de la Pena v. Rio Hondo Community College Dist.

Filed 9/10/07 de la Pena v. Rio Hondo Community College Dist. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County.

William F. Highberger, Judge. Affirmed.

William D. Evans for Plaintiff and Appellant.

Gibeaut, Mahan & Briscoe, Gary R. Gibeaut, Nancy Mahan-Lamb, Lisa J. Brown for Defendants and Respondents.

___________________________________________________

Plaintiff Susana de la Pea, Ph.D., was hired by defendant Rio Hondo Community College District (the District) to teach English. However, after unsatisfactory performance ratings as a probationary employee, de la Peas employment contract was not renewed. De la Pea challenged the decision by way of arbitration, pursuant to the terms of a collective bargaining agreement. She also sued the District, her supervisors, and other District personnel,^[1]alleging causes of action in a fourth amended complaint for wrongful termination based on national origin discrimination and retaliation, defamation, false imprisonment, and intentional and negligent infliction of emotional distress.

We find the trial court properly (1) denied the motion to confirm the arbitration decision, which was in de la Peas favor but was merely advisory and was not adopted by the District, and (2) denied the petition for a writ of administrative mandamus because substantial evidence supported the finding by the District that there were no procedural irregularities in the process used to evaluate de la Peas grievance. Additionally, the trial court properly (1) sustained the demurrer to the cause of action alleging wrongful termination in violation of public policy in the first amended complaint, and (2) granted summary judgment as to the remaining causes of action.

FACTUAL AND PROCEDURAL SUMMARY^[2]

The District hired de la Pea for the academic year 2001-2002. She taught English courses and ESL classes, totaling 18 units in the first semester and 21 units in the second semester. Dean Chabran was de la Peas immediate supervisor, although she was to some extent also supervised by Ron Sciborski, head of the ESL department. De la Pea was also appointed as the faculty advisor for the Mexican-American student group known as MEChA.

During the beginning of de la Peas first academic year, she got along well personally with her immediate supervisor, Chabran, and the two occasionally socialized. However, in January of 2002, for some unstated reason Chabran stopped socializing with de la Pea and acted cold and distant toward her. At about that same time, Chabran told de la Pea to remove the Mexican dcor from the office she shared with two other employees, whose office space and needs she had not considered. Chabran also suggested to her that she was getting a reputation as a radical Chicana with a big mouth and for having an attitude.

De la Peas first semester evaluation occurred in November of 2001, and she was rated overall as satisfactory. Her second semester evaluation, which covered the period from January 29, 2002, to May 13, 2002, was generally satisfactory--except she was deemed unsatisfactory with respect to an item described as [w]orks effectively with employees. De la Peas next evaluation, which covered the period from August 21, 2002, to December 9, 2002, rated her as unsatisfactory in regard to (1) her failure to give prior notification to the department chairperson of an inability to meet a class, (2) her improper use of facilities, equipment and materials, and (3) her inability to work effectively with other employees.

De la Pea disputed the accuracy or extent of the factual basis for the unsatisfactory areas. Regarding the failure to timely notify the school about a missed class, de la Pea had an emergency root canal treatment and belatedly called in to advise Chabran of her absence during the time the class was supposed to be held.

Regarding the use of school equipment, de la Pea borrowed a dolly to move books during a weekend in August of 2002. She could not return the dolly later that day because the building was locked and she did not have a key. She took the dolly home with her and brought it back the next day, a Sunday, but could not get assistance from a security guard to bring the dolly to the administration building where it belonged. So, de la Pea took the dolly home a second night and finally returned it the next day. Later that day, Chabran admonished de la Pea in writing for taking equipment off campus, for having spoken to custodians and security staff in an impatient or angry way and for her unprofessional behavior. However, de la Pea thought she acted properly in taking the dolly home so it would not be lost, and she did not consider her tone with the security staff as rude or abusive.

