[lg policy] Language and national origin discrimination case: BUENVIAJE v. PACIFIC BELL DIRECTORY

Sat Mar 26 16:55:24 UTC 2011

BUENVIAJE v. PACIFIC BELL DIRECTORY
ANGELINE BUENVIAJE, Plaintiff and Appellant,
v.
PACIFIC BELL DIRECTORY et al., Defendants and Respondents.

No. G043321.

Court of Appeals of California, Fourth District, Division Three.

Filed March 24, 2011.
The Natividad Law Firm and Caesar S. Natividad for Plaintiff and Appellant.
Paul, Plevin, Sullivan & Connaughton, Michael C. Sullivan and Michael
J. Etchepare for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
OPINION
FYBEL, J.

INTRODUCTION

Plaintiff Angeline Buenviaje appeals from a summary judgment entered
in favor of her former employer Pacific Bell Directory and PBD
Holdings (collectively referred to as defendant), as to her claims for
national origin discrimination, violation of Government Code section
12951, and wrongful termination in violation of public policy. (All
further statutory references are to the Government Code unless
otherwise specified.) The gravamen of plaintiff's complaint is that
defendant implemented and enforced an English-only language policy in
the workplace, which ultimately resulted in the termination of her
employment. Plaintiff was born in the Philippines and speaks Tagalog
as well as English.
We affirm. In support of its motion for summary judgment, defendant
produced undisputed evidence it received many complaints from
employees that plaintiff acted like a workplace bully who called
coworkers offensive names, was constantly disruptive, and, on one
occasion, expressed the desire to kill a co-employee to whom she
referred to, in Tagalog, as the devil. Defendant's evidence showed
that following its investigation of the complaints, it concluded
plaintiff engaged in misconduct and terminated her employment for that
reason. Plaintiff failed to produce any evidence that showed
defendant's asserted legitimate business reason for terminating
plaintiff's employment was a pretext for intentional discrimination.

Plaintiff produced evidence defendant directed her and three of her
coworkers, with whom she ridiculed other employees in Tagalog, to
refrain from communicating in Tagalog at work; she produced no
evidence she suffered any adverse employment action because of her
failure to comply with any such directive or the existence of any
other "policy" restricting language in the workplace, whether written
or oral. As we discuss in detail post, plaintiff's evidence does not
support the finding, as a matter of law, that defendant implemented or
enforced an English-only language policy within the meaning of section
12951. Even if plaintiff's evidence did create a triable issue of
material fact as to whether such a policy existed, we conclude the
policy was justified under the circumstances by a business necessity
within the meaning of section 12951, subdivisions (a)(2) and (b).

