Bryant v. Sara Lee Corp.

Filed 2/17/09 Bryant v. Sara Lee Corp. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

I.

Introduction

This case involves allegations by several plaintiffs of racialharassment, discrimination, retaliation and infliction of emotional distress based on racial slurs made in the workplace. Although the court resolved most of the causes of action by summary judgment or adjudication, causes of action involving two of the plaintiffs for racial harassment under the Fair Employment and Housing Act[1] (FEHA) and intentional infliction of emotional distress were decided in defendants favor following jury trial.

Leo Bryant (Bryant) and Ronald Amey (Amey) seek reversal of the judgment following the jury trial on their claims for racial harassment and intentional infliction of emotional distress. Their primary claim with respect to the trial is that the court erred in excluding evidence under Evidence Code section 352 of offensive comments by their supervisor, respondent Robert Wyche (Wyche), made at other times, other locations, or about other protected groups. Bryant and Amey also contend the court erred by summarily adjudicating their causes of action for retaliation, discrimination in violation of public policy, and failure to prevent discrimination. The third plaintiff, Eric McKneely (McKneely) contends the court erred by granting summary judgment with respect to all the causes of action he alleged.

We shall affirm.

II.

Procedural Background

Bryant, Amey, McKneely and Dale Hanley[2] (Hanley) (collectively, plaintiffs) brought the underlying action against Sara Lee Corporation (Sara Lee), Sara Lee Bakery Group, Inc., Earthgrains Baking Companies, Inc. (Earthgrains),[3] Wyche and George Villareal (Villareal). As to the named corporate defendants, all plaintiffs alleged causes of action under the FEHA for racial discrimination, racial harassment, failure to prevent discrimination, and retaliation. They also alleged causes of action for racial harassment in violation of public policy and intentional infliction of emotional distress. The plaintiffs also alleged causes of action against Wyche and Villareal for harassment and retaliation under FEHA, as well as intentional infliction of emotional distress.

The court granted the defendants motion for summary judgment as to all causes of action against Villareal. The court also granted summary judgment against McKneely on all of his causes of action. Finally, with the exception of racial harassment under the FEHA and intentional infliction of emotional distress, the court granted summary adjudication of Bryants and Ameys remaining causes of action.

Sara Lee and Wyche then filed motions in limine to exclude certain categories of evidence at trial. The court granted the motions to exclude evidence of lawsuits or complaints of racial harassment or discrimination filed by individuals other than the plaintiffs, testimony or references to testimony of the plaintiffs in a different case against Sara Lee and Wyche, references to specific racial slurs and comments made by Wyche in the 1970s and 1990s, statements or testimony by Leo Montoya regarding ethnic slurs by Wyche, statements or testimony by Glen Lefort about a racial comment made by Wyche prior to Bryants and Ameys employment under Wyche, statements or testimony by employees about interactions with Wyche in depots other than Menlo Park or Redwood City or at times other than when Bryant and Amey worked under Wyche, and statements or testimony about actions or statements by Wyche that were not shared with [Bryant and Amey] during the period they worked under Wyche. The court granted Wyches motion to exclude all references or testimony about derogatory or insensitive comments made by Wyche or any other employee of the corporate defendants about persons who are members of ethnic groups, races, nationalities and protected classes different than [Bryants and Ameys] protected class of African-American.

The case proceeded to jury trial on the remaining two causes of action alleged by Bryant and Amey. The court ordered, as stipulated by the parties, that the trial on liability would be bifurcated from any trial on punitive damages. The jury found, by special verdict, that both Bryant and Amey had been harassed by Sara Lee and Wyche because of their race. However, the jury also found that the harassment was not so severe, widespread, or persistent that a reasonable African-American in [their] circumstances would have considered the work environment to be hostile or abusive.

The court denied Bryant and Ameys motion for new trial. This timely appeal followed.

III.

Motion For Summary Adjudication And Summary Judgment

Plaintiffs do not challenge the grant of summary judgment with respect to all claims alleged against Villarreal, summary judgment or adjudication of all three plaintiffs causes of action for racial discrimination in violation of public policy, or the dismissal at trial of all claims against Sara Lee Corporation. Plaintiffs challenge only the order granting summary judgment with respect to McNeely, and the summary adjudication of Bryants and Ameys causes of action for retaliation, race discrimination and failure to prevent discrimination.

With respect to McNeelys causes of action for race discrimination, failure to prevent discrimination, and retaliation, the court concluded there was no triable issue that McNeely had been subjected to any adverse employment action, or that any of the actions of which he complained were taken for a discriminatory or retaliatory reason. The court further concluded that although McNeely had been exposed to some racially insensitive remarks, the evidence was insufficient to create a triable issue that the racial harassment to which he was subjected was sufficiently severe and pervasive to constitute a hostile work environment, because the incidents of harassment were few and isolated and much less severe than those to which Bryant and Amey had been subjected.

With respect to Bryant and Amey, the court granted summary adjudication of their racial discrimination, failure to prevent discrimination, and retaliation claims on the ground that there was no triable issue of fact that Bryant or Amey had been subjected to an adverse employment action, nor any triable issue that the actions of which they complained were taken for a racially discriminatory or retaliatory reason.[4]

We shall summarize the principles of law applicable to each cause of action and summarize the relevant facts in the context of our analysis of each contention on appeal.