In November of 2002, Chabran spoke to de la Pea about excessive printing at the Districts copy machine facilities and using up reams of paper. Similarly, a dean of the ESL program advised de la Pea that he had heard she used a printer, without authorization, to make copies and used reams of paper on two occasions. De la Pea claimed that she made only minor use of the printer on two occasions because her own computer was not working at the time, and that she used in total only about 10 sheets of paper.

In February of 2003, de la Pea met with Ron Cataraha and with Chabran, who informed de la Pea that she was recommending that the District not renew de la Peas contract for the coming academic year (2003-2004) and that de la Pea would later receive a letter to that effect. On March 12, 2003, de la Pea appeared at the Districts regularly scheduled meeting of the Board of Trustees (the Board) and asked to speak. She had all of her evaluations, explained the sequence of events, and complained that she had not been given any reasons for the decision not to renew her contract. She also claimed that she had experienced a hostile environment and that her unsatisfactory evaluation was in retaliation for her national origin, her efforts to involve the Union in her matters and for having complained about a hostile environment. On March 17, de la Pea received a letter from Joyce, indicating that the District would not renew her teaching contract. De la Pea, a probationary employee, was not provided with any detailed statement of reasons for not renewing her contract, but she was advised that the Board had authorized and approved of the action taken.

On March 26, 2003, de la Pea was preparing to leave for an evening class when Cataraha and Arnold approached her in the lobby room of the English Department. When de la Pea stated that she was on her way to teach a class, Arnold remarked that she was not going anywhere and suggested that they do this the easy way. De la Pea stated that she was unwilling to meet without a representative from the union. De la Pea stood with papers and teaching materials in her hand, while Arnold and Cataraha stood in her way and prevented her from leaving, and as Cataraha gave de la Pea a letter advising her that the District wanted her off campus. After several minutes, Cataraha moved away from his position which had inhibited her from moving to the door, and de la Pea left the lobby room through that door.

When de la Pea left, she proceeded to her classroom where she saw a campus policeman stationed at the door and noticed that a substitute teacher was teaching her class. The campus policeman advised her that she had to leave campus, he called for assistance, and two campus police officers then escorted her away. De la Pea was prevented from completing the remaining five weeks of her semester of teaching, and she was prohibited from reentering the campus.

Meanwhile, later that evening after de la Pea left, Cathy Butler met with the MEChA student group to dispel a rumor she said de la Pea had been spreading to the effect that MEChA was being disbanded. In response to student questions, Butler stated that she would not comment on de la Peas character or state of mind, whatever it is.

De la Pea initially pursued arbitration to challenge the decision not to renew her employment contract. The terms of the collective bargaining agreement permitting arbitration for such a grievance limited the arbitrators review to whether the District acted in an arbitrary, capricious, or discriminatory manner in making an employment decision. In October of 2003, a two-day arbitration hearing was conducted before Ernest S. Gould, with the parties offering testimony, documentary evidence and briefing. On February 24, 2004, Gould issued an arbitration award, which, according to the terms of the collective bargaining agreement, is in the form of a recommendation to the Board of Trustees of the District. The arbitrator recommended that the District reemploy de la Pea for the 2003-2004 academic school year, that de la Pea receive back pay (a net of $75,300), and that the District reconsider the evaluation and recommendations relative to her employment. Finally, the arbitrator recommended that the Board consider remedial training or retraining for those administrators and deans who may require further instruction in the evaluation process and in preparing evaluation reports.

On March 8, 2004, within 10 working days of the issuance of the arbitrators recommended award,^[3]the president of the District requested that the Board review the recommended award. On April 2, 2004, the Board voted to review the recommended award and obtained the entire record of the arbitration matter. On May 4, 2004, de la Pea filed a complaint alleging three causes of action based upon wrongful termination and four causes of action alleging various related torts; she also petitioned to confirm the arbitration award.

