or in retaliation for complaints she had filed with the Department of Fair Employment and Housing (DFEH). She sued defendant for violation of the Fair Employment and Housing Act (FEHA). (Gov. Code, 12900 et seq.) The trial court granted defendants motion for summary judgment. We shall affirm.

I.                   Facts

Plaintiff was employed by defendant during two separate periods of time: 1987 through 1998 and 2000 through 2001. Plaintiff began the first period of employment in Santa Barbara where she was classified as a transportation engineering technician and worked as a construction inspector. While working in Santa Barbara, plaintiff alleged that she was being sexually harassed by her coworkers. She filed a DFEH complaint based upon those allegations in 1989. Defendant reassigned her to the San Luis Obispo offices while the DFEH conducted an investigation into her allegations of harassment. Thereafter, plaintiff filed two more DFEH charges, one in 1990 and another in 1991, alleging that defendant had retaliated against her for filing the first DFEH charge. The DFEH issued a right-to-sue letter in response to each of these charges but plaintiff never filed a lawsuit because she believed that the violations that occurred at the Santa Barbara office would not continue.

In late 1991, plaintiff suffered an exacerbation of a preexisting psychological condition, which caused her to be off work until May 1994. Her psychological condition caused her to be off work again from around December 1996 through October 1998, when defendant issued a notice of medical termination. The notice informed plaintiff of her right to appeal the termination to the State Personnel Board. The notice also allowed that she could petition the State Personnel Board in the future if her condition improved and that she could be reemployed if an appropriate position was available. Plaintiff did not respond to the notice and did not appeal. The termination was final on November 12, 1998.

Although plaintiff did not appeal the medical termination, she did pursue reinstatement when her condition improved. In a letter dated September 19, 2000, plaintiffs treating psychologist gave the opinion that plaintiffs mental condition was no longer disabling. On September 25, 2000, the medical officer from the State Personnel Board approved her permissive reinstatement to the position of transportation engineering technician and ordered a new probationary period, noting, Based on the information I have reviewed, it is my medical opinion that you are currently able to perform the duties of this position as long as you remain under the care of your doctor and continue your medication.

Defendant at first directed plaintiff to report to the San Luis Obispo offices but she requested placement in Santa Cruz County in order to be closer to the specialists at Stanford who were treating her. Defendant granted the request and assigned her to a survey crew in Aptos, in Santa Cruz County. This began her second period of employment. She reported to the acting crew chief in Aptos on December 12, 2000. Her assigned supervisor, William Higginbotham, returned from vacation on January 2, 2001. Thereafter, and until her termination six months later, plaintiff was assigned to a survey crew that consisted of first-line supervisor Higginbotham and surveyors Mark Bennett and Rick Meyer. Plaintiffs second-line supervisor was Robert Fredricks.

Most of the work of the Aptos survey crew took place at the job sites, often in areas adjacent to traffic. Work on the survey crew involved a wide variety of activities required for surveying and mapping highway projects. All crew members needed to be able to safely operate defendants vehicles to and from and around the job sites. Higginbotham became concerned that plaintiff was not a safe driver. He had also observed plaintiff engage in what he viewed to be unsafe practices while she was on foot near highway traffic. Higginbotham asked Bennett and Meyer to observe plaintiffs driving ability and both gave her unfavorable reports. Bennett also reported that plaintiff became hostile and argumentative when he made suggestions about her driving.

In February 2001, plaintiff complained to a human resources representative that she was not in good enough physical shape to do the survey job, which seemed to require more heavy manual labor than had been included in the job description. Plaintiff maintained that during her extended leave of absence she had not been lifting weights and had not been walking like she did when she was a construction inspector so that her physical conditioning was not very good. She also mentioned her medical history of a shoulder and neck injury. She thought her complaints would lead to a search for a different job. Instead, she was sent home and instructed to obtain medical clearance before she could return to work. Plaintiff received medical clearance in late March and returned to work on April 2, 2001.

Higginbotham prepared a written evaluation of plaintiffs performance dated May 23, 2001. He rated her as improvement needed in several areas. In a two page narrative attached to the report, Higginbotham noted his concern about her driving, her safety on foot, her negative attitude, and her inability to accept criticism. Although her performance had been improving, Higginbotham cautioned that any deterioration in the areas he had already rated as needing improvement could result in her failing probation.

