Preston v. Sasco Electric

Filed 5/16/07 Preston v. Sasco Electric CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

In this action for employment discrimination and wrongful termination, plaintiff Ronald Preston alleged that he had been harassed, discriminated and retaliated against, and wrongfully discharged by his employer, defendant Sasco Electric (SASCO),[1]and his supervisor, defendant Kevin Kincaid. The superior court granted defendants' motion for summary judgment based on the untimeliness of plaintiff's claim and on the insufficiency of the evidence of intentional discrimination. On appeal, plaintiff challenges the court's evaluation of the evidence, its factual inferences, and its legal conclusions with respect to all of the causes of action. We agree with plaintiff that triable issues exist in this lawsuit. Accordingly, we must reverse the judgment.

Procedural Background

Plaintiff was hired by SASCO in 1999 and progressed through the ranks from apprentice to foreman until his employment was terminated on February 28, 2003. In December 2003, he filed a complaint of discrimination with the Department of Fair Employment and Housing, which notified him of his right to sue under the Fair Employment and Housing Act (FEHA). In April 2004 he filed this lawsuit. The following month, he obtained an amended DFEH charge, and shortly thereafter he filed his first amended complaint. That pleading contained five causes of action: discrimination based on race (plaintiff "is and was, at all times material herein, an African American"); harassment based on race; unlawful retaliation; tortious discharge in violation of public policy; and negligent hiring, training, and supervision of Kincaid.

Defendants moved for summary judgment or, alternatively, summary adjudication. They argued that (1) all of the discrimination-related claims were beyond the one-year limitations period defined in Government Code sections 12960 and 12965;[2](2) the negligent-hiring cause of action was preempted by the Labor Management Relations Act of 1947, 29 United States Code section 185(a) ("LMRA") and by workers' compensation; and (3) the evidence did not support plaintiff's allegations. Defendants further argued that the harassment and retaliation claims were precluded by plaintiff's failure to raise them in his original DFEH complaint.

The superior court granted defendants' motion on the grounds that the harassment claim was barred by the statute of limitations, the retaliation claim was barred by plaintiff's failure to exhaust his administrative remedies, and the remaining claims were not supported by evidence sufficient to withstand adjudication as a matter of law. This appeal followed.

Discussion

1. Scope and Standard of Review

Summary judgment is appropriate "if 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).) A defendant who moves for summary judgment or summary adjudication bears the initial burden to show that the action or cause of action has no meritthat is, "that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action." (Code Civ. Proc., 437c, subds. (a), (p)(2).) The defendant can satisfy that burden by presenting affirmative evidence that negates an essential element of plaintiff's claim or by submitting evidence "that the plaintiff does not possess, and cannot reasonably obtain, needed evidence" supporting an essential element of its claim. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 855.)

Once the defendant has met that burden, the burden shifts to the plaintiff "to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The plaintiff . . . may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists, but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto." (Code Civ. Proc., 437c, subd. (p)(2); Lyle v. Warner Bros. Television Productions (2006) 38 Cal.4th 264, 274.)

On appeal, we conduct a de novo review of the record to "determine with respect to each cause of action whether the defendant seeking summary judgment has conclusively negated a necessary element of the plaintiff's case, or has demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial, such that the defendant is entitled to judgment as a matter of law." (Guz v. Bechtel Nat., Inc., supra, 24 Cal.4th at p. 334; Lyle v. Warner Bros. Television Productions, supra, 38 Cal.4th at p. 274.) We apply "the same three-step analysis as that of the trial court: (1) identification of issues framed by the pleadings; (2) determination of whether the moving party has established facts [that] negate the opponent's claim and justify a judgment in movant's favor; and (3) determination of whether the opponent demonstrates the existence of a triable, material factual issue." (Varni Bros. Corp. v. Wine World, Inc. (1995) 35 Cal.App.4th 880, 887; see also Knapp v. Doherty (2004) 123 Cal.App.4th 76, 84-85.) "We need not defer to the trial court and are not bound by the reasons for the summary judgment ruling; we review the ruling of the trial court, not its rationale." (Knapp v. Doherty, supra, 123 Cal.App.4th at p. 85.)

