Whaley v. State of California Employment Development Dept.

Filed 9/21/07 Whaley v. State of California Employment Development Dept. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Kevin A. Enright, Judge. Affirmed.

Plaintiff Gary S. Whaley appeals a judgment entered after the trial court granted defendant State of California Employment Development Department's (EDD) motion for summary judgment in Whaley's unlawful discrimination and retaliation action against it. On appeal, Whaley contends the trial court erred by: (1) concluding his cause of action for unlawful discrimination based on a disparate treatment theory was barred by the applicable statute of limitations and the doctrines of collateral estoppel and exhaustion of administrative remedies; (2) concluding his cause of action for unlawful retaliation failed for insufficient evidence of any adverse employment action; (3) excluding certain evidence he submitted in support of his opposition to EDD's motion for summary judgment; (4) concluding his cause of action for unlawful retaliation also failed because he did not rebut EDD's showing of legitimate, nonretaliatory reasons for its actions; and (5) awarding costs to EDD.

FACTUAL AND PROCEDURAL BACKGROUND

In November 2000, Whaley, a Caucasian male who speaks only English, was employed by EDD as a part-time, permanent intermittent employment program representative (EPR) at its Chula Vista call center.^[1] An EPR is a telephone operator who takes applications for unemployment insurance over the telephone from the public and assists the callers in submitting their claims. An EDD call center services a diverse population across the state and frequently receives calls from individuals with limited or no English skills. When EPRs receive calls from individuals requiring an operator fluent in another language, they transfer that call to an EPR listed as fluent in that language. EPRs fluent in both English and another language are highly valued by EDD.

In September 2002, EDD and the California State Employees Association (a labor union that represents EPRs) entered into an agreement to convert 76 EPR statewide positions from part-time to full-time positions. Twelve of those positions were identified for the Chula Vista call center, and required Spanish language fluency for six positions and Tagalog language fluency for the other six positions. In November, those 12 positions were converted to full-time positions. However, Whaley's position was not converted to a full-time position because he did not have the requisite language fluency.^[2]

In May 2003, Whaley filed a complaint with the State Personnel Board (SPB), alleging EDD unlawfully discriminated against him on the basis of his race by not converting his part-time position to a full-time position. He argued that the bilingual requirement for EDD's conversion of part-time positions to full-time positions discriminated against him under both disparate treatment and disparate impact theories. Following a hearing, an SPB administrative law judge (ALJ) issued a proposed decision finding in Whaley's favor on the disparate impact theory.^[3]

On January 11, 2005, after a thorough review of the administrative hearing record, the SPB found Whaley had proved he was unlawfully discriminated against on the basis of race under a disparate impact theory. The SPB stated: "While there is no evidence that the decision to impose the language requirement was necessarily motivated by a discriminatory intent, the impact from such a requirement is to deny most Caucasian employees and other ethnic groups whose primary language is something other than Spanish or Tagalog the conversion opportunity."^[4] After finding Whaley had made a prima facie case of disparate impact, the SPB found EDD had not carried its burden to show a legitimate business necessity for the language requirement. Accordingly, the SPB ordered EDD to immediately appoint Whaley to a full-time EPR position and pay him back pay, with interest and benefits, from the time the other positions were converted. By mid-2005, EDD had converted Whaley's job to a full-time position and paid him all back pay required by the SPB's decision.^[5]

On July 7, 2004, Whaley filed a claim with the DFEH, alleging EDD had discriminated and retaliated against him on a continuous basis from November 2002 through May 25, 2004. He alleged EDD's branch manager, Art Samaniego, and other supervisors mocked him, mimicked him, and made fun of him in front of his coworkers, violated his personal space, rejected his medical authorization to return to work, and discussed his medical records in the presence of his coworkers. His claim also referred to his pending complaint with the SPB regarding the conversion of part-time positions to full-time positions based on language fluency. On July 16, 2004, the DFEH sent Whaley a right-to-sue notice.

On or about July 11, 2005, Whaley apparently filed the instant action against EDD.^[6] On August 19, Whaley filed the operative, first amended complaint in this case, alleging four causes of action: (1) racial and national origin discrimination in violation of Government Code section 12940, subdivision (a) based on a disparate impact theory; (2) racial and national origin discrimination in violation of Government Code section 12940, subdivision (a) based on a disparate treatment theory; (3) retaliation in violation of Government Code section 12940, subdivision (h) in response to his internal and DFEH complaints about discrimination and cooperation with authorities in their investigations and with the ALJ in his administrative hearing on the complaint he filed with the SPB; and (4) retaliation in violation of Labor Code section 1102.5 for his alleged whistle blowing actions. In January 2006, the trial court sustained EDD's demurrer to Whaley's fourth cause of action, leaving only the first three causes of action in this case.^[7]

On May 2, EDD filed a motion for summary judgment or, in the alternative, summary adjudication. EDD argued: (1) Whaley could not establish he suffered an adverse employment action; (2) there was no nexus between Whaley's protected activity and EDD's actions; (3) EDD had legitimate, nondiscriminatory or nonretaliatory reasons for its actions; and (4) Whaley's discrimination claims were barred by the applicable statute of limitations and the doctrines of collateral estoppel and the failure to exhaust administrative remedies. In support of its motion, EDD submitted a separate statement of undisputed facts and declarations of certain EDD employees and its attorney. Whaley opposed EDD's motion for summary judgment, citing numerous actions by EDD that purportedly constituted adverse employment actions taken against him. In support of his opposition, he submitted a separate statement of disputed and undisputed facts and the declaration of his attorney, Joel C. Golden, to which were attached copies of the declarations of Richard Novick and Dr. Peter Briggs. In reply, EDD made various objections to certain evidence submitted by Whaley.