Just one week after plaintiff received the negative performance evaluation, Bennett observed her driving erratically and dangerously. He also noted plaintiffs failure to pay attention to her surroundings. He documented his observations in a memorandum to Higginbotham dated May 31, 2001. On June 5, 2001, Bennett submitted a second memorandum, reporting that plaintiff had twice ignored his instructions about how to stand when on foot mapping paved areas in a traffic intersection. On June 13, 2001, plaintiff hit a sign while backing into a parking space in a maintenance yard.

Based upon Higginbothams recommendation and Bennetts two memoranda, second-line supervisor Fredricks decided to reject plaintiff on probation. Fredricks stated that plaintiff was rejected due to safety considerations and plaintiffs failure to develop an acceptable attitude towards safety and safe working practices. Plaintiffs last day of work was June 19, 2001.

II.                Procedural Background

Plaintiff filed a charge with the DFEH on April 11, 2002. In it she alleged that she had been subjected to differential treatment because of my gender, my disability, and in retaliation for having filed a DFEH complaint in 1989, and for repeatedly complaining internally since then of recurring retaliation for filing the DFEH complaint. She alleged that Higginbotham had refused to give her technical training and required that she pass at least four separate vehicle tests. Non-disabled, male employees received technical training and were only required to pass one vehicle test. She further alleged that she was the only female assigned to work in a field position in surveys, that Fredricks had told her to direct all questions and requests for information through Higginbotham, whereas nondisabled male employees were not so restricted, that she received a poor evaluation, which differed from her verbal discussions with Higginbotham, and that she had been restricted from driving for having hit a sign.

The DFEH issued a right to sue to sue letter and plaintiff timely filed this civil suit. Plaintiffs third amended complaint contains three causes of action: gender discrimination, sexual harassment, and retaliation. (Plaintiff has abandoned any claim of disability discrimination.) Each cause of action is based upon an alleged violation of the FEHA. The harassment and retaliation claims relate, at least in part, to plaintiffs first period of employment.

Defendant filed a demurrer, which was overruled. Thereafter, defendant moved for summary judgment or, in the alternative, summary adjudication. Plaintiff filed an opposition and defendant raised 88 written objections to the evidence she submitted. The trial court did not expressly rule on the individual objections but did state at the hearing and in its written order, referring to plaintiffs declaration, It mostly consists of hearsay and speculation.

The trial court granted the motion for summary judgment. The court found that any claims related to plaintiffs first period of employment were barred by the statute of limitations. The continuing violation doctrine (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798 (Richards)) did not apply since the two employment periods were not temporally related and there was no continuing course of conduct.

As to plaintiffs first cause of action for gender discrimination, the trial court found that defendant had either established that the conduct of which plaintiff complained did not occur or that there was a nondiscriminatory basis for it. Evidence of hiring patterns showed that there was no pattern of gender discrimination and plaintiff had not rebutted the evidence in support of defendants nondiscriminatory reasons for its actions against her.

The court went on to find that the second cause of action for sexual harassment was barred by plaintiffs failure to exhaust her administrative remedies because there was no claim for sexual harassment in her 2002 DFEH charge. Finally, as to the third cause of action for retaliation, the court found that defendant had demonstrated nonretaliatory reasons for its actions and that plaintiff had been unable to show that her coworkers or supervisors in Aptos knew anything about the prior DFEH charges. Accordingly, the court granted summary adjudication as to all causes of action. Judgment was entered and plaintiff has timely appealed.

III.             Discussion

A.                 Scope and Standard of Review

In order to prevail on a motion for summary judgment or summary adjudication, a defendant must show that one or more elements of a cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc., 437c, subd. (p)(2).) Once the defendant makes that showing, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or defense. The plaintiff or cross-complainant may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto. (Ibid.)

Because a motion for summary judgment raises only questions of law, we independently review the parties supporting and opposing papers and apply the same standard as the trial court to determine whether there exists a triable issue of material fact. (City of San Diego v. U.S. Gypsum Co. (1994) 30 Cal.App.4th 575, 582.) We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party. (Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 1003.)