1. McNeelys Cause of Action for a Racially Hostile Work Environment.

The court carefully reviewed the evidence of racial harassment presented by each plaintiff, and concluded that McNeely, who had claimed much less frequent exposure to harassment by Wyche or others, and exposure to less severe conduct than either Bryant or Amey, had failed to present evidence to create a triable issue that the harassment created a racially hostile or abusive work environment. McNeely contends this ruling was error, and that the court should have allowed his cause of action for a racially hostile work environment to go to trial together with that of Bryant and Amey.

a. Summary of Relevant Legal Principles.

Harassment on the basis of race is explicitly prohibited under the FEHA. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 129 (Aguilar); Etter v. Veriflo Corp. (1998) 67 Cal.App.4th 457, 464 (Etter); Gov. Code,  12940, subd. (g).) Harassment in the workplace also may constitute employment discrimination under title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.), the federal counterpart of the FEHA, and title VII cases may be considered in interpreting the FEHA. (Etter, supra, at pp. 464-465.) The California Code of Regulations defines harassment to include  [v]erbal harassment, e.g., epithets, derogatory comments or slurs on a basis enumerated in the [FEHA].  (Aguilar, supra, at p. 129.) However,  [d]iscourtesy or rudeness should not be confused with racial harassment, and . . . a lack of racial sensitivity does not, alone, amount to actionable harassment.  (Faragher v. Boca Raton (1998) 524 U.S. 775, 787 (Faragher), citing 1 Lindemann & Grossman, Employment Discrimination Law (3d ed. 1996)  349.)

Even where some racial harassment is found, it does not rise to a violation of the FEHA or title VII unless the racially harassing behavior resulted in a hostile work environment, both subjectively and objectively. (Faragher, supra, 524 U.S. at p. 786.) Racial harassment violates the FEHA when it is    sufficiently severe or pervasive to alter the conditions of the victims employment.    (Etter, supra, 67 Cal.App.4th at p. 465, citing Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, 517 (Beyda).) Neither  stray remarks nor sporadic comments are sufficient to create a hostile environment. (See Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 809-810; Etter, at p. 464.)  [N]ot all workplace conduct that may be described as harassment affects a term, condition, or privilege of employment . . . . [Citations.] For . . . harassment to be actionable, it must be sufficiently severe or pervasive to alter the conditions of [the victims] employment and create an abusive working environment. [Citation.] [Citation.] (Aguilar, supra,21 Cal.4th at p. 130, citing Meritor Savings Bank v. Vinson (1986) 477 U.S. 57, 67.) Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environmentan environment that a reasonable person would find hostile or abusiveis beyond Title VIIs purview. Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victims employment . . . . (Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17, 21-22 (Harris).)

A determination regarding whether an environment is hostile requires looking at all 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 employees work performance. (Harris, supra,510 U.S. at p. 23.) The factors that can be considered in evaluating the totality of the circumstances are: (1) the nature of the unwelcome . . . acts or [words] . . .; (2) the frequency of the offensive encounters; (3) the total number of days over which all of the offensive conduct occurs; and (4) the context in which the . . . harassing conduct occurred. [Citation.] (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 610.)

Summary judgment may be granted on a cause of action for racial harassment under the FEHA if the plaintiffs factual showing would not permit a reasonable trier of fact to find the defendants conduct was sufficiently severe or pervasive to create a hostile work environment. (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 291 (Lyle).)

b. Analysis of Racial Harassment Claimed by McNeely.

The undisputed facts with respect to the racial harassment to which McNeely was subjected were as follows:

On one occasion McNeely overheard Wyche refer to an Asian employee as my Chinaman friend.[5] This was the only racial slur he could recall hearing Wyche use. McNeely also testified that he often heard Wyche tell racial jokes, but could not recall any specific jokes, and admitted the jokes did not interfere with his ability to do his job. Wyche also referred to African-American employees as brothers or you brothers. Although McNeelys reaction to a white person calling African-Americans brothers or you brothers would depend on the context, McNeely did not recall being offended at the time.[6] McNeely was offended, however, when Wyche once told McNeely about having sex with a black woman, and that she was surprised that he was well endowed.

In addition to the foregoing events involving Wyche, McNeely testified that before he started to work under Wyche, his supervisor, Darryl Zimmeliken, told jokes about a variety of racial groups, including African-Americans, on at least two occasions, but McNeely could not recall any details of the jokes.

McNeely argues the evidence of Wyches my little Chinaman comment, alone, was sufficient to create a triable issue as to the severity and pervasiveness of the racial harassment to which McNeely was subjected. A single incident, if it is sufficiently severe, may support a hostile work environment claim, but  the required showing of severity or seriousness of the harassing conduct varies inversely with the pervasiveness or frequency of the conduct. [Citations.] If a single incident can ever suffice to support a hostile work environment claim, the incident must be extremely severe. (Brooks v. City of San Mateo (9th Cir. 2000) 229 F.3d 917, 926.)  [T]he objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiffs position . . . .  (Lyle, supra, 38 Cal.4th at p. 283.) Also relevant is whether the offensive comments were directed at the plaintiff, or were directed at others but witnessed by the plaintiff. (Id. at p. 285.) If the derogatory comments did not involve plaintiff, [he is] obligated to set forth specific facts from which a reasonable trier of fact could find the conduct permeated [his] direct workplace environment and was  pervasive and destructive.   (Id. at p. 289.) McNeely did not met this burden because Wyches demeaning remark was neither directed at McNeely, nor even against the same racial group to which McNeely belonged. Nor did he present specific facts that, despite not being directed at him, the reference to my little Chinaman permeated his workplace, because McNeely himself was exposed to this reference only once.