2. The Pleadings

Because summary judgment review is defined by the issues raised in the pleadings, we first direct our attention to the material allegations of plaintiff's complaint. Thefirst cause of action for racial discrimination in violation of the FEHA was based on plaintiff's allegation that SASCO "knew that plaintiff was an African American but, in violation of the FEHA, discriminated against plaintiff by subjecting him to hostile and offensive racial comments, treating him unfavorably and adversely compared to similarly situated white employees, and terminating his employment because of his race." The second cause of action alleged that defendants had, "in violation of the FEHA, harassed plaintiff based on his race by subjecting him to a hostile and offensive work environment marked by degrading racial comments, and unfavorable and adverse treatment compared to similarly situated white employees." The third cause of action against all defendants was for retaliation: After plaintiff complained of "acts he reasonably believed were racially discriminatory and therefore unlawful," defendants retaliated against him "by treating him unfavorably and adversely compared to similarly situated white employees, and terminating his employment because of his race." The fourth cause of action, for tortious discharge in violation of public policy, alleged that SASCO had "discriminated against plaintiff based on his race and retaliated against plaintiff for complaining of acts he reasonably believed were racially discriminatory and therefore unlawfulby terminating his employment." The fifth cause of action alleged that SASCO had a duty under the FEHA to "prevent and stop unlawful racial discrimination and retaliation against plaintiff." SASCO breached that duty "by failing to exercise reasonable care in hiring, training and supervising Kevin Kincaid to prevent and stop him from discriminating against plaintiff based on his race and from retaliating against plaintiff for complaining of acts he reasonably believed were racially discriminatory and therefore unlawful."

The complaint specifically set forth the following factual allegations. Plaintiff was working on a project in June 2001 when defendant Kincaid, who was then the project coordinator, said to plaintiff "out of the blue," "Hey bro, I don't fuck with the blacks." Plaintiff was stunned and asked Kincaid what he meant. Kincaid replied, "Naw bro, just playing." The next day, still disturbed by the exchange, plaintiff pressed for further explanation. According to the complaint, "Kincaid told Preston that he once lived on the South Side of Chicago and shot a black man for selling drugs to his daughter. He explained that he did two years in the penitentiary for it and that he 'will not take any shit.' " Plaintiff reported the comments to his supervisor, Dave Dawson. The following day, the Data Division superintendent, Chris Greene, along with Kincaid, talked to Preston. Greene told Preston that Kincaid would not make such comments again, and Kincaid told plaintiff that he would make sure that plaintiff "was not let go because [Kincaid] knew that Preston had children and had just recently bought a condominium."

In September 2001 Kincaid was promoted to superintendent and became plaintiff's direct supervisor. In January 2002 Kincaid said that there was not enough work. He gave plaintiff one or two days of work per week that month and during the first half of February. Even though assignments were supposed to be made based on seniority under the union contract, some of the less senior foremen were still working full time.

Toward the end of February Kincaid told plaintiff that there was no work. Plaintiff suspected that Kincaid was lying and told a senior manager, John Anderson, about the racial comments. Anderson said there had been several other complaints about racial remarks, and later another employee told plaintiff that he had complained to the "owner" of SASCO about a "racial incident" he had had with Kincaid.

Kincaid put plaintiff back to work in early March 2002, but not as a foreman; instead, he worked under another foreman, Tom Donahue. In April during a performance review, Kincaid told plaintiff that everything was fine except plaintiff's appearance. When plaintiff asked what was wrong with his appearance, Kincaid said, "Nothing except you're black!" He then laughed and walked away. Plaintiff complained about this new comment to Donahue and to others; one employee told plaintiff that he had heard Kincaid make "racial remarks" to other employees and that Kincaid had "laid off several employees, mostly minority, without regard to seniority."