B.                 Sexual Harassment

We begin our discussion with plaintiffs second cause of action for sexual harassment. Harassment of an employee on account of his or her race, sex, age, or other enumerated factor is a violation of the FEHA. (Gov. Code, 12940, subd. (j).) For purposes of the FEHA, harassment is defined as including, (A) Verbal harassment, e.g., epithets, derogatory comments or slurs on a basis enumerated in the Act; [] (B) Physical harassment, e.g., assault, impeding or blocking movement, or any physical interference with normal work or movement, when directed at an individual on a basis enumerated in the Act; [] (C) Visual forms of harassment, e.g., derogatory posters, cartoons, or drawings on a basis enumerated in the Act; or [] (D) Sexual favors, e.g., unwanted sexual advances which condition an employment benefit upon an exchange of sexual favors. (2 Cal. Code Regs., 7287.6, subd. (b)(1).)

Although plaintiffs complaint purported to allege a cause of action for sexual harassment, she did not raise that claim in the DFEH charge she filed in 2002. That omission is fatal to her claim. The purpose of filing a charge with the DFEH is to allow the DFEH to investigate and attempt to conciliate complaints of unlawful employment discrimination. (Gov. Code, 12930, 12963 et seq.) After receipt of a charge, if the DFEH fails to resolve the case or to file an accusation against the employer, it must notify the employee in writing of his or her right to file a civil action under the FEHA. (Id. 12965, subd. (b).) This notification is commonly referred to as a right-to-sue letter. (Okoli v. Lockheed Technical Operations Co. (1995) 36 Cal.App.4th 1607, 1613.) The plaintiff then has one year within which to file a civil action based upon the allegations she made in the DFEH charge. (Gov. Code, 12965, subd. (b).) The plaintiff must file the administrative charge before filing a civil suit based upon the FEHA. (Martin v. Lockheed Missiles & Space Co. (1994)29 Cal.App.4th 1718, 1724.) The failure to exhaust this administrative remedy is not a procedural defect; it is jurisdictional. (Ibid.) Furthermore, in order to exhaust administrative remedies as to a particular act made unlawful by the FEHA, the claimant must specify that act in the administrative complaint. That is because the very purpose of filing an administrative charge is to give the DFEH enough notice to permit its investigation and conciliation efforts. (Id. at p. 1728.)[1]

In the present case, plaintiffs 2002 DFEH charge alleged disparate treatment but not harassment. She cited the denial of technical training, a poor evaluation, and restriction from driving. But nothing in the charge would have prompted the DFEH to investigate whether plaintiff had been subjected to actionable harassment.

In her declaration opposing the summary judgment motion plaintiff noted that in early April 2001, while the crew was in the field, Meyer picked up an orange flag with a broken flag pole. Meyer handed the limp flag to Higginbotham and the three men--Meyer, Higginbotham, and Bennett--laughed at the suggestion that plaintiff should be the one to hand the flag to Fredricks, implying by the way Meyer was holding the flag that it resembled a limp penis. She also claimed that Bennett had once made a derogatory comment about women drivers and had referred to plaintiff as a mother hen. Even if this evidence were sufficient to support a sexual harassment cause of action generally, it is immaterial because neither that conduct, nor anything like it, was described in the 2002 administrative charge. If plaintiff found the conduct to be harassing, she could have filed another charge with the DFEH alleging as much. Since she did not, the trial court lacked jurisdiction to hear the sexual harassment cause of action in this lawsuit.

Plaintiff maintains that her 1989 DFEH charge somehow cures the failure to exhaust her administrative remedies in 2002. We fail to see how it could. It is undisputed that plaintiff filed a charge with the DFEH in 1989 alleging that she had been the subject of sexual harassment when she worked in Santa Barbara. According to that charge her coworkers had posted pictures of nude women in the work area, had asked plaintiff for dates, had cornered her and asked for a hug, and had made derogatory and condescending remarks about her and about women in general. Indeed, that conduct is the basis for the sexual harassment allegations in her third amended complaint. But the DFEH issued a right-to-sue letter in response to the 1989 charge and plaintiff never sued. To the extent plaintiff is attempting to resurrect the sexual harassment claim she made in the 1989 charge, she is barred by the one-year statute of limitations. (Gov. Code, 12965, subd. (b).)