On June 18, after hearing arguments on its tentative ruling, the trial court issued an order granting EDD's motion for summary judgment. After sustaining EDD's objections to much of Whaley's evidence, the trial court stated:

"The racial discrimination [causes of action] (re treatment and impact of the 2002 language requirement in response to the conversion plan) have already been determined, or could have been determined, by the [SPB] decision in 2002. Thus[,] these causes of action are barred by the failure to appeal and exhaust administrative remedies through appeal of the SPB decision to the Superior Court. Those two (2) [causes of action] are also barred by applicable statutes of limitation and the doctrine of collateral estoppel.

"The [third cause of action] for unlawful retaliation fails as a matter of law. First, [Whaley] has not shown any action by [EDD] that rises to the level of an adverse employment action. Even if the Court determines [Whaley] has shown such an adverse employment action, [EDD] has demonstrated by admissible evidence legitimate, non-retaliatory reasons for its actions. [Whaley] has not presented admissible evidence to raise a material issue of pretext by [EDD]."

On August 1, the trial court entered judgment for EDD. On October 6, the court awarded EDD its costs and denied Whaley's motion to strike certain of those costs. On October 10, the court amended its August 1 judgment to include that costs award.

Whaley timely filed a notice of appeal.

DISCUSSION

I

Second Cause of Action for Disparate Treatment

Whaley contends the trial court erred by concluding his second cause of action alleging unlawful discrimination based on a disparate treatment theory was barred by the applicable statute of limitations and the doctrines of collateral estoppel and exhaustion of administrative remedies.^[8]

A

Government Code section 12940, subdivision (a) provides that it is an unlawful employment practice "[f]or an employer, because of the race [or] national origin . . . of any person, . . . to discriminate against the person in compensation or in terms, conditions, or privileges of employment." Heard v. Lockheed Missiles & Space Co. (1996) 44 Cal.App.4th 1735 stated:

"In general, there are two types of illegal discrimination. These are disparate treatment and disparate impact. Under the disparate treatment theory, . . . an individual is discriminated against when the employer 'treats some people less favorably than others because of their race . . . or national origin.' [Citation.]" (Heard, at p. 1748.)

Before bringing a civil action under Government Code section 12940, subdivision (a) or another provision of the Fair Employment and Housing Act (FEHA) (Gov. Code,  12900 et seq.), a plaintiff generally must first file an administrative claim with the DFEH within one year of the discriminatory or other action that allegedly violated the FEHA. (Gov. Code,  12960; Williams v. City of Belvedere (1999) 72 Cal.App.4th 84, 90.) "The timely filing of an administrative complaint is a prerequisite to the bringing of a civil action for damages under the FEHA." (Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 492.) If the DFEH declines to pursue that claim, it will issue a right-to-sue notice that permits the plaintiff to file, within one year thereafter, his or her FEHA civil action. (Gov. Code,  12965, subd. (b).)

B

In granting EDD's motion for summary judgment, the trial court concluded Whaley's second cause of action for disparate treatment discrimination in violation of Government Code section 12940, subdivision (a) was barred by the applicable statute of limitations. In so doing, we presume the court was referring to FEHA's requirement that Whaley first file an administrative complaint with the DFEH within one year of the EDD's alleged discriminatory action. (Gov. Code,  12960.) As noted above, in September 2002, EDD entered into the agreement with the EPR's union for conversion of certain part-time positions to full-time positions. In November 2002, that conversion of positions was effected and Whaley learned his position was not included in that conversion. Because Whaley's second cause of action for disparate treatment discrimination is based solely on EDD's exclusion of his position from its 2002 conversion of part-time positions to full-positions, he was required to file an administrative complaint with the DFEH within one year of that alleged discriminatory action (i.e., by November 2003). (Gov. Code,  12960.) Because Whaley did not file a complaint with the DFEH until July 2004, his second cause of action is barred by his failure to first file a timely administrative complaint with the DFEH. (Gov. Code,  12960; Williams v. City of Belvedere, supra, 72 Cal.App.4th at p. 90; Romano v. Rockwell Internat., Inc., supra, 14 Cal.4th at p. 492.)

EDD's exclusion of his position from its conversion of certain part-time positions to full-time positions did not constitute a "continuing violation" that might delay the start of the one-year limitations period for filing an administrative complaint with the DFEH. Citing Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, Whaley argues the fact that EDD did not convert his position to a full-time position until May 25, 2004, shows EDD's alleged FEHA violation continued from November 2002 through May 2004 and therefore his July 2004 complaint with the DFEH was timely. "[T]he continuing violation doctrine comes into play when an employee raises a claim based on conduct that occurred in part outside the limitations period." (Richards, supra, at p. 812.) However, Richards does not require the application of the "continuing violation" doctrine in the circumstances of this case. In the context of an employer's alleged failure to accommodate (or prevent harassment based on) an employee's disability, Richards adopted the following standard for application of the "continuing violation" doctrine:

"[W]e adopt a modified version of the Berry [Berry v. Board of Sup'rs of L.S.U. (5th Cir. 1983) 715 F.2d 971] test. As in Berry, we hold that an employer's persistent failure to reasonably accommodate a disability, or to eliminate a hostile work environment targeting a disabled employee, is a continuing violation if the employer's unlawful actions are (1) sufficiently similar in kind--recognizing, as this case illustrates, that similar kinds of unlawful employer conduct, such as acts of harassment or failures to reasonably accommodate disability, may take a number of different forms [citation]; (2) have occurred with reasonable frequency; (3) and have not acquired a degree of permanence. [Citation.] But consistent with our case law and with the statutory objectives of the FEHA, we further hold that 'permanence' in the context of an ongoing process of accommodation of disability, or ongoing disability harassment, should properly be understood to mean the following: that an employer's statements and actions make clear to a reasonable employee that any further efforts at informal conciliation to obtain reasonable accommodation or end harassment will be futile.