On May 17, 2004, the Board issued a 16-page written decision denying de la Peas grievance, and noting that she could seek judicial review by way of a petition for writ of administrative mandamus. (See Code Civ. Proc.,  1094.5.) On June 4, 2004, the District demurred to de la Peas complaint. The District, in pertinent part, challenged jurisdiction over the wrongful termination causes of action for failure to exhaust administrative remedies, and it sought to stay the action pending exhaustion. On June 18, 2004, de la Pea moved to confirm the arbitrators recommended award (see Code Civ. Proc.,  1285) on the grounds that the award had become final and binding because the Board had purportedly failed to review it in a timely manner.

On August 13, 2004, de la Pea filed a petition for writ of administrative mandamus, seeking to have the superior court confirm the arbitration award, alleging that the award became final because the Board purportedly did not act within the necessary time period.^[4] According to de la Pea, because the collective bargaining agreement made no provision for a deadline by which a party requesting review by the Board of an advisory award must file the record of the arbitration proceedings with the Board, the agreement should be interpreted to require that the record be filed at the same time as the Boards receipt of the Districts request for review. Thus, under such an interpretation, the Board should have acted on the request for review no later than April 26, 2004; i.e., 30 working days (excluding weekends and college spring break) after March 8, 2004, the date the District requested that the Board review the recommended award. Therefore, de la Pea argued that the Boards May 17, 2004, decision was untimely, and that the arbitrators recommendation purportedly became final and binding.

On November 30, 2004, the court denied the petition for administrative mandamus. As indicated in the courts order, it found that substantial evidence supported the conclusion of the Board that there were no procedural irregularities in the process under the collective bargaining agreement used to evaluate de la Peas grievance. Also, the court found that de la Pea was a probationary employee who therefore had no vested right in continued employment with the District sufficient to support the application of a de novo standard of review. On December 13, 2004, the court also denied the motion to confirm the arbitration award.

On March 23, 2005, the court sustained the demurrer without leave to amend as to the first cause of action for wrongful termination in violation of public policy, based on alleged violations of various Education Code provisions. The court sustained the demurrer, but with leave to amend, as to the infliction of emotional distress causes of action, and overruled the demurrer as to all other causes of action. Several more amended complaints ensued, with demurrers sustained with leave to amend.

On September 19, 2005, de la Pea filed her fourth amended complaint, alleging six causes of action. The District was the sole defendant in the causes of action alleged for wrongful termination based on national origin discrimination, wrongful termination based on retaliation discrimination, intentional infliction of emotional distress, and negligent infliction of emotional distress. De la Pea named the District as well as individual District employees in the defamation cause of action (Chabran and Butler) and in the false imprisonment cause of action (Cataraha and Arnold).

The District and the sued employees moved for summary judgment, with the motion supported by a separate statement of undisputed facts, various declarations (i.e., Cathy Butler, Yolanda Emerson, and Nancy Lamb), portions of deposition testimony, and statistical information. De la Pea opposed the motion, principally with her own self-serving declaration, and filed a separate statement of disputed and undisputed facts.

On April 20, 2006, the court granted the Districts motion for summary judgment. The court found that de la Peas evidence boiled down to her personal belief that she was being discriminated against, and her personal belief that the failure to renew her contract was based on her national origin. The court observed that the District put [de la Pea] to the test of showing that she was performing her job adequately such that she would even be able to make out a prima facie case. De la Pea failed to establish such a prima facie case, which was fatal to her first two causes of action sounding in discrimination.

As to the causes of action for intentional and negligent infliction of emotional distress, the court held that those causes of action were barred by the doctrine establishing workers compensation as her exclusive remedy. Because there was no discrimination, as a matter of law de la Pea could not establish that the compensation bargain had been broken so as to permit those causes of action for emotional distress.

Regarding the cause of action for false imprisonment, the court held that de la Pea had failed to produce competent evidence that she was restrained or that her exit was completely blocked. Although she may not have been able to proceed forward, there was no evidence that she could not have simply turned around and left the area. As to the cause of action for defamation, the court found that de la Pea had failed to produce competent evidence that the alleged statements were defamatory as opposed to rank humor.