Plaintiff argues that the continuing violation doctrine as defined by Richards, supra,26 Cal.4th 798, makes her claim of sexual harassment viable. That doctrine has no application here. The continuing violation doctrine is based upon the presumption that conduct which occurred outside the limitations period may be actionable if it is part of a pattern of violations that continue into the limitations period. Our Supreme Court has held that the doctrine applies if the employers unlawful actions are (1) sufficiently similar in kind . . . ; (2) have occurred with reasonable frequency; (3) and have not acquired a degree of permanence. (Id. at p. 823.) Thus, under Richards,an employee cannot indefinitely delay filing a lawsuit. The statute begins to run when the justification for delaying legal action no longer exists. (Id. at pp. 822-823.) In this case, there was no justification for delay. Indeed, plaintiff commenced and abandoned legal action on her sexual harassment claims 20 years ago. If any harassment occurred in Santa Barbara toward the end of the 1980s, it reached a state of permanence when plaintiff stopped working there. Accordingly, to the extent plaintiffs claims are based upon the conduct that occurred in Santa Barbara, the continuing violation doctrine does not apply and the claims are barred by the statute of limitations.

Plaintiff principally relies upon Accardi v. Superior Court (1993) 17 Cal.App.4th 341 (Accardi), in which a female police officer alleged she had been subjected to various forms of sexual harassment during her 11 years of employment with the police department. The alleged conduct included having untrue rumors spread about her, being singled out for unfavorable work assignments, and being subjected to various sexist remarks and sexual advances. The only conduct that occurred during the limitations period, however, involved her workers compensation and disability claims and the failure to reassign her to work details that had been assigned to other partially disabled officers. In reversing the trial courts ruling sustaining the defendants demurrer, the court of appeal concluded that the more recent acts, which had no overt sexual overtones, could be viewed as part of a decade long pattern of sexual harassment. (Id. at p. 350.)

Plaintiff maintains that Accardi supports her contention that the conduct alleged in her 2002 DFEH charge (refusal to give technical training, discriminatory performance standards, and negative performance review) could be construed as part of a continuing pattern of sexual harassment. But Accardi is inapplicable for several reasons. First, Accardi predated Richards and, therefore, did not consider the Richards permanence test. In fact, Richards rejected Accardis broad application of the continuing violation doctrine and adopted a more balanced analysis, adding the permanence factor to balance the employees interest in working out the dispute with the employers interest in preventing indefinite delays. (Richards, supra,26 Cal.4that pp. 820-823.)

Another reason Accardi does not apply is that Accardi reviewed the case following a demurrer sustained and, therefore, the court necessarily took an expansive view of the allegations, allowing that the evidence that fell outside the limitations period could be relevant to establish the discriminatory character of acts that were not time-barred. (Accardi, supra,17 Cal.App.4th at p. 351.) This case comes to us following summary judgment, where our review requires assessment of evidence submitted by both sides; the allegations of plaintiffs complaint are insufficient, standing alone, if defendant has submitted evidence to rebut them. (Code Civ. Proc., 437c, subd. (p)(2).)

Third, and most importantly, there was no allegation in Accardi,as there is in this case,that the plaintiff had failed to include a harassment allegation in her administrative charge. Thus, even if the allegedly harassing conduct that took place toward the end of the 1980s could tend to prove that the more recent conduct was part of a pattern of sexual harassment, since plaintiff did not make any such allegation in her 2002 DFEH charge, her claim is barred by her failure to exhaust her administrative remedy. We are satisfied that the trial court correctly concluded with regard to the sexual harassment cause of action that there is no triable issue of fact.

C.                 Gender Discrimination

Turning now to plaintiffs first cause of action for gender discrimination we note that McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 sets forth a three-part test for the trial of employment discrimination claims. The test reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially. Thus, by successive steps of increasingly narrow focus, the [McDonnell Douglas]test allows discrimination to be inferred from facts that create a reasonable likelihood of bias and are not satisfactorily explained. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354.) Under the first step, the plaintiff raises a presumption of discrimination by presenting a prima facie case, which typically requires evidence that the plaintiff was a member of a protected class, that she was performing competently in the position she held, that she suffered an adverse employment action, such as termination, demotion, or denial of an available job, and that some other circumstance suggests a discriminatory motive for the adverse action. (Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 112.) Under the second step, the employer may dispel the presumption of discrimination by articulating a legitimate, nondiscriminatory reason for the challenged action. (Ibid.) In the third and final step the plaintiff has the opportunity to attack the employers proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive. (Guz v. Bechtel National Inc., supra,at p. 356.)