"Thus, when an employer engages in a continuing course of unlawful conduct under the FEHA by refusing reasonable accommodation of a disabled employee or engaging in disability harassment, and this course of conduct does not constitute a constructive discharge, the statute of limitations begins to run, not necessarily when the employee first believes that his or her rights may have been violated, but rather, either when the course of conduct is brought to an end, as by the employer's cessation of such conduct or by the employee's resignation, or when the employee is on notice that further efforts to end the unlawful conduct will be in vain." (Richards, supra, 26 Cal.4th at p. 823.)

Therefore, when an employer makes it clear to an employee "in a definitive manner" that it will not grant the employee's request (or, as in this case, the employee's position will not be converted to a full-time position), the one-year statute of limitations period begins to run. (Richards, at pp. 823-824.)

Applying the Richards test to this case, we conclude Whaley did not show there is a triable issue of fact relating to EDD's statute of limitations defense. EDD's decision in November 2002 not to convert Whaley's position to a full-time position was a single, discrete action, rather than a continuing course of conduct. That decision acquired a sufficient degree of permanence within the meaning of Richards in November 2002. Specifically, EDD's action in November 2002 made it "clear to a reasonable employee that any further efforts" to obtain a conversion of his or her position to a full-time position would be futile. (Richards v. CH2M Hill, Inc., supra, 26 Cal.4th at p. 823.) Alternatively stated, because Whaley in November 2002 was, in effect, put "on notice that further efforts to end [EDD's alleged] unlawful conduct [would] be in vain," the one-year statute of limitations for Whaley to file an administrative claim with the DFEH began to run in November 2002, making his July 2004 filing untimely. (Ibid.; Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1042-1043; cf. Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 63-67.) EDD's conversion of Whaley's position to a full-time position in May 2004 pursuant to the SPB's order did not constitute either a separate FEHA violation or denote the end of the period of a continuing violation in denying him that conversion. Accordingly, Whaley's second cause of action for disparate treatment discrimination based on EDD's exclusion of his position from its conversion of part-time positions to full-time positions based on a language fluency requirement is barred by the applicable one-year statute of limitations. (Gov. Code,  12960; Williams v. City of Belvedere, supra, 72 Cal.App.4th at p. 90; Romano v. Rockwell Internat., Inc., supra, 14 Cal.4th at p. 492.)

C

Because the statute of limitations defense is sufficient by itself to support the trial court's conclusion that EDD was entitled to summary adjudication on Whaley's second cause of action, we need not address the remaining grounds cited by the trial court or EDD in support of that conclusion. Nevertheless, we briefly note that Whaley's second cause of action is also barred by the doctrines of collateral estoppel and exhaustion of judicial remedies. As noted above, in May 2003, Whaley filed a complaint with the SPB alleging EDD unlawfully discriminated against him on the basis of his race when it did not convert his part-time position to a full-time position. He argued the bilingual requirement for EDD's conversion of part-time positions to full-time positions discriminated against him under both disparate treatment and disparate impact theories. Therefore, in ultimately deciding in Whaley's favor based on his disparate impact theory, the SPB necessarily considered, and implicitly rejected, his disparate treatment theory, expressly stating: "[T]here is no evidence that the decision to impose the language requirement was necessarily motivated by a discriminatory intent." Although the SPB added a footnote stating: "Arguably, a case can be made that the language requirement also constituted disparate treatment against non-Hispanic or non-Filipino PI EPRs," the SPB's decision implicitly found that Whaley had not carried his burden of proof on his disparate treatment theory. Despite the SPB's implicit rejection of Whaley's disparate treatment theory of discrimination, he did not challenge its administrative decision by filing a petition for writ of administrative mandamus in superior court. When "a public employee pursues administrative civil service remedies, receives an adverse finding, and fails to have the finding set aside through judicial review procedures, the adverse finding is binding on discrimination claims under the FEHA." (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 76.) "This requirement of exhaustion of judicial remedies is to be distinguished from the requirement of exhaustion of administrative remedies. . . . Exhaustion of judicial remedies . . . is necessary to avoid giving binding 'effect to the administrative agency's decision, because that decision has achieved finality due to the aggrieved party's failure to pursue the exclusive judicial remedy for reviewing administrative action.' [Citation.]" (Id. at p. 70.)