Soon after making the complaint to Donahue, Kincaid started to "harass" plaintiff by criticizing the speed at which plaintiff was working. Then Kincaid "demonstrated his favoritism for white employees" over plaintiff by giving a young white employee greater responsibility than plaintiff in spite of the employee's inexperience and lack of seniority. Plaintiff was ordered to correct the other employee's errors and re-do the work. In the fall of 2002, Kincaid reduced plaintiff's hours again so that he was working about half-time or less. Finally, in November, Kincaid told Preston that there was no work, but he should "keep in touch." Plaintiff knew that several other employees with lower seniority were working at that time.

Plaintiff called Kincaid repeatedly, but in mid-December Kincaid said he did not expect any work for him until January. Plaintiff began calling again in early January 2003, until Kincaid asked him to call weekly instead of daily. In mid-February Kincaid asked plaintiff to turn in his company truck and cell phone. Plaintiff made arrangements for someone to pick up the truck, but after it was returned, Kincaid left plaintiff a message threatening to call the police if plaintiff did not return the truck.

On February 28, 2003, plaintiff received a termination letter, which was "full of lies." The letter said that plaintiff had refused to return Kincaid's telephone calls and had abandoned his job.[3]

3. Defendants' Showing

a. Race Discrimination and Tortious Discharge

On appeal, plaintiff contends that the trial court's ruling on the first cause of action was "fatally flawed" because the court thought that the reason for his termination was lack of work, whereas the stated reason was job abandonment. Plaintiff does not explain why reversal is required based on this misstatement or misperception, however. It is established that in reviewing summary judgments, we "are not bound by the reasons for the summary judgment ruling; we review the ruling of the trial court, not its rationale." (Knapp v. Doherty, supra, 123 Cal.App.4th at p. 85; Daly v. Yessne (2005) 131 Cal.App.4th 52, 58.) In any event, there is no indication in the record that the trial court failed to consider all of the assertions and supporting evidence related to the reasons for plaintiff's termination.

With specified exceptions, the FEHA prohibits as an "unlawful employment practice" the refusal of employment to a person based on that person's race, the discharge of that person from employment, and discrimination against the person "in compensation or in terms, conditions, or privileges of employment." (Gov. Code,  12940, subd. (a).) In a discrimination case, an employer moving for summary judgment bears the initial burden of producing evidence to show that it did not engage in prohibited conduct. (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1730.) Typically, the employer adduces evidence of legitimate reasons for the adverse employment decision. (Id. at p. 1731.)

Once the employer makes the necessary evidentiary showing, the burden shifts to the employee, who must produce evidence that the employer's stated reasons were false or pretextual, or that the employer acted with a discriminatory animus. (Guz v. Bechtel Nat., Inc., supra, 24 Cal.4th at p. 357; Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 225.) It is not sufficient for an employee opposing summary judgment to make a bare prima facie showing of discrimination or to speculate as to discriminatory motive. (Martin v. Lockheed Missiles & Space Co., supra, 29 Cal.App.4th at p. 1735.) Rather, it is incumbent upon the employee to produce " 'substantial responsive evidence' " demonstrating the existence of a material factual dispute as to pretext or discriminatory animus on the part of the employer. (Ibid., quoting University of Southern California v. Superior Court (1990) 222 Cal.App.3d 1028, 1039; accord, Hanson v. Lucky Stores, Inc., supra, 74 Cal.App.4th at p. 224.) "For this purpose, speculation cannot be regarded as substantial responsive evidence." (Martin v. Lockheed Missiles & Space Co., supra, 29 Cal.App.4th at p. 1735.)

In their separate statement of facts, defendants presented evidence supporting the assertion that plaintiff was terminated because Kincaid believed in good faith that plaintiff had abandoned the job, having failed to return Kincaid's telephone calls about available work. In his deposition Kincaid said that he had made "numerous" between 10 and 20-- phone calls in January and February to give plaintiff work. Most of the time Kincaid left a voice-mail message; about 10 percent of the calls reached Kincaid's mother, with whom plaintiff was living at the time. Plaintiff's mother admitted receiving three messages on her machine from Kincaid, although one of those was Kincaid's threat

to return the truck.[4] Defendants asserted that plaintiff had not returned these calls.