Following entry of judgment in favor of the District, this appeal ensued.

DISCUSSION

I. The trial court properly denied de la Peas motion to confirm the arbitration award.

De la Pea contends the trial court erred in denying the motion to confirm the arbitration award because the Board did not act in timely manner in reviewing the award. According to de la Pea, the collective bargaining agreement should have been interpreted to require that the request for review by the president of the District should have included submission of the entire arbitration record, and therefore that the 30-day review period expired prior to the Boards denial of de la Peas grievance. De la Peas suggested interpretation, inserting a 30-day period where none exists in the collective bargaining agreement, is without merit.

Pursuant to the operative terms of the written collective bargaining agreement (article 16, section 16.3.5.1), a request to the Board to review the advisory award must be made within 10 work days, or the award will be deemed adopted by the Board and become final and binding. Here, it is undisputed that the request to review was timely, but de la Pea challenges the next step in the process entailing the Boards acceptance of a request for review.

Specifically, the collective bargaining agreement further provided that [i]f a timely request for review is filed with the Board and accepted, the Board will then undertake review of the entire hearing record and briefs. However, the agreement contained no specific time period as to when the Board was required to receive the record. According to de la Pea, the agreement should be interpreted to require that the record be filed at the same time as the Boards receipt of the Districts request for review. Under such an interpretation, the Board should have acted on the request for review no later than April 26, 2004; i.e., 30 working days (excluding weekends and college spring break) after March 8, 2004, the date the District requested that the Board review the recommended award. Therefore, de la Pea urges that the Boards May 17, 2004, decision was untimely, and that the arbitrators recommendation purportedly became final and binding.

The problem with de la Peas contention is that it is contrary to basic principles of contract interpretation, principles which apply equally to arbitration contracts. (See Victoria v. Superior Court (1985) 40 Cal.3d 734, 738-739.) It is well established that If no time is specified for the performance of an act required to be performed, a reasonable time is allowed. (Civ. Code,  1657.) Also, a contract must be interpreted to honor the intention of the parties. (Civ. Code,  1643.) In construing a contract the intention of the parties is to be ascertained from the writing alone, if possible. (Civ. Code,  1639.) When the language of a contract is plain and unambiguous, it is not a courts prerogative to alter it, to rewrite its clear terms, or to make a new contract for the parties. (Moss Dev. Co. v. Geary (1974) 41 Cal.App.3d 1, 9; see Apra v. Aureguy (1961) 55 Cal.2d 827, 830-831)

In the present case, the language of the contract simply does not specify a 30-day period where de la Pea seeks to read one into the contract. We may not rewrite or alter the terms of the collective bargaining agreement, but may only imply from an unspecified time frame a reasonable time. (Civ. Code,  1657.) Here, (1) the March 8, 2004, request to review the recommended award was nine work days after the award, (2) the Board voted on April 2, 2004, at its next scheduled meeting on the request and received the arbitration record on that same day, and (3) the Board on May 12, 2004, voted to deny the grievance and on May 17, 2004, issued its formal written decision.

Accordingly, under the totality of the circumstances, the Board acted in a reasonable time (Civ. Code,  1657) consistent with the terms of the collective bargaining agreement. Thus, the recommended arbitration award will not be deemed adopted by the Board and rendered final because of any purported delay by the Board, and the trial court did not err in denying the motion to confirm the award.

II. The trial court did not err in denying the petition for writ of administrative mandamus.

De la Pea sought judicial review of the decision of the Board by way of a petition for writ of administrative mandamus. (Code Civ. Proc.,  1094.5.) According to de la Pea, the trial court improperly used the substantial evidence test in reaching its decision to deny the petition, rather than using the independent judgment test, and she further urges that even under the substantial evidence test the court erred. The contention is without merit.