Whaley's failure to pursue his judicial remedy and challenge the SPB's rejection of his disparate treatment theory resulted in the finality of that decision, involving application of the doctrine of collateral estoppel. (Page v. Los AngelesCountyProbation Dept. (2004) 123 Cal.App.4th 1135, 1142-1143.) "Johnson . . . ensures that employees who choose to utilize internal procedures are not given a second 'bite of the procedural apple.' " (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1090-1091.) Therefore, although Whaley may have had a right to pursue his disparate treatment discrimination claim both in a civil service proceeding before the SPB and in a FEHA action in superior court (had he first timely filed a claim with, and received a right-to-sue notice from, the DFEH), on receipt of an adverse ruling on that claim in the administrative proceeding by the SPB and his failure to exhaust his judicial remedies by filing a petition for writ of administrative mandamus, the SPB's ruling became binding on him in the instant pending FEHA action.

Applying the doctrine of collateral estoppel (or issue preclusion) in this case, the SPB's adverse ruling on Whaley's disparate treatment discrimination theory bars his second cause of action alleging that same theory. Whaley does not persuade us that the threshold requirements for the application of that doctrine have not been satisfied.^[9] Accordingly, EDD was entitled to summary adjudication on Whaley's second cause of action. (Castillo v. City of Los Angeles, supra, 92 Cal.App.4th at pp. 486-487.)

II

Trial Court's Evidentiary Rulings

Whaley contends the trial court erred in sustaining EDD's objections to certain evidence he submitted in support of his opposition to EDD's motion for summary judgment.

A

Although, as we discuss in part III post, we generally apply a de novo standard in reviewing a trial court's order granting or denying a motion for summary judgment, in the course of reviewing a summary judgment "we review the trial court's final rulings on evidentiary objections by applying an abuse of discretion standard. [Citations.]" (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 122; see also Hollywood Screentest of America, Inc. v. NBC Universal, Inc. (2007) 151 Cal.App.4th 631, 643-645; Mitchell v. United National Ins. Co. (2005) 127 Cal.App.4th 457, 467; Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694 ["the weight of authority holds that an appellate court reviews a court's final rulings on evidentiary objections by applying an abuse of discretion standard"]; Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 928; Walker v. Countrywide Home Loans, Inc. (2002) 98 Cal.App.4th 1158, 1169.) Accordingly, in reviewing the trial court's rulings sustaining EDD's objections to certain evidence submitted by Whaley in support of his opposition to EDD's motion for summary judgment, we generally defer to the trial court and overrule its evidentiary rulings only if they constitute an abuse of its discretion.

B

In its order granting EDD's motion for summary judgment, the trial court first ruled on EDD's objections to certain evidence submitted by Whaley in opposition to EDD's motion for summary judgment.

Novick's Declaration. Whaley argues the trial court erred by sustaining EDD's objections to Novick's declaration that he submitted in opposition to EDD's motion. Citing various specific grounds, EDD objected to paragraphs 7 through 14 of Novick's declaration.^[10] The trial court sustained EDD's objection to paragraph 7, which stated:

"7. The [SPB] agreed with Mr. Whaley in ruling that there was no legitimate business reason for the foreign language requirements and that it did have a disparate impact on Mr. Whaley because he is Caucasian."

The court sustained EDD's objection to that paragraph, citing the grounds of "lack of foundation as to how he [Novick] has any personal knowledge of the [SPB] decision. Further, his recitation of what he believes the [SPB's] decision states is hearsay as it is an out of court statement offered for its truth." Rather than arguing the court erred by excluding paragraph 7 on those grounds, Whaley argues the SPB's decision was already in evidence and showed Novick's statement was accurate. However, in so doing, Whaley does not carry his appellate burden to show the court abused its discretion by excluding paragraph 7 on grounds of lack of foundation and hearsay. Accordingly, we conclude the court properly sustained EDD's objection to paragraph 7.

The trial court also sustained EDD's objection to paragraph 8, which stated:

"8. The [SPB] ordered that EDD give Mr. Whaley full time employment and back pay for the amount of compensation he lost in being denied full time employment because he did not speak Spanish or Tagalog."

The court sustained EDD's objection to that paragraph, citing the grounds of "lack of foundation as to how he [Novick] has any personal knowledge of the [SPB] decision, or why he, as a former employee of EDD, would be competent to testify on the [SPB's] decision. Further, his recitation of what he believes the [SPB's] decision states is hearsay as it is an out of court statement offered for its truth." As he did regarding paragraph 7, Whaley merely argues the SPB's decision was already in evidence and showed Novick's statement was accurate. However, in so doing, Whaley does not carry his appellate burden to show the court abused its discretion by excluding paragraph 8 on grounds of lack of foundation and hearsay. Accordingly, we conclude the court properly sustained EDD's objection to paragraph 8.

The trial court also sustained EDD's objection to paragraph 9, which stated:

"9. In close time proximity after his filing the discrimination claim with the [SPB] and testifying at the hearing and ultimately prevailing as well as Mr. Whaley filing a DFEH and EEOC discrimination and retaliation claim, I became aware of ill will against Mr. Whaley by certain of his supervisors including Art Samaniego, Ann Hallahan, Rebecca Davidson and Mary Castillo; and based on information and belief, I became aware of ill will against Mr. Whaley by certain of his superiors including Pat Polak and Phil Wendell for the same reasons relating to his filing discrimination complaints."