McNeely argues that even if the my little Chinaman reference were insufficient by itself, it could create a triable issue as to the severity and pervasiveness of racial harassment when considered together with his testimony that Wyche repeatedly told racial jokes. Yet, McNeely could not recall any of the details of these jokes, or even how often African-Americans were the butt of the joke. Without more specificity, a trier of fact would be unable to assess the severity of the racial jokes, much less draw an inference that these jokes were objectively or subjectively offensive. (See Aguilar, supra, 21 Cal.4th at p. 130 [plaintiff must establish that harassment was severe or pervasive enough to create an objectively and subjectively hostile or abusive work environment].) For the same reason, McNeelys testimony that Darryl Zimmeliken often told unspecified racial jokes is similarly too vague and insufficient to create a triable issue of fact that the racial harassment to which McNeely was subjected created a racially hostile or abusive work environment.

As for the use of the terms brothers or you brothers, McNeely himself admitted that he did not subjectively find the use of this offensive. [I]f the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victims employment . . . . (Harris, supra,510 U.S. at pp. 21-22.)

This leaves Wyches comment to McNeely about having sex with an African-American woman, and her surprise that he was well endowed. We agree that the remark, although not without ambiguity, was objectively offensive at least to the extent that it could be construed impliedly to invoke a racial stereotype about the size of genitalia, and was certainly boorishly boastful. This, however, was the only time Wyche subjected McNeely to this type of boasting about his sexual exploits. This single isolated incident was not so severe or pervasive that a reasonable trier of fact could conclude that it created a racially hostile or abusive work environment.

McNeely also tried to bolster the evidence of racial harassment by offering his own separate statement of facts in which he enumerated the additional incidents of racial harassment to which Amey and Bryant claimed they had been exposed, and citing Bryants and Ameys testimony. The trial court correctly concluded that in the absence of some evidence that McNeely had personally had been exposed to this additional conduct, or that it occurred in his presence, or that he was even aware of it, this evidence did not create a triable issue that McNeely had been subjected to severe and pervasive racial harassment. (See Beyda, supra, 65 Cal.App.4th at p. 519 [if the plaintiff neither witnesses the other incidents nor knows that they occurred, those incidents cannot affect his or her perception of the hostility of the work environment. . . . A reasonable person would not perceive a work environment to be objectively hostile or abusive based on conduct toward others of which she is unaware].)

McNeelys testimony that, after he transferred to the Benicia depot, he often heard other route sales representatives jokingly use racial slurs, including my nigga, homey, and boy, failed to create a triable issue for a different reason. Although McNeely unequivocally testified that he was offended by these words, he admitted that he never told his coworkers that he found these words offensive. Nor did he complain about this conduct to anyone in management, or the union, before filing his administrative complaint with the Department of Fair Employment and Housing. An employer is strictly liable for harassment committed by its agents or supervisors, but is liable for harassment committed by its other employees only if it fails to take immediate and appropriate corrective action when reasonably made aware of the situation. (Jones v. Department of Corrections & Rehabilitation (2007) 152 Cal.App.4th 1367, 1377.) Since McNeely admitted he never complained to his coworkers, his union, or anyone in management about these comments, and presented no other evidence that his employer should have been aware of this conduct, or was on notice that this conduct was occurring, the evidence of these racially offensive comments made by his coworkers also was insufficient to create a triable issue that McNeely was subjected to severe and pervasive racial harassment.

For the foregoing reasons we conclude that, when considered in light of the totality of the circumstances, a reasonable jury could not conclude, based on the undisputed facts, that the racial harassment to which McNeely was subjected was sufficiently severe and pervasive to constitute a hostile work environment.[7]

2. Adverse Action in Retaliation for Engaging in Protected Activity.

Plaintiffs next contend triable issues of fact existed that each had been subjected to an adverse employment action in response to their protected complaints about racial discrimination. The term adverse action, does not appear in the language of the FEHA or in title VII, but [it] has become a familiar shorthand expression referring to the kind, nature, or degree of adverse action against an employee that will support a cause of action under a relevant provision of an employment discrimination statute. (Yanowitz v. LOreal USA, Inc. (2005) 36 Cal.4th 1028, 1049 (Yanowitz).

None of the plaintiffs were formally disciplined, demoted, or involuntarily transferred. Instead, they complained of a variety of other actions that they alleged were taken against them either because of their race, or in retaliation for engaging in protected activity. Although an adverse employment action is a necessary element of both a cause of action for retaliation and for race discrimination under the FEHA, plaintiffs argument specifically challenges the courts determination that the undisputed facts established they had not been subject to any adverse action with respect to their cause of action for retaliation.