The appropriate test to be applied turns on whether an employee has a vested right in the position held. If a proceeding deprives a person of a fundamental vested right, the independent judgment test is used; if not, the substantial evidence test is used. (Bixby v. Pierno (1971) 4 Cal.3d 130, 143-144.) Here, de la Pea was a probationary employee who held no vested right to be rehired; such an employee must prove competence for future employment. (See Turner v. Board of Trustees (1976) 16 Cal.3d 818, 822-828; Mt. San Antonio College Faculty Assn. v. Board of Trustees (1981) 125 Cal.App.3d 27, 33-35.) Thus, the trial court properly used the substantial evidence test.

De la Peas challenge to the existence of sufficient substantial evidence is also unavailing. We acknowledge that the substantial evidence standard entails a review of the entire record (Young v. Gannon (2002) 97 Cal.App.4th 209, 225) and involves some weighing of the evidence to fairly estimate its worth. (County of San Diego v. Assessment Appeals Board No. 2 (1983) 148 Cal.App.3d 548, 555.) However, it is well settled that all conflicts are resolved in favor of the prevailing party, and that the court must indulge in all legitimate and reasonable inferences to uphold the findings in question (i.e., here, the findings by the Board) if supported by evidence that is reasonable, credible, and of solid value. (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874; Skyway Aviation, Inc. v. Troyer (1983) 147 Cal.App.3d 604, 609.)

In the present case, de la Pea inappropriately overlooks certain facts, challenges witness credibility, or questions school procedures. For example, contrary to de la Peas assertion, even if Chabran had written up de la Pea for the so-called dolly incident (taking a school dolly home without authorization) before soliciting her version of events, it would not negate substantial evidence of de la Peas unauthorized use of school equipment and her inability to work well with support staff. Thus, even discounting the allegation of excessive of use of a printer, there was ample support for de la Peas negative rating regarding her use of facilities and equipment.

Nor is there any merit to de la Peas attempt to justify the so-called book store incident, an issue discounted by the arbitrator but not by the Board. Even if Chabran had encouraged de la Pea to bug book store employees regarding reimbursement of books, there is no reason to completely discount Chabrans testimony. Chabrans description of abusive emails from de la Pea to the employees (i.e., shouting in e-mail by using capital letters, underlining, lots of exclamation points, and strongly worded language) supports a reasonable inference de la Pea went beyond merely bugging the employees. Her lack of collegiality and ability to work well with other was thus properly brought into question.

De la Pea also seeks to discount evidence about her unauthorized absence from class. Regarding the unauthorized absence on July 24, 2002, Chabran spoke with a staff employee (Aracely Tomayo), who took a phone message from de la Pea and then wrote up the absence on an absence notification form, indicating de la Pea had called in after the class was already over.^[5] At the hearing, de la Pea could not recall what time she called in her absence. Regardless of the reason for the absence (a dental emergency) or when de la Pea explained the detailed justification for the absence, her failure to leave a timely message about her absence prior to class violated school policy. Nor was evidence of de la Peas belated call to the office inadmissible hearsay, as it constituted evidence of a statement by a party in the nature of an admission. (Evid. Code,  1220.)

Accordingly, the trial court did not err in denying the petition for a writ of administrative mandamus.

III. The trial court properly sustained the demurrer to the cause of action in the first amended complaint alleging wrongful termination in violation of public policy.

We review an order sustaining the demurrer to a cause of action in accordance with the customary standard of review; i.e., de novo review, whereby we exercise our independent judgment about whether a cause of action is stated as a matter of law. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125; Traders Sports, Inc. v. City of San Leandro (2001) 93 Cal.App.4th 37, 43.) All facts properly pleaded are deemed admitted, and we are not concerned with the likelihood that plaintiff may be unable to prove the claims at trial. (Committee on Childrens Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-214.)

In the present case, the trial court sustained without leave to amend the demurrer to the first cause action in the first amended complaint, which alleged wrongful termination based on a breach of public policy. In sustaining the demurrer, the trial court reasoned that [s]horn of surplusage this is a claim for violation of Education Code section 87610, but the procedural sufficiency of the process by which plaintiffs contract was not renewed was resolved adverse to her by the ruling on her writ petition.