The court sustained EDD's objection to that paragraph, stating:

"[L]ack of foundation as to how he has any knowledge of any alleged ill will against Mr. Whaley by any of the named supervisors. He was not Mr. Whaley's supervisor at the time Whaley was allegedly retaliated against. Further[,] his impression other supervisors had ill will toward Mr. Whaley is [conclusory]. He states no facts which would show he has a basis for believing any of the named supervisors had ill will toward Mr. Whaley. [Citation.] Additionally, because there is no explanation for how Mr. Novick came to his subjective impression, his conclusion is also an improper lay opinion. ([Evid. Code,  800.]) Lastly, Mr. Novick's feeling certain supervisors bore Mr. Whaley ill will is irrelevant. The issue in racial discrimination or retaliation cases is not whether a supervisor liked an employee but whether an adverse employment action was motivated by racial or retaliatory animus."

Whaley merely argues the court erred by concluding Novick's statement that he became aware of ill will by Whaley's supervisors was conclusory. Whaley asserts ill will is synonymous with unfriendly behavior and can be personally observed. However, in so doing, Whaley does not refute the other grounds cited by the court for excluding paragraph 9 (e.g., lack of foundation). The court found Novick's declaration showed he was not Whaley's supervisor at the time of the alleged retaliation. Because his declaration did not state a sufficient foundational basis for his personal knowledge of the purported ill will against Whaley, the court did not abuse its discretion by excluding paragraph 9 (i.e., Novick's conclusory statement(s) that Whaley's supervisors bore him ill will). (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1120.)

The trial court also sustained EDD's objections to paragraph 10, citing a lack of foundation as to how Novick had personal knowledge of 14 alleged retaliatory actions. Absent a sufficient foundational basis for his personal knowledge, the court further concluded Novick's opinion regarding EDD's alleged retaliatory animus was conclusory and an improper lay opinion. The court further stated: "Employment discrimination cases have held inadmissible a witness'[s] opinion as to whether an actor was motivated by an impermissible racial animus. [(Hester v. BIC Corp. (2d Cir. 2000) 225 F.3d 178, 184-186 (Hester); Alexis v. McDonald's Restaurants of Massachusetts (1st Cir. 1995) 67 F.3d 341, 347.) (Alexis)]" Whaley only argues the court erred by excluding four of those 14 retaliatory statements. Accordingly, he has waived any contention the trial court erred by excluding the remaining 10 of those 14 statements. Furthermore, although the trial court also sustained EDD's objections to an additional 10 statements based only on Novick's information and belief (citing Lopez v. University Partners (1997) 54 Cal.App.4th 1117, 1124), Whaley does not argue the court erred in excluding those statements. Therefore, we conclude, at the outset, Whaley has not carried his burden on appeal to show the trial court abused its discretion by excluding 20 of the 24 statements made by Novick in paragraph 10.

Regarding the four statements by Novick that Whaley argues were wrongly excluded by the court, Whaley asserts all four of those statements (numbered 3, 5, 10, and 13) were, in fact, expressly based on Novick's personal knowledge and observation and therefore should not have been excluded. Paragraph 10 of Novick's declaration stated in relevant part:

"10. This ill will manifested itself in retaliatory actions taken against Mr. Whaley. Those actions included, but were not limited to, the following: . . . 3) Ann Hallahan expressing disapproval to me that I did not give Mr. Whaley a low rating in terms of 'relationships with people' on an individual development plan; . . . 5) Ann Hallahan suggesting and authorizing me to destroy personnel records pertaining to Mr. Whaley; . . . 10) Ms. Hallahan and Mr. Samaniego forwarding negative information to me regarding Mr. Whaley's job performance through other supervisors all the while hiding the actual source of the information; . . . 13) Mary Castillo telling me that Mr. Whaley was paranoid and a liar; . . . ."

Assuming arguendo Whaley correctly asserts Novick's four statements were sufficiently based on his personal knowledge and therefore did not lack a proper foundation, we nevertheless conclude, as the trial court did, those statements were inadmissible to show those EDD employees identified by Novick bore a retaliatory animus against Whaley. In objecting to those statements in Novick's declaration, EDD asserted that "opinions of lay witnesses that an actor was motivated by improper . . . retaliatory animus are inadmissible," citing the Hester and Alexis cases as support. In sustaining EDD's objections, the trial court restated that legal principle and also cited the Hester and Alexis cases. We agree with the trial court's conclusion in excluding paragraph 10 of Novick's declaration on the basis that it impermissibly states a lay opinion that the described actions of other EDD employees were based on a retaliatory animus. Although the actions of the EDD employees described in the four statements quoted above may be consistent with a retaliatory animus against Whaley, Novick's declaration showed no basis on which he (Novick) could base his opinion that those actions were motivated by or based on a retaliatory animus for Whaley's protected activity. (Cf. Hester, supra, 225 F.3d at pp. 184-186; Alexis, supra, 67 F.3d at p. 347.) As quoted above, paragraph 10 of Novick's declaration began: "This ill will manifested itself in retaliatory actions taken against Mr. Whaley. Those actions included, but were not limited to, the following: . . . ." Therefore, all of the actions listed after that prefatory statement were actions to support Novick's improper lay opinion that the actors bore a retaliatory animus against Whaley. (Cf. Hoover v. Community Hotel Development Corp. v. Thomson (1985) 167 Cal.App.3d 1130, 1136 ["a statement of someone else's intent, as contrasted with a statement of one's own intent, is a mere conclusion of law[,]" and therefore is incompetent evidence in opposing a motion for summary judgment.].) Accordingly, we conclude the trial court did not abuse its discretion by excluding paragraph 10 of Novick's declaration.^[11]

The trial court also sustained EDD's objections to paragraph 11 of Novick's declaration. However, because Whaley's opening brief does not argue the court erred in excluding that paragraph, we conclude Whaley has waived any error and has not carried his burden on appeal to show the trial court abused its discretion by excluding paragraph 11.