Defendants also explained that the work performed by employees at SASCO was seasonal and could vary from week to week. Defendants attributed the decline in hours to the economic downturn that followed the "dot-com bust" and the terrorism attacks of September 11, 2001. The Data Division in which plaintiff worked shrank from 286 employees in 2000 to 89 employees in October 2001, and the number continued to decline to 26 employees by the time of the summary judgment motion. The revenue in the Data Division fell 37.6 percent between 2001 and 2002. Defendants thus asserted that the reduced hours plaintiff had received was the result of the decline in his employer's business. They also pointed out that January and February were typically the slowest months for work in the Data Division. Responding to plaintiff's claim that he received fewer hours than white employees with less seniority, defendants pointed out that he received 36 hours more than the "favored" group's average in 2001 and 125 fewer hours in 2002, amounting to 89 hours less over a two-year period. Defendants suggested that had plaintiff not been jailed for four to five days in 2002, he would have worked the same number of hours as the allegedly "favored" employees.[5] During January and February, it was a white employee who had the fewest hours, not plaintiff. Finally, Kincaid explained that SASCO did not permit "bumping," which involves a senior employee taking a less senior employee's work assignment because the more senior employee's job assignment has ended.

Defendants thus supplied evidence that economic conditions, rather than racial hostility, accounted for the lack of work offered to plaintiff in 2002 and early 2003. Defendants also provided evidence supporting their assertion that plaintiff was terminated because he was thought to have abandoned the job. Plaintiff responded to this showing, however, with specific evidence of Kincaid's "strong racial animus against African Americans." He disputed Kincaid's estimate of the number of calls he had received about work availability. He provided a different set of employees with whom he was comparing his assigned hours during 2002 and early 2003.[6] And he presented declarations and deposition testimony from Dave Dawson and Tom Donahue supporting his account of Kincaid's racial slurs and Kincaid's use of the term "nigger." Donahue recalled witnessing the evaluation when Kincaid told plaintiff that everything was "[o]kay, except you're black." Donahue also thought that one time he heard Kincaid use the derogatory term "nigger" in describing the shooting, although Kincaid "might have said a black guy."

Other employees testified to more general indications of Kincaid's racial animus. In former superintendent Dawson's declaration he said that Kincaid was "very prejudiced against blacks" and had on several occasions "used the term 'niggers' to refer to black employees at SASCO." Gilberto Marlow, also a former SASCO foreman, heard Kincaid refer to another black employee as a "fucking nigger" who was "always fucking up the projects." Garth Holden, a white employee, related an occasion on which Kincaid told a racial joke "about black people" in front of Holden and a black coworker. Perry Palmer, another former SASCO employee who identified himself as African American, stated that upon being introduced to Palmer, Kincaid said to the coworker making the introduction, "You know I don't like black folks anyway." Palmer further stated that Kincaid used abusive language toward almost everyone, "but when it came to yelling at people, he mostly yelled at the black and Hispanic employees."

From this evidence, together with the parties' dispute over telephone contacts about work availability, we conclude that plaintiff produced "substantial responsive evidence" that Kincaid's proffered reasons for reducing and then terminating plaintiff's work hours were false or pretextual. Whether the remarks directed at plaintiff were in fact only "stray" comments by "the kind of man who will joke with people" or indications of a "strong racial animus against African Americans" is for the trier of fact to decide. (Cf. Green v. Dillard's, Inc. (8th Cir. 2007) ___ F.3d ___ [2007 WL 1012941] [store employee's calling customers "niggers" is direct evidence of discriminatory intent for purposes of 42 U.S.C.  1981 action].) Likewise, whether plaintiff can prove that Kincaid did not fairly offer plaintiff work in 2002 and early 2003 is a question of fact for trial. Sufficient evidence of pretext exists in the discovery responses produced by plaintiff. Accordingly, the causes of action for racial discrimination and wrongful discharge in violation of public policy withstand defendants' summary adjudication motion.