One of the elements of a cause of action for wrongful termination based on a breach of public policy is, of course, the termination of employment which is in violation of public policy. (Holmes v. General Dynamics Corp. (1993) 17 Cal.App.4th 1418, 1426.) Whether or not public policy is violated depends upon several factors: if a constitutional or statutory provision is implicated; if the right inures to the benefit of the public, rather than merely serving the interest of the employee; if the right is well established at the time of the termination; and if the policy is substantial and fundamental. (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 894.)

Here, according to de la Pea, the statutory provision implicated is Education Code section 87610, subdivision (a), which requires that in notifying the employee of the refusal to renew on or before March 15 of the current academic year, the employer must give the reasons therefor. De la Pea does not dispute that she received timely notice, but she complains that the statement of reasons was inadequate. Specifically, de la Pea asserts that the statement in the March 13, 2003, dismissal letter that the Board reviewed your evaluations and my [Joyces] recommendation failed to comply with the statutory duty to state the reasons for not renewing her contract.

We find the letter to constitute adequate notice of the reasons for not renewing her employment contract. The letter clearly incorporated by reference the more detailed information which de la Pea unquestionably already had available to her--specifically, the unfavorable written evaluations and Joyces recommendation that she not be rehired.

Thus, apart from the trial courts finding that the procedural sufficiency of the process by which her contract was not renewed was resolved adversely to her by the ruling on her writ petition, the cause of action alleged has no substantive merit. The demurrer was properly sustained.

IV. The trial court properly granted summary judgment as to the remaining causes of action.

Standard of review.

We review this matter de novo and determine the appeal in accordance with the customary rules of appellate review following summary judgment. (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843-857.) The general rule is, of course, that summary judgment is appropriate where all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. . . . (Code Civ. Proc.,  437c, subd. (c).)

The cause of action alleging wrongful termination because of national origin discrimination.

In a claim of wrongful termination based on prohibited discrimination, the plaintiff must establish a prima facie case of discrimination, which is done by establishing that the discharged plaintiff was within a protected class and performed the job satisfactorily, and that others not in the protected class were retained in similar jobs and/or the job was filled by one not in the protected class. (Mixon v. Fair Employment & Housing Com. (1987) 192 Cal.App.3d 1306, 1318.) Once a prima facie case is established, the presumption of discrimination is established and the burden shifts to the defendant to produce evidence that the adverse action was based upon a legitimate, nondiscriminatory reason. If this is done, then the plaintiff must establish that the discriminatory reason more likely motivated the employer, or that the proffered explanation was a pretext. (Id. at pp. 1317-1319.)

Contrary to de la Peas assertion, she failed to set forth evidence sufficient to establish the prima facie elements of her cause of action for national origin discrimination. De la Pea simply failed to establish that she performed satisfactorily. The Districts evidence established that de la Pea did not perform satisfactorily because of the following: poor interactions with fellow employees; absence from class without giving proper notice; early departure from class; violation of certain policies; and inappropriate and unprofessional behavior.

In the spring of 2002, de la Pea received an unsatisfactory rating on her performance evaluation. Later, in the fall of 2002, she received an overall unsatisfactory rating, with three specific areas wherein her performance was found deficient. The unsatisfactory ratings were supported by numerous events. During her employment, de la Pea attempted to remodel her office (which she shared with two other employees) in a manner lacking in any consideration for their needs or space. De la Pea expressed dissatisfaction with the maintenance staff in an inappropriate manner, several fellow employees complained about her behavior toward them, and she inappropriately accused bookstore personnel of ignoring her. Moreover, de la Pea missed class and failed to follow proper procedures in reporting her absence, released a class early without legitimate reason, and was reluctant to work with a blind student and provide him with the necessary support (which could have exposed the District to a lawsuit). De la Pea also took equipment off campus and when returning the equipment caused a disturbance with campus security, and she allegedly used equipment excessively and contrary to prior instruction. Apparently, de la Pea lacked the collegiality valued in a campus environment and was unable to appropriately interact and work well with others.