In the summary judgment context, the employer, as the moving party, has the initial burden to present admissible evidence showing either that one or more elements of plaintiffs prima facie case is lacking or that the adverse employment action was based upon legitimate, nondiscriminatory factors. [Citations.] [] In meeting its initial burden the employer need not rely upon the premise that the plaintiff cannot demonstrate a prima facie case if the employer can set forth admissible evidence of its reasons, unrelated to unlawful discrimination, for the adverse employment action. (Hicks v. KNTV Television, Inc., supra, 160 Cal.App.4th at p. 1003.) [T]o avoid summary judgment, an employee claiming discrimination must offer substantial evidence that the employers stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination. (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1004-1005.) It is not sufficient for the employee to make a bare prima facie showing or simply to speculate as to discriminatory motive. (Id. at p. 1004.) Rather it is incumbent upon the employee to produce substantial responsive evidence demonstrating the existence of a material triable controversy as to pretext or discriminatory animus on the part of the employer. (University of Southern California v. Superior Court (1990) 222 Cal.App.3d 1028, 1039.) [S]peculation cannot be regarded as substantial responsive evidence. (Martin v. Lockheed Missles & Space Co., supra, 29 Cal.App.4th at p. 1735.)

1.                  Defendants Legitimate Nondiscriminatory Reasons for Its Actions

Plaintiff alleged in her complaint that defendant had subjected her to performance standards that were more onerous and burdensome than those applied to similarly situated male employees. Plaintiff claimed that she was required to pass four separate vehicle tests and numerous additional evaluations that were not required of similarly situated male employees and that on June 13, 2001, she was pretextually restricted from driving any state vehicles because she had hit a sign whereas a similarly situated male probationary employee was not prohibited from driving state vehicles after hitting a parked vehicle while backing into a parking space. Plaintiff also alleged that she was fully qualified for and performed the services as required to fulfill the obligations of her classification of Transportation Engineering Technician when she was terminated. Defendants evidence showed the opposite.

In its moving papers, defendant demonstrated that one major responsibility of all survey crew members was to safely drive all survey vehicles and that plaintiff never demonstrated her ability to do so. Higginbotham had observed plaintiff engage in unsafe practices while on foot and behind the wheel. Meyer described plaintiffs driving ability as shaky. Bennett observed her driving and told Higginbotham that when he made suggestions to plaintiff about her driving plaintiff would often become hostile and argumentative. Bennett later reported on plaintiffs erratic and dangerous driving and mentioned that plaintiff did not pay attention to her surroundings. And on June 13, 2001, plaintiff backed into a sign while parking one of defendants vehicles at a maintenance yard. Defendant also showed that plaintiff had a history of driving problems, having been restricted from driving when she worked in Santa Barbara. At one point, around 1988, a California Highway Patrol officer came to the Santa Barbara office to complain about her unsafe driving and failure to respond to the officers flashing lights and siren.

Defendant also submitted the deposition testimony of plaintiffs treating psychologist, in which the psychologist explained that by the time plaintiff started work on the survey crew in December 2000, her level of functioning with respect to interpersonal relations was seriously impaired and impairment of her ability to concentrate was severe. Plaintiff also had moderate disruptive conduct, moderately inappropriate or labile affect, and severe compulsive behavior.

In her discrimination cause of action, plaintiff had also alleged that defendant denied [her] advancement opportunities and material job benefits and withheld [from her] technical training it provided to similarly situated male employees. Her complaint related to Higginbothams refusal to train her on an instrument known as the T2000. Defendant demonstrated that at the time plaintiff requested training on the T2000 Higginbotham was under pressure to complete a road project in Salinas and did not have the time to train her. But defendant provided plaintiff with other technical training. For example, she was sent to a week-long Surveys Academy training in Sacramento in May 2001. She also was trained to hold the rod or prism pole, another survey instrument, which plaintiff admits is as important to the survey task as the T2000. Thus, while defendant does not dispute that it did not train plaintiff on the T2000 when she requested it, defendant did show that, during the approximately 17 weeks plaintiff was present and working with the Aptos survey crew, she received significant other training.