Preliminarily, we note that despite plaintiffs conclusory assertion that each of the [plaintiffs] allege a series of discriminatory acts that when considered collectively constitutive adverse employment action (italics added), they present supporting argument and citation to the evidence they contend created a triable issue of fact only with respect to Amey and Bryant. Although we review de novo an order granting summary judgment or adjudication, that does not mean we engage in an analysis of the summary judgment motion independent of the arguments made by plaintiffs in their opening brief because, even on review of a summary judgment, [t]he appellant has the burden of showing error occurred. (Byars v. SCME Mortgage Bankers, Inc. (2003) 109 Cal.App.4th 1134, 1140.) [D]e novo review does not obligate us to cull the record for the benefit of the appellant in order to attempt to uncover the requisite triable issues. As with an appeal from any judgment, it is the appellants responsibility to affirmatively demonstrate error and, therefore, to point out the triable issues the appellant claims are present by citation to the record and any supporting authority. In other words, review is limited to issues which have been adequately raised and briefed. (Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 116 (Lewis).) When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as [forfeit]ed. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 (Badie).) Adherence to this rule is not only necessary in light of plaintiffs burden to demonstrate error on appeal (see Lewis, at p. 116), it is also an issue of fairness to defendants, who, in the absence of a specific argument and identification of the evidence McNeely contends created a triable issue of fact, are deprived of a reasonable opportunity to respond.[8] We therefore deem any contention that triable issues of fact existed on the issue of adverse action with respect to McNeely to have been waived or abandoned. (Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 710; see also Dills v. Redwoods Associates, Ltd. (1994) 28 Cal.App.4th 888, 890, fn. 1 [court will not develop arguments on appellants behalf].)

a. Summary of Relevant Legal Principles.

The same burden-shifting analysis that applies to a FEHA claim for discrimination applies to a claim for retaliation under Government Code section 12940, subdivision (h). (Yanowitz, supra, 36 Cal.4th at p. 1042.) The plaintiff establishes a prima facie case for retaliation by showing (1) he or she engaged in a protected activity,[9] (2) the employee suffered an adverse employment action; and (3) a causal link exists between the protected activity and the employers action. (Ibid; see also McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 386 (McRae).)

The standard for determining whether an employee has been subjected to an adverse action is objective. The action need not take the form of a termination, demotion, or reduction in pay, but any intermediate change must be reasonably likely to adversely and materially affect an employees job performance or opportunity for advancement in his or her career. (Yanowitz,supra, 36 Cal.4th at p. 1054.) 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, but adverse treatment that is reasonably likely to impair a reasonable employees job performance or prospects for advancement or promotion falls within the reach of the FEHA. (Id. at pp. 1054-1055, italics added.) A change that is merely contrary to the employees interests or not to the employees liking is insufficient. (Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1455.)

[I]t also is true that in many cases, the employee is affected by a series of employment actions, at least some of which might not, in and of themselves, constitute a material change in the terms or conditions of employment. In such cases, it is appropriate to consider the plaintiffs allegations collectively under a totality of the circumstances approach. There is no requirement that an employers retaliatory acts constitute one swift blow, rather than a series of subtle, yet damaging, injuries.  (McRae, supra, 142 Cal.App.4th at pp. 387-388, quoting Yanowitz, supra, 36 Cal.4th at p. 1055.)

An employee may satisfy his initial burden of showing a causal link between the claimed adverse action and the employees protected activity by producing evidence of nothing more than the employers knowledge that the employee engaged in protected activities and the proximity in time between the protected action and the allegedly retaliatory employment decision. (McRae, supra, 142 Cal.App.4th at p. 388.) The burden then shifts to the employer to provide substantial responsive evidence showing a legitimate, nonretaliatory reason for the adverse employment action. (Ibid.) If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation   drops out of the picture,   and the burden shifts back to the employee to prove intentional retaliation. [Citation.] (Yanowitz, supra, 36 Cal.4th at p. 1042.)  The plaintiff must have the opportunity to attack the employers proffered reasons as pretexts for discrimination [or retaliation], or to offer any other evidence of discriminatory [or retaliatory] motive. The plaintiffs burden is to prove, by competent evidence, that the employers proffered justification is mere pretext; i.e., that the presumptively valid reason for the employers action was in fact a coverup. (McRae, supra, at p. 388.)  A pretext for discrimination means more than an unusual act; it means something worse than a business error; pretext means deceit used to cover ones tracks. [Citation.] . . . [T]he overall correctness or desirability of the reasons proffered is not relevant. . . . [Citation.]  (Grube v. Lau Industries, Inc. (2001) 257 F.3d 723, 730.) It is not enough for the plaintiff to show the employers reasons were mistaken or unwise, instead the plaintiff   must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions   in the proffered legitimate reasons that a reasonable factfinder could conclude that the stated reasons are not credible, and that the employers true motive was retaliatory. (McRae, supra, at pp. 388-389.) Summary judgment is appropriate if, upon consideration of all the circumstances, there is no triable issue that the employee was subjected to adverse action, or that the employers actual motive was retaliatory. (Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 150.)