Moreover, to refute the notion of any improper discrimination, the District established the diverse profile of its employees, who represented a myriad of national origins. Focusing only on the 40 employees in the communications and languages department where de la Pea was employed, the employee profile for the fall of 2002 was as follows: 11 Hispanics, 1 African-American, 2 Asians, and 26 Caucasians. Additionally, during the relevant time period (2000-2004), Chabran hired twelve people, six of them Hispanic, one Asian, and five Caucasian. Finally, regarding the 10 probationary teachers who were not retained by the college during the relevant time period, three were Hispanic, one Asian, and six Caucasian. It is thus apparent from the foregoing statistics that the employment decisions by the District were not based on national origin.

In opposition to the motion for summary judgment, de la Pea focused on certain statements allegedly made by District administrators. As indicated in de la Peas declaration, in approximately January of 2002, Chabran told her that the vice president of academic services and Chabrans supervisor (Arnold) wanted de la Pea to remove the Mexican dcor from the office she shared with two other employees. Chabran also told de la Pea that she was getting a reputation as a radical Chicana with a big mouth and an attitude. Chabran added that de la Pea was taking it too far and referred to a Chicano studies program and a Chicano literature class she was to teach.

It is well recognized that some remarks by decision makers may be considered stray remarks and thus not probative of discrimination. (See Nidds v. Schindler Elevator Corp. (9th Cir. 1996) 113 F.3d 912, 915, 918-919 [statement by supervisor that he intended to get rid of all the old timers was insufficient to defeat summary judgment].) Even if the remark cannot be ignored as a stray utterance, such a remark does not establish the plaintiffs case, but only assists in showing a prima facie case of disparate treatment. (See Cordova v. State Farm Ins. Companies (9th Cir. 1997) 124 F.3d 1145, 1148-1149.) The burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the employees rejection. (McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802.)

Here, Chabran made the remarks in question more than a year before the recommendation by the human resources director (Cataraha) that the District not renew de la Peas contract for the coming academic year. And, de la Pea points to no other similar remarks. Thus, Chabrans comments about de la Peas big mouth and attitude were remarks that were isolated and too remote in time to actually establish a prima facie case of disparate treatment. To the extent the remarks were probative at all, they arguably revealed a candid, informal advisement to de la Pea about a problem with her inability to get along well with others, and thus her potential unsuitability for retention.

Accordingly, the trial court properly granted summary judgment as to the cause of action for wrongful termination because of alleged national origin discrimination.

The cause of action for wrongful termination based on retaliation because of de la Peas alleged objections to acts of discrimination.

To establish a prima facie case of retaliation, an employee must be engaged in a protected activity and show that the employer subjected the employee to an adverse employment action, and that there was a causal link between the protected activity and the employers action. (Yanowitz v. LOreal USA, Inc.(2005) 36 Cal.4th 1028, 1042.) Here, de la Pea alleged that she was subjected to retaliation for objecting to practices of discrimination based on national origin and ancestry.

However, the undisputed evidence established that de la Pea raised no complaints of discrimination based on national origin or ancestry during her employment. De la Peas focus on her remark to Chabran during her employment in late 2002, about a hostile environment because of her unfavorable work evaluations causing tension and pressure, is unavailing. Although [a]n employee is not required to use legal terms or buzzwords when opposing discrimination (Yanowitz v. LOreal USA, Inc., supra, 36 Cal.4th at p. 1047), in the present case it is difficult to believe that de la Pea would have been coy or subtle about purported discrimination based on national origin and ancestry.

In the context here, it is apparent that de la Peas mere assertion of a hostile environment because of her unfavorable evaluation was insufficient to support the specific retaliation claim raised later. Summary judgment was thus properly granted as to that cause of action.

The cause of action alleging defamation.