2.                  Plaintiffs Evidence

With respect to the alleged failure to train, plaintiff offered no evidence to show that she had been permanently denied training on the T2000 or that the failure to train her on that one particular instrument during the short time she worked on the crew adversely impacted her opportunity for advancement. She offered no evidence to show that the failure to train her on the T2000 had anything to do with her gender. Thus, plaintiff did not raise a triable issue on this point, failing to submit evidence that the alleged failure to train was either an adverse employment action or discriminatory.

As to the alleged discriminatory driving performance standards, plaintiff maintained that she had passed the road test in one survey vehicle during her third week on the crew but she did not show that she had demonstrated competence on all survey vehicles. As to Bennetts unfavorable reports, she maintained that he tended to worry and exaggerate, which does not implicate a discriminatory motive. Plaintiff did not dispute that she had hit the sign on June 13, 2001. (She insisted that she had only nudged it.) She argued, however, that Meyer, a probationary employee, had once hit a parked car when parallel parking, and that Bennett, too, had had an accident with a vehicle. But plaintiff did not dispute that she and these coworkers were not similarly situated in that neither of the coworkers had a record of driving irregularities or responded to correction, as plaintiff did, in a hostile and argumentative manner. Indeed, according to the written notice of rejection, it was not just plaintiffs lack of driving skill, but also her failure to demonstrate an acceptable attitude toward safety, that led to her discharge.

Other evidence plaintiff submitted included her allegation that Meyer told her that Bennett told him that Higginbotham told Bennett to give him written reports of instances of plaintiffs unsafe driving. Although the evidence contains several levels of hearsay, even if admissible it tends to support rather than refute defendants contention that plaintiff was discharged due to safety concerns. Plaintiff claims that Meyer also told her he thought she was being railroaded. Without more, this does not tend to show that defendant was discriminating against plaintiff on account of her gender.

Plaintiff offered her opinion that Fredricks and Higginbotham had decided that she was an unsafe driver and that she had an unacceptable attitude toward safety and safe working practices only after they decided to terminate her employment in the latter part of May 2001. To support her opinion, she claimed that there was no mention of either problem in the two page attachment to her May 23, 2001 probationary report. That is a misrepresentation. Higginbothams narrative, attached to the May 23, 2001 performance report, noted, Very seldom have I seen you driving any vehicle and I believe that the other crewmembers have given up suggesting that you drive. Therefore, you will be required to drive frequently on the job, and driving tests will be given to you, in each vehicle. He also noted that he had reviewed safety procedures with her and the manner in which he would warn her about possible dangers. The two times that I followed this procedure, while working in a potentially dangerous location, you appeared irritated. Higginbotham had instructed to the crew to watch her movements around traffic and, on one occasion while working near the fog line on the Cole Road project, an employee needed to tell you in a loud voice, due to traffic noise and impending danger, to use caution, face traffic, and to help look-out for your coworkers. You did not take this criticism well or in the manner which it was intended. Higginbotham concluded, There have been times when you have disagreed with decisions and policies and were argumentative, almost to the point of being insubordinate, in defending your opinion. Although I have noticed a decline in this type of behavior, you need to know that this type of response cannot be tolerated. If you have a disagreement with a decision or policy, please let me know and I will explain the proper procedure to express your disagreement. Thus, the record shows that plaintiffs performance report actually highlighted the problems that ultimately led to her discharge. There is no evidence to support plaintiffs allegation that her supervisors concocted their reasons for rejecting her from probation only after they decided to discharge her.

Finally, plaintiff stated that she was the only female assigned to work on a field survey crew and the only female hired in 10 years in the particular district in which she was employed. Plaintiff offered no other evidence to support this assertion but, more to the point, we fail to see how her hiring and assignment shows that defendant discriminated against her.

In short, defendant demonstrated legitimate, nondiscriminatory reasons for rejecting plaintiff from probation and plaintiff failed to raise a triable issue on the point.

D.                Retaliation

Finally, plaintiffs third cause of action alleged unlawful retaliation. To establish a prima facie case of retaliation plaintiff must show that she engaged in protected activity, that she was subjected to adverse employment action by her employer, and that there is a causal link between the two. (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 69.) That causal link is missing here.