The trial court also sustained EDD's objections to paragraph 12 of Novick's declaration, which stated:

"12. As his supervisor I noticed that his working conditions became hostile and oppressive to the extent that it interfered with his performance and negatively impacted his ability to advance in his career. It became increasingly unlikely that Mr. Whaley could be promoted in the wake of this concerted negative retaliatory campaign against him by those supervisory individuals in and out of his chain of command."

In excluding that paragraph, the trial court stated: "[T]his is [a] legal conclusion unsupported by evidentiary facts. Objections to [conclusory] declarations are properly sustained where there are no facts supporting the conclusion. [(Hoover v. Community Hotel Development Corp. v. Thomson, supra, 167 Cal.App.3d at pp. 1135-1137.)]" In challenging the court's exclusion of paragraph 12, Whaley argues Novick's statements properly described his (Novick's) personal observations as Whaley's supervisor that Whaley's working conditions became so hostile and oppressive that they negatively impacted his job performance and career. However, similar to our conclusion regarding the court's exclusion of paragraph 10 above, we conclude Novick's declaration in paragraph 12 impermissibly states both a lay and legal opinion that Whaley's work conditions were so hostile and oppressive that they negatively affected his job performance and career advancement, and that a promotion was increasingly unlikely because of "this concerted negative retaliatory campaign against him."

Assuming Novick personally observed Whaley's adverse working conditions (e.g., hostility displayed by other EDD supervisors toward Whaley) and their effect on Whaley's job performance, Novick's declaration showed no basis on which he could base his opinion that those working conditions were caused by a retaliatory animus (or, as Novick phrased it, a "concerted negative retaliatory campaign") for Whaley's protected activity. (Cf. Hester, supra, 225 F.3d at pp. 184-186; Alexis, supra, 67 F.3d at p. 347.) Accordingly, the trial court properly excluded Novick's improper lay or legal opinion that Whaley's adverse working conditions were the result of EDD's retaliatory animus against him. (Hester, at pp. 184-186; Alexis, at p. 347; Hoover v. Community Hotel Development Corp. v. Thomson, supra, 167 Cal.App.3d at p. 1136 ["a statement of someone else's intent, as contrasted with a statement of one's own intent, is a mere conclusion of law[,]" and therefore is incompetent evidence in opposing a motion for summary judgment.].) Accordingly, we conclude the trial court did not abuse its discretion by excluding paragraph 12 of Novick's declaration.

The trial court also sustained EDD's objections to paragraph 13 of Novick's declaration. However, because Whaley's opening brief does not argue the court erred in excluding that paragraph, we conclude Whaley has waived any error and has not carried his burden on appeal to show the trial court abused its discretion by excluding paragraph 13.^[12]

Attorney Golden's Declaration. Whaley argues the trial court erred by sustaining EDD's objections to his attorney's (i.e., Joel C. Golden) declaration submitted in opposition to EDD's motion. That declaration states:

"I, Joel C. Golden, hereby declare that the following are true and correct copies of that which they purport to be:

"1. Exhibit A is a true and correct copy of Richard Novick's Declaration;

"2. Exhibit B is a true and correct copy of Dr. Peter Briggs'[s] Declaration;

"3. Exhibits C, D, E, F and G are true and correct copies of documents produced to me by EDD in response to my document requests."

Apparently attached to Golden's declaration were copies of the referred-to exhibits. EDD objected to paragraphs 4, 5, 6, and 8 of Briggs's declaration (i.e., Exhibit B attached to Golden's declaration) and to all of Exhibits C, D, E, F, and G attached to Golden's declaration. The trial court sustained all of those objections raised by EDD.

Because Whaley's opening brief does not argue the court erred in excluding paragraphs 4, 5, 6, and 8 of Briggs's declaration (i.e., Exhibit B attached to Golden's declaration), we conclude Whaley has waived any error and has not carried his burden on appeal to show the trial court abused its discretion by excluding those paragraphs.

Whaley argues the trial court erred by excluding Exhibits C, D, E, F, and G to Golden's declaration. In sustaining EDD's objections to those exhibits, the trial court cited the ground of lack of proper authentication of those documents.^[13] We conclude the trial court properly found those documents were not properly authenticated. Evidence Code section 1400 provides: "Authentication of a writing means (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any other means provided by law." Evidence Code section 1401 provides: "(a) Authentication of a writing is required before it may be received in evidence. [] (b) Authentication of a writing is required before secondary evidence of its content may be received in evidence." Therefore, authentication of a document requires the introduction of evidence sufficient to support a finding that the document is the writing that the proponent of the evidence purports it to be. (Evid. Code,  1400; McAllister v. George (1977) 73 Cal.App.3d 258, 262.) Golden's declaration merely stated the proffered documents were "true and correct copies of documents produced to me by EDD in response to my document requests." However, the fact that Golden, as Whaley's attorney, received copies of those documents from EDD in the course of discovery is insufficient evidence to support a finding those documents were, in fact, what Golden purported them to be. (Cf. O'Laskey v. Sortino (1990) 224 Cal.App.3d 241, 249, disapproved on another ground in Flanagan v. Flanagan (2002) 27 Cal.4th 766, 768.) Golden's declaration did not show he had a personal knowledge regarding the authenticity of any of those documents. (Ibid.) Accordingly, the trial court did not abuse its discretion by excluding Exhibits C, D, E, F, and G to Golden's declaration.^[14]

III

Third Cause of Action for Unlawful Retaliation

Whaley contends the trial court erred by concluding his third cause of action for unlawful retaliation failed for insufficient evidence of any adverse employment action.