b. Harassment

The first four causes of action of plaintiff's first amended complaint were based on violations of the FEHA. Defendants asserted that plaintiff had failed to exhaust his administrative remedies for any acts occurring before December 19, 2002, because he received his right-to-sue letter from DFEH on December 19, 2003. On appeal, defendants apply this argument to the second and third causes of action, for harassment and retaliation.

Government Code section 12960 states that an aggrieved employee must file an administrative complaint with DFEH and receive a notice of his or her right to sue before bringing suit under the FEHA. (Martin v. Lockheed Missiles & Space Co., supra, 29 Cal.App.4th at p. 1724.) The employee generally has one year from the date of the unlawful practice to file the administrative complaint. ( 12960, subd. (d).) "[E]xhaustion of administrative remedies furthers a number of important societal and governmental interests, including: (1) bolstering administrative autonomy; (2) permitting the agency to resolve factual issues, apply its expertise and exercise statutorily delegated remedies; (3) mitigating damages; and (4) promoting judicial economy." (Rojo v. Kliger (1990) 52 Cal.3d 65, 86; Grant v. Comp USA, Inc. (2003) 109 Cal.App.4th 637, 644.) Once the right-to-sue letter is issued, the employee has one year to file a FEHA lawsuit. (Gov. Code, 12965, subd. (b).)

The allegation of harassment by maintaining a hostile work environment apparently related to three events.[7] The first two were the June 2001 remark, "Hey bro, I don't fuck with the blacks," and the explanation about having "shot a black man for selling drugs to his daughter." The third occurred in April 2002, when Kincaid told plaintiff during his performance review that everything was fine "except you're black."

Defendants' primary challenge to this cause of action was that Kincaid did not make any harassing comments within the one-year period permitted by the FEHA. Plaintiff responded that the harassment claim encompassed the reduction and termination of his hours in late 2002 and early 2003. On appeal he maintains that he offered evidence of the cessation of work offers in late 2002 and early 2003, the threat to call the police for not turning in the truck, and the termination of employment for a "false" reason (failing to return Kincaid's telephone calls). This conduct, according to plaintiff, constituted a "hostile work environment."

To establish a prima facie case of harassment, plaintiff must show that he was subjected to a hostile work environment based on his race or national origin, and that the harassment was sufficiently severe or pervasive so as to alter the conditions of employment and create an abusive work environment. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 130.) Harassment may include racial epithets and racially derogatory comments; physical interference with normal work movement; and racially derogatory posters, cartoons or drawings. (Cal. Code Regs, tit. 2,  7287.6, subd. (b)(1).)[8]

Harassment, however, is distinct from discrimination. (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 64-65 (Janken).) Reduction in hours amounts to a personnel decision which "might result in discrimination, but not in harassment." (Id. at p. 63.) "As [California Code of Regulations, title 2, section 7287.6, subdivision (b)(1)] implies, harassment consists of a type of conduct not necessary for performance of a supervisory job. Instead, harassment consists of conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives. Harassment is not conduct of a type necessary for management of the employer's business or performance of the supervisory employee's job." (Ibid.)

By contrast, "Making a personnel decision is conduct of a type fundamentally different from the type of conduct that constitutes harassment. Harassment claims are based on a type of conduct that is avoidable and unnecessary to job performance. No supervisory employee needs to use slurs or derogatory drawings, to physically interfere with freedom of movement, to engage in unwanted sexual advances, etc. in order to carry out the legitimate objectives of personnel management. Every supervisory employee can insulate himself or herself from claims of harassment by refraining from such conduct. An individual supervisory employee cannot, however, refrain from engaging in the type of conduct which could later give rise to a discrimination claim. Making personnel decisions is an inherent and unavoidable part of the supervisory function. Without making personnel decisions, a supervisory employee simply cannot perform his or her job duties." (Id. at p. 64, fn. omitted.)