In order to show a connection between plaintiffs protected conduct and her employers adverse actions, plaintiff has to show that the employer was aware that she had engaged in the protected activity. (Cohen v. Fred Meyer, Inc. (9th Cir. 1982) 686 F.2d 793, 796; Morgan v. Regents of University of California, supra,88 Cal.App.4th at p. 70.) The protected activity plaintiff alleged was her complaints to defendant about defendants discrimination and harassment and her prior DFEH complaints against defendant. Defendant showed that plaintiff had not complained to her supervisors or coworkers at the Aptos office about sexual harassment or discrimination and that none of them knew about the prior DFEH complaints. Higginbotham and Fredricks, the two employees who allegedly engaged in the retaliatory conduct, denied having known anything about plaintiffs prior DFEH complaints or the sexual harassment and retaliation she allegedly suffered during her first period of employment. There is no evidence that anyone who did know about her prior complaints against defendant had anything to do with her employment in Aptos.

Plaintiff admitted that none of the Aptos employees told her they knew about the DFEH complaints. Plaintiff alleged only that Higginbotham told her he resented her being assigned to his crew and thought she had been working the system. Whatever Higginbotham meant by the statement, one cannot reasonably infer from it that he knew about plaintiffs earlier DFEH complaints.

The only other evidence plaintiff submitted to contradict defendants showing that her Aptos coworkers did not know about her prior claims against defendant was the testimony of Bennett, which was that a foreman for a third-party construction company told Bennett to be careful what he did or said around plaintiff. According to the foreman, plaintiff had been involved in a sexual harassment suit against one of his companys workers who had said something to her like, Hey, cupcake, come here. Bennett could not recall if he had conveyed the foremans remarks to anyone else in the survey crew. Although this evidence shows that Bennett had been informed that plaintiff had sued someone for sexual harassment, it does not controvert defendants showing that its employees knew nothing about her prior claims against defendant.

In her declaration plaintiff made the more general allegation that Higginbotham and Bennett had been warned that she complained of sexual harassment in Santa Barbara and to watch out for her. Defendant objected to this statement (among others) on hearsay grounds. (Evid. Code, 1200.) Plaintiff does not argue that the statement is admissible. Rather, citing Demps v. San Francisco Housing Authority (2007) 149 Cal.App.4th 564 (Demps), plaintiff contends that defendant waived its objection by failing to obtain a definitive ruling on it. Defendant responds that the trial courts finding that plaintiffs declaration was mostly hearsay effectively sustained the objection and, therefore, excludes the statement from our review of the facts.

In a case arising from this court, the California Supreme Court presently has under review the question whether evidentiary objections are preserved for appeal if they are not expressly ruled upon at the time of decision on a summary judgment motion. (Reid v. Google, Inc. (2007) 155 Cal.App.4th 1342 (rev. granted Jan. 30, 2008, S158965).) Until we receive guidance from the California Supreme Court, the prevailing view in the summary judgment context appears to be that a trial court presented with timely evidentiary objections in proper form must expressly rule on the individual objections, and it if does not, the objections are deemed waived and the objected-to evidence included in the record. (Demps, supra,149 Cal.App.4th at p. 578; see, Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 68.)

We disagree with defendants assertion that the trial courts comment effectively sustained all of defendants hearsay objections. The comment--that the declaration contained mostly hearsay--does not identify that which the trial court considered and that which it did not. The trial court simply did not rule upon the individual objections. Under a literal application of Demps,therefore, the objections would all be forfeited. We have previously questioned the soundness of that approach. (See Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 711-712.) Here, however, it makes no difference, for even a holding that the objections were forfeited would not aid plaintiff. The undisputed source of plaintiffs assertion that Higginbotham and Bennett had been warned to watch out for her is Bennetts having been informed of her suit against a third party construction company. Since plaintiff had no evidence to show that the Aptos employees knew about her claims against defendant, which was the sole basis for her retaliation cause of action, plaintiff did not raise a triable issue on her retaliation cause of action.

IV.              Disposition

The judgment is affirmed.

Premo, J.

WE CONCUR:

Rushing, P.J.

Elia, J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

[1] Plaintiff does not attempt to show that her theories of recovery would be viable common law claims not subject to the exhaustion requirement. (Cf. Rojo v. Kliger (1990) 52 Cal.3d 65, 88.)