A

On appeal from a summary judgment, we apply a de novo, or independent, standard of review in determining whether there are triable issues of material fact and whether the moving party is entitled to judgment as a matter of law. (Loggins v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102, 1109 (Loggins); Powell v. Kleinman, supra, 151 Cal.App.4th at p. 121; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860 (Aguilar); Walker v. Countrywide Home Loans, Inc., supra, 98 Cal.App.4th at p. 1168.) "[W]e must consider all the evidence set forth in the moving and opposing papers except evidence to which objections were made and [properly] sustained. [Citation.]" (Loggins, at p. 1109.) "The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute." (Aguilar, at p. 843.)

Powell summarized the shifting burdens of the parties in supporting or opposing a motion for summary judgment:

"A defendant moving for summary judgment has the initial burden of showing that a cause of action lacks merit because one or more elements of the cause of action cannot be established or there is an affirmative defense to that cause of action. (Code Civ. Proc.,  437c, subd. (o); Aguilar, supra, 25 Cal.4th at p. 850.) If the defendant fails to make this initial showing, it is unnecessary to examine the plaintiff's opposing evidence and the motion must be denied. However, if the moving papers make a prima facie showing that justifies a judgment in the defendant's favor, the burden shifts to the plaintiff to make a prima facie showing of the existence of a triable issue of material fact. (Code Civ. Proc.,  437c, subd. (p)(2); Aguilar, 25 Cal.4th at p. 849.)

"In determining whether the parties have met their respective burdens, the court must 'consider all of the evidence' and 'all of the inferences reasonably drawn therefrom,' and 'must view such evidence [citations] and such inferences [citations] . . . in the light most favorable to the opposing party.' (Aguilar, supra, 25 Cal.4th at pp. 844-845.) 'There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.' (Aguilar, 25 Cal.4th at p. 850, fn. omitted.) Consequently, a defendant moving for summary judgment must 'present evidence that would require . . . a trier of fact not to find any underlying material fact more likely than not.' (Id. at p. 845.)" (Powell v. Kleinman, supra, 151 Cal.App.4th at pp. 121-122, first italics added.)

To obtain a summary judgment, "all that the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action . . . . [T]he defendant need not himself conclusively negate any such element . . . ." (Aguilar, at p. 853.) "To avoid summary judgment, admissible evidence presented to the trial court, not merely claims or theories, must reveal a triable, material factual issue. [Citation.] Moreover, the opposition to [a motion for] summary judgment will be deemed insufficient when it is essentially [conclusory], argumentative or based on conjecture and speculation. [Citations.]" (Wiz Technology, Inc. v. Coopers & Lybrand (2003) 106 Cal.App.4th 1, 11.)

B

"[T]o establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a 'protected activity,' (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action. [Citations.] Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. [Citation.] 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, italics added.)

The shifting burden also applies in the context of a motion for summary judgment in a FEHA retaliation case, as we recently stated:

"When a plaintiff alleges retaliatory employment [action] . . . as a claim under the FEHA . . . , and the defendant seeks summary judgment, California follows the burden-shifting analysis of McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 [36 L.Ed.2d 668, 93 S.Ct. 1817] to determine whether there are triable issues of fact for resolution by a jury. [Citation.] In the first stage, the 'plaintiff must show (1) he or she engaged in a "protected activity," (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action.' [Yanowitz, supra, 36 Cal.4th at p. 1042 ] If the employee successfully establishes these elements and thereby shows a prima facie case exists, the burden shifts to the employer to provide evidence that there was a legitimate, nonretaliatory reason for the adverse employment action. [Citation.] If the employer produces evidence showing a legitimate reason for the adverse employment action, 'the presumption of retaliation " ' "drops out of the picture," ' " ' [citation], and the burden shifts back to the employee to provide 'substantial responsive evidence' that the employer's proffered reasons were untrue or pretextual [citation]." (Loggins, supra, 151 Cal.App.4th at pp. 1108-1109.)

Regarding the second element of an "adverse employment action," Yanowitz discussed "the appropriate standard for determining whether an employee has been subjected to an adverse employment action for purposes of a retaliation claim under the FEHA." (Yanowitz, supra, 36 Cal.4th at p. 1049.) Yanowitz stated:

"Retaliation claims are inherently fact-specific, and the impact of an employer's action in a particular case must be evaluated in context. Accordingly, although an adverse employment action must materially affect the terms, conditions, or privileges of employment to be actionable, the determination of whether a particular action or course of conduct rises to the level of actionable conduct should take into account the unique circumstances of the affected employee as well as the workplace context of the claim." (Yanowitz, supra, at p. 1052, italics added, fn. omitted.)