Racial slurs, on the other hand, unquestionably constitute harassment, and they are actionable if they are so severe or pervasive that they alter the conditions of employment and create a hostile work environment. (Cf. Lyle v. Warner Bros. Television Productions, supra, 38 Cal.4th at p. 291.) To be "pervasive," the harassment " 'cannot be occasional, isolated, sporadic, or trivial[;] rather the plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature.' . . . " (Aguilar v. Avis Rent A Car System, Inc., supra, 21 Cal.4th at p. 131.)

Plaintiff filed his original complaint with DFEH on December 19, 2003. Accordingly, he properly could have alleged harassing conduct occurring up to one year before that date. However, of the three alleged racial remarks directed at plaintiff, two occurred in 2001 and one in April 2002, all outside the statutory limitations period. We agree with the trial court that the allegation based on these remarks was untimely.[9]

Moreover, plaintiff did not allege harassment in this complaint; he did state that Kincaid had made "comments about [his] race," but that allegation was made to support his claim that he was discharged because of his race. Under the FEHA, an aggrieved employee "must exhaust the administrative remedy provided by the statute by filing a complaint with the [DFEH] and must obtain from the Department a notice of right to sue in order to be entitled to file a civil action in court based on violations of the FEHA. [Citations.] 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.) "To exhaust his or her administrative remedies as to a particular act made unlawful by the [FEHA], the claimant must specify that act in the administrative complaint, even if the complaint does specify other cognizable wrongful acts." (Martin v. Lockheed Missiles & Space Co., supra, 29 Cal.App.4th at p. 1724.)

Plaintiff argues that the harassing remarks were part of a continuing violation of the FEHA. In order to establish the applicability of this doctrine, a plaintiff must show that "the employer's unlawful actions are (1) sufficiently similar in kind-recognizing . . . that similar kinds of unlawful employer conduct, such as acts of harassment . . . , 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'  . . . should properly be understood to mean  . . . 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." (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 823.) The statute of limitations thus "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." (Ibid; see also Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1059 [continuing violations doctrine applicable in retaliation cases].)

Here we agree with the trial court that the reduction in work assignments and termination of employment were not sufficiently similar to the disparaging racial remarks that occurred outside the limitations period. And as discussed above, these were personnel decisions, not acts of harassment. Accordingly, the continuing violations doctrine is inapplicable here. The trial court correctly adjudicated this cause of action as a matter of law.

c. Retaliation

The trial court similarly ruled that plaintiff had failed to exhaust his administrative remedy with respect to the retaliation claim.[10] Plaintiff maintains that exhaustion of administrative remedies did not bar his retaliation and harassment claims because he amended his DFEH complaint in May 2004 to allege retaliation and harassment.[11] He also points to his pre-complaint questionnaire, where he circled "Retaliation" and "Harassed" as well as "Terminated/Laid Off." In that document he stated that after he reported the racial remark of April 2002, Kincaid "began harassing me and later reduced my hours and then fired me." The amended claims therefore "relate back to his original, timely DFEH charge because they are supported by the original factual allegations." Plaintiff further argues that the failure to include retaliation in his initial DFEH charge was the fault of the DFEH, not him. Consequently, he argues, the one-year limitations period "should be tolled on equitable grounds."

As defendants point out, the pre-complaint questionnaire was not authenticated and plaintiff offered no evidence that provided a foundation for its admission. There are no entries on the document in the spaces marked "For Official Use Only," which allow DFEH to specify the interview date, processing time, and action taken, among other things. The trial court properly disregarded this document.