Before analyzing the specific evidence that Bryant and Amey contend created a triable issue of fact with respect to their respective causes of action for retaliation, we also note that the motion for summary adjudication was made not only on the ground that the undisputed facts established that neither had been subjected to an adverse action, but also on the grounds that plaintiffs could not demonstrate a causal link between the adverse actions and protected activity, because defendants offered evidence of legitimate business reasons for the complained-of actions, and plaintiffs did not meet their burden of presenting evidence that these reasons were pretextual, or any other evidence that the actual motive was retaliatory. Plaintiffs do not contend they had an inadequate opportunity to address this alternative legal ground for summary adjudication, and we may affirm the judgment on any correct legal ground presented. (CaliforniaSchool of Culinary Arts v. Lujan (2003) 112 Cal.App.4th 16, 22.) Thus, even if, as Bryant and Amey contend, the court erred in summarily adjudicating their cause of action for retaliation because a triable issue of fact existed on the issue whether they had been subjected to an adverse action, we may uphold the summary adjudication order on the alternative ground that, assuming arguendo they engaged in protected activity and were subjected to adverse action, defendants offered evidence of legitimate business reasons for these actions, and plaintiffs failed to present sufficient evidence from which a reasonable trier of fact could conclude that these reasons were pretextual, and that the actual motive was retaliatory.

b. Analysis of Ameys and Bryants Evidence of Adverse Action in Retaliation for Engaging Protected Activity.

Bryant and Amey contended that they engaged in protected activity based upon the undisputed fact that in July 2001, Bryant complained to the human resources department that his immediate supervisor, Chris Ferrante, was harassing him and Amey because of their race and Amey participated as a witness in the investigation of Bryants complaint. A human resources manager held a meeting with Bryant, Wyche and Ferrante, and Bryant stated that, as long as there were no repercussions, he felt his concerns had been addressed. In 2004, when Bryant was assigned to the San Francisco depot, he told his new supervisor, Villarreal, that he was glad to be working for Villarreal and that he no longer worked for Wyche, because Wyche was racist. We assume arguendo that the foregoing facts were sufficient to meet plaintiffs burden to show they engaged in protected activity. The remaining question is whether Bryant or Amey presented any evidence to create a triable issue of fact that they were subjected to any adverse action in retaliation for engaging in this activity.

On appeal Bryant contends the following evidence created a triable issue of fact that he had been subjected to adverse action in retaliation for engaging in this protected activity:[10]

(1) In 2002, Wyche asked Bryant not to bid on an open route that was being temporarily serviced by a non-African-American coworker, Gert Visser. The terms of employment, including route assignments, were governed by a collective bargaining agreement. Route sales representatives (RSRs) had the right to bid on open routes, and assignments of routes were based on seniority. Bryant admitted that he knew he had the right to disregard Wyches request and bid on the route, but did not exercise that right because he feared Wyche might retaliate.

An adverse action must consist of some change in an employees working condition that is reasonably likely to adversely and materially affect [his] job performance or opportunity for advancement . . . . (Yanowitz, supra, 36 Cal.4th at p. 1054.) The decision to bid or not was Bryants, not Wyches, and his decision to accede to Wyches request did not result in a change, but rather in the continuation of the status quo. Bryants subjective fear that Wyche might retaliate against him if he refused to comply with this request is simply too speculative to convert this request and Bryants decision to accede to it into an adverse employment action.

In any event, even if we were to assume arguendo that asking Bryant not to bid on the route constituted an adverse action, Bryant himself testified to the business reason for Wyches request: Wyche wanted Visser to continue running the route because Visser was already doing a good job. Bryant offered no evidence that Visser was not already doing a good job, or any other direct or circumstantial evidence that Wyches request was actually made for the purpose of retaliating against Bryant for the 2001 complaint about Ferrante. The mere fact that Wyches request was proximate in time to Bryants 2001 complaint may have been sufficient to establish a causal link for the purpose of a prima facie case of retaliation, but, in the face of the proffered evidence of a nonretaliatory reason for the request, proximity in time is insufficient, by itself, to create an inference that the stated reason is pretextual, or that the real reason for the request was to retaliate for engaging in the claimed protected activity. (McRae, supra, 142 Cal.App.4th at p. 388.)

(2) Bryant also contends he was subjected to adverse action when, in 2004, his route was eliminated by Project Eureka and, after Bryant exercised his right to bid on a new route, Villarreal restructured it by taking away the Market Street Safeway stop, and giving it to Lee Kong. Bryant asserts a triable issue of fact existed that this constituted an adverse action because Bryant submitted evidence that once the commission guarantee expired he lost $200 to $300 per week as a result of this change, and Villarreal himself acknowledged that this change could have resulted in a loss of commissions to Bryant.

If Villarreals decision to remove the Market Street Safeway from Bryants route resulted in a reduction in compensation, this change would qualify as a materially adverse employment action. Defendants, however, also submitted evidence of a business reason for Villarreals decision:

In 2004, in response to decreasing revenue and increased labor costs, Sara Lee implemented Project Eureka, a reorganization of all delivery routes in Northern California. Project Eureka eliminated some routes, and changed many. When these changes resulted in more than 50 percent of the sales volume being shifted to new accounts that were not on the route prior to the reorganization, the incumbent RSR could use his or her seniority to bump a less senior RSR. After the bumping process, any employee could bid on any open route. When a new assigned route resulted in a net reduction in sales or commission, the RSR was provided a commission guarantee. Bryants route was eliminated as a result of Project Eureka, but he bid on a new route and was awarded his first choice. Shortly thereafter Villarreal exercised his power to further restructure Bryants route to balance the workload and maintain effective customer service. Villarreal testified that Bryants route had three Safeway stops. One had to be removed because he had too many majors on his route, and the business was suffering, because he couldnt adequately service what he had. Villarreal elaborated on the factors he considered when he restructured the route. He explained that he evaluated how I can geographically arrange routes, and then I look at dollar volumes, and then I look at selling expense, am I going to save selling expense, which is overtime in a restructure, and I felt that I could, and I felt that the route that I put [Bryants former Safeway stop] onto was the one that was closest to the Market Street Safeway. The foregoing evidence met defendants burden to present a legitimate nonretaliatory business reason for the action.