De la Peas only complaint in her opening brief concerning the defamation cause of action focuses on comments by the director of student activities (Butler). According to de la Pea, in March of 2003, Butler telephoned students who belonged to the MEChA student club to dispel a rumor she said de la Pea had been spreading to the effect that de la Pea was disbanding MEChA, and that she would not be taking the club members to Berkeley the following day for a convention. De la Pea asserted that when asked by the students what was happening, Butler replied that she would not comment on de la Peas character or state of mind, whatever it is, allegedly leaving students with the impression that de la Pea was mentally unstable.

Defamation results from slander (Civ. Code,  44), which is a false and unprivileged publication, orally uttered . . . which [inter alia] [t]ends directly to injure [a person] in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits. (Civ. Code,  46.)

Here, Butlers statement that she would not comment on de la Peas character or state of mind, whatever it is did not, in the language of the statute, tend directly to injure de la Pea in respect to her profession by imputing to her a general disqualification in those respects which the office or other occupation peculiarly requires. (Civ. Code,  46.) The comment by Butler was, in fact, literally a noncomment about de la Peas character. Although de la Pea claims the remark left students with the impression that she was mentally unstable, on appeal she cites to nothing in the record from any student or other person present to support that claim. Such opposition to summary judgment is insufficient because it is essentially argumentative and based on conjecture or speculation. (Joseph E. Di Loreto, Inc. v. ONeill (1991) 1 Cal.App.4th 149, 161; ONeil v. Dake (1985) 169 Cal.App.3d 1038, 1044; Baron v. Mare (1975) 47 Cal.App.3d 304, 309, 311.)

Accordingly, the trial court properly granted summary judgment as to the cause of action alleging defamation.

The cause of action alleging false imprisonment.

De la Pea contends she alleged sufficient facts to take the issue of false imprisonment to trial. We disagree, because there simply was insufficient evidence of the requisite intentional confinement without her consent. (Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 715.)

De la Pea urges that when she was on her way to her classroom, Arnold and Cataraha blocked her way for approximately five minutes and until campus police assigned to escort her off campus appeared, and that this constituted false imprisonment. However, it is uncontested that the area where de la Pea felt trapped was a large area with two doors, one on either side of the room. De la Pea could have simply left the room through the door by which she had entered, because there was no evidence that other doorway was blocked.

Thus, the trial court properly granted summary judgment as to the cause of action alleging false imprisonment.

The causes of action alleging emotional distress.

Because, as previously discussed, de la Pea cannot establish a cause of action for discrimination, the causes of action for intentional and negligent infliction of emotional distress are barred by the exclusivity of workers compensation as her sole remedy. It is well established that where misconduct attributed to the employer consists of actions which are a normal part of the employment relationship, such as criticism of work practices, an employee suffering emotional distress causing disability may not avoid the exclusive remedy provisions of the Labor Code. (Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 160.) Therefore, the trial court properly granted summary judgment as to the causes of action alleging emotional distress.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS.

BOREN, P.J.

We concur:

DOI TODD, J. CHAVEZ, J.

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^[1] The District administrators named as defendants include President Rose Marie Joyce, Executive Vice President Voiza Arnold, Dean of the Division of Communications and Languages Gail Chabran, Director of Human Resources Ron Cataraha, and Director of Student Activities Cathy Butler.

^[2] The underlying factual allegations are summarized as alleged in the fourth amended complaint.

^[3] We note that the terms of the collective bargaining agreement provided that the decision of the arbitrator was to be in the form of a recommendation to the Board, and that if neither party requested the Board to review the matter within ten (10) work days of its issuance, the decision would be deemed adopted by the Board and . . . final and binding on all parties.

^[4] The terms of the collective bargaining agreement specify that the Board must render its decision within thirty (30) work days after receiving the record, and if it does not do so, then it will be deemed to have adopted the decision recommended by the arbitrator.

^[5] We note that in de la Peas fourth amended complaint, she acknowledged calling in to advise Chabran of her absence during the time the class was supposed to be held, and thus not prior to the time.