Nevertheless, we agree with plaintiff that the alleged acts of retaliationcutting plaintiff's hours, unjustifiably criticizing his performance on the job,[12]and terminating himwere sufficiently related to the earlier discrimination as to be encompassed in the DFEH complaint. As in Baker v. Children's Hospital Medical Center (1989) 209 Cal.App.3d 1057, "it is reasonable that an investigation of the allegations in the original DFEH complaint would lead to the investigation of subsequent discriminatory acts undertaken by [defendants] in retaliation for [plaintiff's] filing an internal grievance." (Id. at p. 1065.)

Defendants argue that Baker is distinguishable because there "the relevant events took place over a few months," whereas here the layoff and termination occurred more than one year after the June 2001 complaint to management. This position calls for factual assumptions we may not indulge on summary judgment. Whether the retaliatory acts are measured by the work reduction and termination or by earlier events (such as, according to plaintiff, the reduction in hours in early 2002) presents an issue for trial, not adjudication as a matter of law.

d. Negligent Hiring and Supervision

In the fifth cause of action plaintiff alleged that SASCO had breached its duty to "prevent and stop unlawful racial discrimination and retaliation" by "failing to exercise reasonable care in hiring, training and supervising Kevin Kincaid to prevent and stop him from discriminating against plaintiff based on his race and from retaliating against plaintiff for complaining of of [sic] acts he reasonably believed were racially discriminatory and therefore unlawful." The court ruled that SASCO had established that plaintiff would not be able to establish breach of duty in either the hiring or the supervision of Kincaid.

Plaintiff relied on the following evidence in support of the allegation of negligent hiring. Before he was hired Kincaid told Chris Greene, the division superintendent, the details of his felony conviction for shooting a black man who had sold drugs to Kincaid's daughter. During his deposition Bill Breyton was reminded of having heard "something" about Kincaid having shot a black man in Chicago, but he "dismissed it" and made no effort to determine its veracity. Plaintiff referred to Breyton as Group President, but Dave Dawson's declaration indicated that Breyton assumed that position after Kincaid made his June 2001 remark to plaintiff. According to Dawson, it was he, not Greene or Breyton, who hired Kincaid.

Plaintiff did not supply evidence raising a triable issue of fact as to whether the facts surrounding Kincaid's conviction were known to Dawson when Kincaid joined the company. Even if Dawson was aware of those details, the trial court correctly determined that an insufficient nexus existed between the shooting and Kincaid's suitability for employment. The victim's race and reason for the assault were not automatic signs that Kincaid should not be hired or later allowed to supervise minority employees.

As to training, SASCO provided evidence that it had conveyed to Kincaid that the company was "100 percent against" employment discrimination. Kincaid had attended a seminar led by SASCO management covering the subjects of sexual harassment and racial discrimination, and he knew that the employee handbook reflected SASCO's policy against discrimination.

The claim of negligent supervision, on the other hand, withstands summary adjudication. Plaintiff's evidence suggests that Kincaid was unrestrained in his racial invective, whether directed at plaintiff personally, other SASCO employees, or African Americans in general. If plaintiff can prove discrimination at trial, he may be able to show that SASCO was liable for failing to prevent such conduct by adequate supervision. Thus, as to negligent supervision of Kincaid, the fifth cause of action survives defendants' summary judgment motion.

Disposition

The judgment is reversed, and the matter is remanded for trial or other disposition on the first, third, fourth, and fifth causes of action in plaintiff's first amended complaint. Plaintiff is entitled to his costs on appeal.

______________________________

ELIA, J.

WE CONCUR:

_____________________________

RUSHING, P. J.

_____________________________

PREMO, J.

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[1]Plaintiff named "SASCO Electric" and "SASCO/Valley Electric" as defendants. They will be referred to collectively as SASCO.

[2] Defendants also cited Code of Civil Procedure section 335.1 as a bar to the wrongful-discharge claim, but they erroneously stated that the limitations period was one year. As plaintiff pointed out, a plaintiff has two years to bring an injury caused by the wrongful act or neglect of another.

[3]The actual termination notice indicated that plaintiff had quit, with a note saying, "Job abandonment[,] would not respond to phone calls."