In response, Bryant failed to present any evidence that the stated reason for this decision was pretextual, or that the actual motive was retaliatory or discriminatory. He submitted his own testimony that Villarreal gave him a different explanation: He told Bryant that he gave the Market Street Safeway stop to Lee Kong because Kong did not have enough work. Villarreals explanation to Bryant does not support an inference that Villarreals testimony as to the business reasons for removing the stop from Bryants route was false or a pretext. To the contrary, Villarreals statement is entirely consistent with his explanation that he restructured Bryants route because Bryant had too many major stops to handle in an efficient, cost-effective manner. By removing the stop and giving it to Kong, whom Villarreal felt did not have enough work, Villarreal achieved his goal of balancing the work load and improving customer service.

In an effort to show Villarreals stated reasons were pretextual, Bryant also relied on his own testimony that if Kong really had wanted Bryants route, he could have, and should have, bid on it. The fact that Kong could have bid for Bryants route was immaterial, because Villarreal did not testify he gave the stop to Kong because Kong wanted it, but rather because Villarreal had determined Bryants route as restructured by Project Eureka had too many major stops for any one person to handle. Nor did Bryants testimony that Villarreal could have accomplished the same goal by removing a different Safeway from his route create an inference that Villarreals stated reasons were pretextual. Bryants belief that there were alternative ways to solve the problem that he had too many major stops, and that Lee Kong did not have enough work, does not raise any inference that the problem Villarreal was trying to address did not exist, or that removal of the Market Street Safeway was not one way to address this legitimate business problem. (See McRae, supra, 142 Cal.App.4th at p. 397 [employees testimony and argument that her employer had other means of addressing the problem it identified in its stated reasons for a transfer is insufficient to show that the reasons for the transfer were pretextual].)

(3) Bryant also asserts he was subjected to adverse action when, after the removal of the Market Street Safeway from his route, Villarreal also told him he no longer had the Marina Middle School account. Defendants submitted evidence of a legitimate nonretaliatory reason for this action: Villarreal testified that the Marina Middle School closed its kitchen and shifted its kitchen operations to a different school.[11] Bryant attempted to raise an inference that this stated reason was false by submitting his own declaration that, after Villarreal told him that he no longer had the Marina Middle School account, he saw Dale Hanley, another RSR and former plaintiff in this case, who had been making the actual deliveries to Marina Middle School on Bryants behalf, receive bread and that from what [Bryant] saw he concluded Hanley had been given the account. This declaration did not create a triable issue of fact because it stated nothing more than Bryants belief, opinion, or speculation that the bread he saw Hanley picking up was for delivery to the Marina Middle School. Defendants objected to it on this ground, and although the trial court did not rule on the objection, defendants renew it on appeal, and we find it meritorious. (See McRae, supra, 142 Cal.App.4th at p. 396 [employees theory, speculation or personal belief unsupported by competent evidence is not substantial evidence of pretext].) Moreover, even if Bryants speculation were correct that the Marina Middle school still ordered bread, and that Hanley picked it up, the delivery would have been to a site that was not on Bryants route, since Villarreal testified that the Marina Middle School closed its kitchens and shifted operations to a different school.

The evidence that Amey had been subjected to adverse action in retaliation for opposing racially discriminatory practices also was insufficient to create a triable issue of fact that he was subjected to adverse action, or that any adverse action was taken in retaliation for engaging in protected activity. The evidence Amey identifies on appeal as creating a triable issue of fact is as follows:

(1) Wyche dissuaded Amey from bidding on the same open route temporarily serviced by Gert Visser that Bryant also refrained from bidding on. For the reasons we have already stated, this was a mere request, not an adverse action, and in any event, Amey, like Bryant failed to present any evidence that the stated reason for this request was pretextual, or that the actual motive was retaliatory.

(2) Wyche actively discouraged overtime and would even force Amey to work uncompensated overtime by various means, including punching Amey out before he arrived back at the depot. Merely exhorting that employees work efficiently so as not to incur overtime does not constitute an adverse action, because it is not reasonably likely to adversely and materially affect an employees job performance or opportunity for advancement . . . . (Yanowitz, supra, 36 Cal.4th at p. 1054.) To the contrary, this type of feedback concerning management expectations provides guidelines for improvement of performance. But, to the extent that Wyche may have actually required an employee to work uncompensated overtime, his action necessarily adversely affected a material term of employment, because it denied pay for hours worked.

Nonetheless, Amey failed to create a triable issue that Wyche discouraged overtime in retaliation for Ameys claimed protected activity. Defendants presented evidence of a nonretaliatory business reason for discouraging overtime, or keeping overtime to a minimum, i.e., to minimize the delivery cost. Defendants submitted testimony that, although bread costs little to produce, the costs of delivery are substantial. Therefore, to be profitable, the delivery system must be efficient, and labor costs, especially overtime pay, must be minimized. If an RSRs overtime hours were too high, stops would likely be removed from the route. The need to avoid or minimize overtime applied to all RSRs. This was a problem for everybody, [b]lacks and whites. Amey himself recognized this business reason for keeping overtime to a minimum when he testified the route he worked at the time of the deposition allowed him more freely to work overtime because the sales volume justified the increased overtime costs.