The Supreme Court further stated: "Appropriately viewed, [Government Code section 12940] protects an employee against unlawful discrimination with respect not only to so-called ultimate employment actions such as termination or demotion, but also the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee's job performance or opportunity for advancement in his or her career. Although a mere offensive utterance or even a pattern of social slights by either the employer or coemployees cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment for purposes of section 12940(a) [discrimination] (or give rise to a [retaliation] claim under section 12940(h)), the phrase 'terms, conditions, or privileges' of employment must be interpreted liberally and with a reasonable appreciation of the realities of the workplace in order to afford employees the appropriate and generous protection against employment discrimination that the FEHA was intended to provide." (Yanowitz, supra, at pp. 1053-1054, fns. omitted.) The court explained:

"[T]he determination of what type of adverse treatment properly should be considered discrimination in the terms, conditions, or privileges of employment is not, by its nature, susceptible to a mathematically precise test, and the significance of particular types of adverse actions must be evaluated by taking into account the legitimate interests of both the employer and the employee. 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 employee's job performance or prospects for advancement or promotion falls within the reach of the antidiscrimination provisions of sections 12940(a) and 12940(h)." (Yanowitz, supra, 36 Cal.4th at pp. 1054-1055, italics added, fn. omitted.)

In determining whether alleged retaliatory conduct constitutes adverse employment action, we need not "decide whether each alleged retaliatory act constitutes an adverse employment action in and of itself. . . . [T]here is no requirement that an employer's retaliatory acts constitute one swift blow, rather than a series of subtle, yet damaging, injuries. [Citations.]" (Yanowitz, supra, 36 Cal.4th at p. 1055.) Therefore, we consider the totality of the circumstances of an employer's alleged retaliatory acts in determining whether, collectively, those acts constituted adverse employment action satisfying the second element of a FEHA retaliation claim. (Id. at pp. 1052, fn. 11, 1056.) Accordingly, in the context of an employer's motion for summary judgment, we independently consider the totality of the circumstances of the employer's alleged retaliatory acts, as supported by competent evidence in opposition to the motion, to determine whether there is a triable issue of fact whether those acts, taken together, materially affected the terms, conditions, or privileges of the employee's employment. (Id. at pp. 1052-1056.)

C

Whaley argues the trial court erred by concluding he did not show any of EDD's actions rose to the level of an adverse employment action.^[15] By so concluding, the trial court, in effect, found EDD had satisfied its initial burden of showing Whaley could not establish the second element of a FEHA retaliation cause of action (i.e., adverse employment action), and Whaley had not satisfied his burden to present sufficient competent evidence to support a finding EDD took adverse employment action against him.

On appeal, Whaley's opening brief lists 29 alleged adverse employment actions by EDD, accompanied by citations to supporting evidence, which, considered collectively, constituted adverse employment action against him.^[16] However, because some of the evidence cited by Whaley as support for many of those alleged adverse acts was properly excluded by the trial court, as we concluded in part II, ante, and other cited evidence is not competent evidence (as we conclude below), we first address the sufficiency of the evidence in support of those 29 alleged adverse acts and then consider whether those acts that are supported by competent evidence, taken collectively, constituted adverse employment action under FEHA as interpreted by Yanowitz.

Whaley's 29 Alleged Adverse Employment Acts by EDD. In Whaley's opening brief, he alleges the following acts by EDD constituted adverse employment action against him (with citations to the record for evidence to support those alleged acts), each of which we discuss:

1. "Denying [Whaley] overtime opportunities." As supporting evidence, Whaley first cites a page from the SPB's decision that does not make any reference to, or finding on, a denial by EDD of overtime opportunities to Whaley. However, Whaley also cites a page from the transcript of his deposition testimony. Whaley testified there was a day he and two other EDD employees were willing to work overtime to resolve some computer issues, but when Mary Castillo, apparently an EDD supervisor, "found out that I was one of the three, she [canceled] the overtime for everyone." Whaley believed the overtime was canceled based on Castillo's "reaction . . . towards me being there, not because of some other reason" and because he had subpoenaed documents from EDD. Whaley also cites a page from his response to EDD's special interrogatories in which he apparently referred to that same incident, stating: "Castillo cancels overtime for three employees once she finds out I am a candidate to work overtime." We conclude Whaley's cited evidence shows he had personal knowledge of a purported incident in which Castillo canceled overtime work allegedly because he would have been included in the overtime group. Accordingly, we consider that alleged adverse act together with those other alleged acts supported by competent evidence.

2. "Maintaining secret files containing derogatory statements relating to [Whaley] and refusing his requests to see said files." As sole support for that statement, Whaley cites a page from the transcript of his deposition in which he testified: "[T]here's an official personnel file, a local personnel file, and a supervisor drop file, and then of course it's been conceded there's secret or private files that are kept on me." (Italics added.) However, that page contains no other testimony showing he had personal knowledge of secret files maintained on him (or any other evidence supporting that purported fact). Because Whaley's allegation that EDD maintained secret files appears to be based on hearsay and/or his own speculation and is not supported by competent evidence, we exclude that alleged adverse act by EDD from our consideration of those acts supported by competent evidence.

3. "Knowingly making false accusations against him including attributing acts of violence to him[,] all of which damaged his reputation." As sole support for that statement, Whaley cites the transcript of his deposition in which he testified: "In January of 2005, Davidson and Hallahan allegedly pressured another employee to try to fabricate an assault complaint against me . . . ." However, that testimony does not show, or support a reasonable inference, that Whaley had first-hand or other personal knowledge of the alleged incident in which two apparent EDD supervisors pressured another (unnamed) employee to fabricate an assault complaint against Whaley. Because that allegation appears to be based on hearsay and is not supported by competent evidence, we exclude that alleged adverse act by EDD from our consideration of those acts supported by competent evidence.

4. "[Whaley] was denied a promotion to the position of Computer Specialist without [an] SPB ranking