[4] Kincaid testified in his deposition that SASCO management had asked him to retrieve all trucks from foremen who were not "running a project" at that time.

[5]Plaintiff testified that he had spent four or five days in jail for striking his children's mother in late September 2002.

[6] Defendants challenged the accuracy of these numbers in their reply brief, pointing to discrepancies and omissions in the new exhibit. They also provided a declaration from Kincaid explaining the reasons for each employee's termination in 2002 and 2003. This dispute is but one facet of a larger factual issue regarding the circumstances surrounding plaintiff's termination.

[7] Defendants suggested a fourth incident, based on Kincaid's deposition testimony: In the summer of 2001 Kincaid was talking with Chris Greene when plaintiff approached them to ask if he needed to be a part of the conversation. Kincaid said, "You're black. You wouldn't understand anyway." According to Kincaid, plaintiff did not show any reaction to this statement, but he later complained to Greene, who talked to Kincaid about it. We note, however, that plaintiff did not rely on or even describe this incident; in fact, he disputed defendants' assertion that the conversation had taken place in the summer of 2001. He offered no evidence that it occurred on another occasion; instead, he suggested that defendants had misstated the June 2001 "Hey bro" remark. We infer from this position that, according to plaintiff, there was no separate racial comment directed at plaintiff by Kincaid apart from the one alleged in the complaint. Indeed, plaintiff testified in his deposition that after the "Hey bro" incident in June 2001, he "didn't have any problems with [Kincaid] or anything." In his subsequent opposition to defendants' motion, he disputed this statement, saying he had had "major problems" with Kincaid because Kincaid had "unfairly cut his hours in Jan.-Feb. 2002, made another offensive racial remark to plaintiff in April 2002, forced plaintiff to work overtime correcting the errors of a favored white employee, drastically cut all his hours in late 2002 and 2003, threatened to call the police on him in February 2003 and then terminated him based on false accusations in February 2003."

[8] California Code of Regulations, title 2, section 7287.6, subdivision (b)(1) provides: "(1) Harassment includes but is not limited to: [] (A) Verbal harassment, e.g., epithets, derogatory comments or slurs on a basis enumerated in the Act. [] (B) Physical harassment, e.g., assault, impeding or blocking movement, or any physical interference with normal work or movement, when directed at an individual on a basis enumerated in the Act. [] (C) Visual forms of harassment, e.g., derogatory posters, cartoons, or drawings on a basis enumerated in the Act . . . ."

[9] We question whether the second was properly characterized as a harassing remark in any event. Kincaid told plaintiff that he had shot a black man for selling drugs to his daughter. According to plaintiff himself, Kincaid said this in response to plaintiff's having "pressed for further explanation" of the "Hey bro" remark. Kincaid apologized and reassured plaintiff that he was doing a good job. The two shook hands and plaintiff "decided to try to move on." The same day plaintiff reported the incident to Dave Dawson, the division superintendent. Greene later reprimanded Kincaid in plaintiff's presence, the three of them shook hands, and they "moved on from there." The next racial remark would have been eight to 10 months later, during plaintiff's 2002 performance evaluation.

[10]Although the court misrepresented the timing of the first amended complaint in relation to the amended DFEH charge, that mistake is not dispositive.

[11] Plaintiff adds a footnote to include harassment in his discussion of the effect of the amendment. As already discussed, however, the harassment claim is barred for untimeliness independent of this issue.

[12] When asked about how Kincaid was treating him unfairly in 2002, plaintiff noted "times when he would come to the job, Tom[ Donahue's] job site and tell me that, 'You need to hurry up' and this and that,  . . . and then I would talk to Tom later and he would tell me that this job was going good, and then Kevin [Kincaid] would come in at different times and tell me that this job's behind, you're fucking up, this and that, and I felt that was discriminatory. And I would later talk to Tom and Tom would . . . say, 'Hey, dude, we have this many hours. We're doing good, man, trust me. If we were doing bad, then I would pull more people on this job and get it done.' "