In the face of this evidence of a business reason for Wyches actions and policy regarding overtime, Amey could not rely solely upon proximity in time to his alleged protected activity to raise an inference of retaliatory intent. (McRae, supra, 142 Cal.App.4th at p. 388.) Instead, he had to come forward with some other direct or circumstantial evidence of such intent, and he did not. No doubt if Wyche, as Amey claimed, went beyond urging employees to complete their work efficiently, to actually requiring them to work additional hours without compensation, his actions violated state and federal wage and hour laws. Although we do not condone such actions, and those overtime policies might subject Wyche or Sara Lee to sanction under other laws, that the adverse action violated some other labor law does not support an inference that his motive was proscribed by the FEHA, i.e., that Wyche took the action in retaliation for Amey engaging in the protected activity of being a witness in connection with Bryants 2001 complaint against Ferrante.[12]

(3) The remaining evidence Amey contends created a triable issue of fact on the issue of adverse action consists of his testimony that Ferrante, who was his supervisor, scrutinized his work too closely, did not help him in ways Amey never specified, gave Amey too much excess bread to sell, and criticized him when he was unable to sell it. This evidence failed to create a triable issue of fact that Amey had been subjected to an adverse action, because it consists of nothing more than the type of trivial slights or annoyance that are part of the normal working relationship. It is the job of a supervisor to scrutinize the performance of a subordinate, and not uncommon for a subordinate to feel over-scrutinized or micromanaged. Although Amey no doubt was annoyed that he did not get the help he felt he needed, and was upset by Ferrantes criticism that he failed to sell the excess bread, Amey did not offer any evidence that Ferrante formally disciplined him or negatively evaluated his performance, or did anything other than provide him with feedback to improve his performance. In the absence of some consequence affecting Ameys ability to perform his job or opportunity for advancement, these typical and normal supervisory actions do not rise to the level of a materially adverse action, because [t]he employer and the public have a legitimate interest in efficient, cost-effective, and high-quality work. Employers need to be able to manage employees without fear that routine employment decisions, or attempts at improving employee performance, will lead to litigation. Employees themselves have an interest in learning if their work habits are substandard, particularly if they wish to advance in their professions. (McRae, supra, 142 Cal.App.4th at p. 387.)  If every minor change in working conditions or trivial action were a materially adverse action then any action that an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit.   (Id. at p. 386.)

Finally, Amey and Bryant both assert that creation of a hostile work environment may also constitute an adverse employment action in a retaliation case. (See, e.g., Yanowitz, supra, 36 Cal.4th at p.1056, fn. 16 [ workplace harassment, if sufficiently severe or pervasive, may in and of itself constitute an adverse employment action sufficient to satisfy the second prong of the prima facie case for . . . retaliation cases  (italics added)].) They assert that because the court found they presented sufficient evidence to create an issue of fact that Bryant and Amey were subjected to severe and pervasive racial harassment, this same evidence must also have been sufficient to create a triable issue that they were subjected to adverse action for the purpose of their retaliation claim. We need not decide whether the court erred by not allowing Bryant and Amey to proceed with the retaliation claim based upon the theory that the adverse action they suffered in retaliation for their protected activity was severe and pervasive racial harassment, because any error would be harmless: The jury, after considering all of the evidence in the context of their racial harassment cause of action, determined that Bryant and Amey had not been subjected to severe and pervasive harassment. Therefore, the jury also would necessarily have found that the alleged harassment did not constitute adverse action in the context of cause of action for retaliation.[13]

3. Racial Discrimination.

Bryant and Amey next contend that the court also erred in granting summary judgment or adjudication of their cause of action for racial discrimination.[14] To prove discrimination, the plaintiff must provide evidence that (1) he was a member of a protected class, (2) he . . . was performing competently in the position she held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355 (Guz), italics added.) If the employee establishes a prima facie case, the employer is required to offer a legitimate business reason for the adverse employment action. Once the employer sets forth a nondiscriminatory reason for the decision, the burden shifts to the plaintiff to produce  substantial responsive evidence that the employers showing was untrue or pretextual. (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1735; Slatkin v. University of Redlands (2001) 88 Cal.App.4th 1147, 1156; see also Guz, supra, at p. 357.) [A]n employer is entitled to summary judgment if, considering the employers innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that the employers actual motive was discriminatory. (Guz, at p. 361, fn. omitted.)

Bryants and Ameys racial discrimination claims were based upon the same alleged adverse actions as the retaliation claims. They do not make any argument in the context of the racial discrimination claim with respect to the existence of triable issues that they were subjected to any adverse action we have not already addressed. Nor do they identify any other circumstantial evidence that defendants stated business reasons were false, pretextual or racially discriminatory. Instead, they contend that they created a triable issue of fact by presenting evidence of racially discriminatory remarks that constituted direct evidence that defendants acted with racially discriminatory intent.

Direct evidence of discriminatory intent is  evidence which, if believed, proves the fact . . . without inference or presumption.  (Godwin v. Hunt Wesson, Inc. (9th Cir. 1998) 150 F.3d 1217, 1221.) A plaintiff may create a triable issue of fact regarding discriminatory intent either by circumstantial evidence, such as a showing that an employers proffered reasons are false, or by direct evidence. To constitute direct evidence of discriminatory intent racist comments made in the workplace must be  1) related [to the protected class of persons of which the plaintiff is a member]; 2) proximate in time to the [complained-of adverse employment decision]; 3) made by an individual with authority over the employment decision at issue [or by a person likely to influence the decisionmaker]; and 4) related to the employment decision at issue.  (Rubinstein v. Administrators of Tulane Educ. Fund (5th Cir. 2000) 218 F.3d 392, 401 (Rubenstein); see also Cone v. Longmont United Hosp. Assn (10th Cir. 1994) 14 F.3d 526, 531.) It is not essential that the discriminatory remark be made  in the direct context  of the adverse action, but the plaintiff must demonstrate some nexus between the racist remark and the alleged discriminatory adverse action. (Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S. 133, 152.) Comments that are  vague and remote in time  are insufficient to constitute direct evidence of discriminatory intent. (Brown v. CSC Logic, Inc. (5th Cir. 1996) 82 F.3d 651, 655-656.)

Plaintiffs contend the declaration of Leo Montoya that they submitted in opposition to defendants motions constituted direct evidence that the adverse actions of which they complained were made with racially discriminatory intent. Montoya declared that he had worked as an RSR under the direct supervision of Wyche from 1989-1991. During that time, Montoya heard Wyche use the word nigger on at least five occasions. He also heard Wyche use the words chink, gook and wetback. Wyche used these epithets to refer to drivers from competing companies, customers and fellow employees.

Montoya also worked under Villarreal in the late 1990s. Once, Villarreal stated in Montoyas presence that he wanted to get rid of African American supervisor, Mandel Dixon, because he is black and hard to handle.  Villarreal also once told Montoya that  [s]ome people are not cut out to be bread men.  Montoya understood some people to refer to African-Americans.

The Montoya declaration did not constitute direct evidence of racially discriminatory intent, because the racial comments Montoya describes were too remote, not directed against either of the plaintiffs, and not linked in any way to the claimed adverse actions. The word nigger is, of course, unequivocally racially derogatory, but Montoyas declaration established only that Wyche had used this term to refer to persons unconnected to Amey or Bryant, and years before either of them were even hired. The words chink, gook and wetback are similarly racially derogatory terms, but these words were not even directed against the same racial group as plaintiffs, much less at plaintiffs themselves, and again were made long before any of the alleged adverse actions. Plaintiffs do not identify any evidence linking these remarks to any of the specific claimed adverse actions.

For similar reasons, the comments Montoya attributes to Villarreal were insufficient to create a triable issue with respect to discriminatory intent: Villarreal was not the decisionmaker with respect to any of the adverse actions that Amey has identified in this appeal. (See Rubinstein, supra, 218 F.3d at p. 401 [to constitute direct evidence of intent, comment must have been made by decisionmaker or person likely to influence the decision maker].) With respect to Bryant, Villarreal was involved in at least some of the alleged adverse actions, such as the removal of the Market Street Safeway from his route. Nonetheless, Montoyas declaration that Villarreal once told him he wanted to get rid of African American supervisor, Mandel Dixon, because he is black and hard to handle,  related to a decision about a different employee, and was not proximate in time, or connected in any other way to the alleged adverse actions taken against Bryant. Finally, Villarreals comment to Montoya that  [s]ome people are not cut out to be bread men,  was not even an unambiguous expression of a racially discriminatory attitude towards African-Americans. In any event, Bryant presented no evidence the latter comment was proximate in time or linked in any other way to any adverse action Villarreal allegedly took against Bryant.

Plaintiffs next assert that unspecified multiple slurs, epithets and jokes made by . . . Wyche also constituted direct evidence of discriminatory intent sufficient to defeat the motion for summary adjudication of their racial discrimination claims. This blanket reference to broad categories of evidence is without citation to the record, or any supporting argument. We deem it insufficient to meet plaintiffs burden to demonstrate error on appeal, because it is not the responsibility of this court to cull though the record and identify all evidence that might fit into the category of slurs, epithets or jokes made by Wyche, or to develop argument on plaintiffs behalf as to how each such comment relates to their protected class and is linked temporally or otherwise to any of the claimed adverse actions. (Lewis, supra, 93 Cal.App.4th at p. 116; Badie, supra, 67 Cal.App.4th at pp. 784-785 [court may deem a point raised but not supported by reasoned argument and citation to be waived or abandoned].)

4. Plaintiffs Cause of Action for Failure to Prevent Discrimination.

The court also granted summary judgment or adjudication with respect to all three plaintiffs causes of action pursuant to Government Code, section 12940, subdivision (k) for failure to prevent discrimination. The court reasoned that an employer is not independently liable under Government Code section 12940, subdivision (k) for failing to prevent discrimination unless there is also a finding that the underlying discrimination occurred. (See Trujillo v. North County Transit District (1998) 63 Cal.App.4th 280, 289 (Trujillo).) Since the court had determined plaintiffs failed to create a triable issue of fact with respect to their causes of action for discrimination, it