SUMMARY OF UNDISPUTED FACTS

Plaintiff was born in the Philippines and speaks Tagalog, a national
language of the Philippines. She worked for defendant as a quality
control analyst from October 27, 1990 until September 15, 2008.
Plaintiff worked in the quality department; some of the employees in
that department were able to speak Tagalog, Vietnamese, or Spanish.
>>From 2005 until the date plaintiff's employment was terminated,
plaintiff reported to Linda Harris, the manager of the quality
department, who in turn reported to Susan Johnson, the senior manager
of publishing and design services.
In April 2008, employee Helen Reaves told Harris that she felt
intimidated and harassed by plaintiff. In May, several employees
complained to manager Ana Blodgett about plaintiff's "loud and
disruptive" behavior at work and her calling co-employees derogatory
names in Tagalog.1 Employees complained that plaintiff ridiculed
coworkers in Tagalog in their presence, gave them derogatory
nicknames, used foul language in Tagalog, and intimidated and
ostracized employees she did not like.
Defendant received written complaints about plaintiff from several
employees. One written complaint, dated June 11, 2008, stated, inter
alia, that plaintiff used "foul language" in Tagalog and along with
co-employees, Nora Luna, Socorro Uy, and Annie Palisoc was heard using
"nicknames for people they don't like so no [non-]Tagalog speaking
person can accuse them of speaking directly about another person. Then
they use the nicknames to say der[o]gatory things in Tagalog" and "use
Tagalog to send Q messages so non-Tagalog speakers can't read what is
on their screens."2
Another complaint, dated June 17, 2008, expressed an employee's
experience of having been added to plaintiff's "unliked persons" list
because plaintiff blamed her for "having overtime cancelled one day."
The complaint stated plaintiff "has told others in her native language
of Tagalog that they are not to offer me food, this was told to me by
[another employee] who speaks and understands the language." The
employee also stated that plaintiff has nicknames for various
employees and that the employee had "begun to feel very uncomfortable
when Tagalog is spoken and much laughter ensues, for I feel that it is
at the expense of myself or someone else." The employee expressed fear
that she would suffer retaliation by plaintiff for voicing her
complaint.
Another employee complained plaintiff insulted other employees
(although it is not clear whether those insults were made in English
or Tagalog). Plaintiff's comments included statements such as an
employee's husband only married her to gain citizenship status, two
other employees' husbands are gay, and another employee is "[m]entally
sick." The employee complained, "the reason people hesitate[] to
openly come out against [plaintiff] is because of the fact that they
have seen Management not lifting a finger to correct the problem."
Defendant was provided another complaint, dated June 17, 2008, which
stated: "The environment here in Quality has changed since a group of
employees have no regard[] [for] work ethics & respect [for] other
people. It is so depressing to come to work because the environment is
so hostile, initiated by one person, [plaintiff] & involves some
others, Socorro [Uy], Annie [Palisoc], Rudy [Villanueva] & Nora
[Luna]. She is so disrespectful towards her co-employees, constant
criticizing, laughing [at] almost everyone & some people who pass[]
by. Almost all her co-employees have nicknames, Hyo as the Devil,
Heather a Pig, Cornelio the Senator, Theresa an Old Maid, Michael Di
Massa Shrek . . . and foul language she uses is insulting to hear. How
would you feel if you are called a devil & your unborn child a
spirit/devilish, there is no literal translation for what she names
the baby in English, that is the closest. What if you only have 2
pairs of shirt to wear to work, that is what her comment to Heather
is. That is what she calls . . . . No one is spared not even her
friends . . . . She does not care if people would hear her comments
even some do not understand [be]cause it i[s] said in Tagalog, but to
hear her ridicule a person is just heartbreaking. People are upset w/
her bad behavior & noise, her constant Q link messages esp. to Socorro
& Annie. Out of the blue they will just laugh, who knows if that
message is for me, [be]cause she does not talk to me, w/c I am so
thankful. It is so bothersome [be]cause I sit in between them & it
happens almost everyday & Sat. People don't want to speak up [be]cause
she might retaliate, knowing her bad behavior. . . . I just keep quiet
& never give in to her comment about me [be]cause I need my job so I
just brush it aside & don't want to be the cause of any conflict w/ a
co-employee. But she has to be STOPPED."
Another employee submitted a complaint, dated June 17, 2008, in which
she stated, inter alia: "People can not work when she is around. She
has been harassing people. The non-Filipino speaking workers cannot
understand it but they are being called names. Is that right? . . .
This is a harassment lawsuit waiting to happen." (Boldface omitted.)
The employee further stated plaintiff knows "she can get away with it.
Management seems to turn a blind eye on this matter. I wonder why? I
am surprise[d] that I am just being asked about this right now. I
don't know if something will happen with this report[.] Will it fall
on deaf ears again? Will it be shoved inside another drawer. I hope
not. She has been doing this for a long time, management knows about
this. I'm sure this is not the first complaint."
On June 26, 2008, an employee told Blodgett that she heard plaintiff
say: "I want to kill that devil (demonio)" in reference to employee
Hyo Lee whom she referred to as "Demonyo" (devil).
At some time in June 2008, Karen Humphries, one of plaintiff's
coworkers who served as a union representative but had no managerial
or supervisory authority, told plaintiff that there had been
complaints about her using inappropriate language in Tagalog and
threatening to kill a coworker. Humphries told plaintiff to speak
English so that everybody could understand her. Plaintiff responded
that Humphries's statement that she speak only English was against the
law. Humphries told plaintiff she would speak with the human resources
department. Shortly thereafter, Humphries told plaintiff that the
human resources department said plaintiff could speak Tagalog only
during breaks and lunch periods.
On July 8, 2008, Harris held a meeting with plaintiff, Humphries,
Cathy Roodzant, and Joanne Malik. During the meeting, Harris discussed
the complaints she had received about plaintiff using derogatory names
for coworkers and engaging in inappropriate behavior.
Harris also conducted individual meetings with seven employees who
were Filipino and spoke Tagalog. After meeting with those employees,
Harris determined the employees' complaints about plaintiff were
consistent and that there was evidence of a pattern of inappropriate
behavior and comments by plaintiff, which were having a serious
negative effect in the workplace.
On August 5, 2008, Harris told plaintiff to only communicate in
English when she used the Q-message system; Harris does not speak
Tagalog. Harris did not tell plaintiff that she could not speak
Tagalog at work. Plaintiff did not complain to Harris about being told
not to use Tagalog at work; plaintiff thereafter continued to use
Tagalog.
On August 12, 2008, Harris met with plaintiff, Humphries, Roodzant,
and Joe Aldana, at which time Harris reviewed plaintiff's Q-messages
and the English translations of those messages which plaintiff agreed
were accurate. At the conclusion of that meeting, Harris suspended
plaintiff, pending a final outcome of the investigation into the
employee complaints.
Sometime in August 2008, Harris told Villanueva and Uy not to use
Tagalog in the Q-message system or speak Tagalog during work hours
(except the lunch hours and break times). On August 12, Harris told
Luna, "[d]on't talk in Tagalong. It is not good because others do not
understand it. People are offended."3 After plaintiff was suspended,
employees continued to speak their native languages at work.
On August 13, 2008, plaintiff wrote an e-mail to Harris and Johnson,
apologizing and stating she had learned her lessons and would try to
be a better person. On August 19, plaintiff wrote an e-mail to
Humphries, stating she had learned a lesson, was sincerely sorry for
everything, and would try to focus on her job and do her best to be a
better person.
Harris presented the findings from her investigation to Johnson,
LaTanya Eiland, and Kristiansen. After reviewing Harris's findings,
defendant decided to terminate plaintiff's employment. On September
12, 2008, Johnson spoke with plaintiff on the telephone to advise her
that her employment was terminated. Defendant sent plaintiff a letter
confirming the termination of her employment because of "numerous
instances of serious, inappropriate workplace behavior, including
threatening a co-worker."
PROCEDURAL BACKGROUND
Plaintiff filed a complaint against defendant for (1) discrimination
based on national origin; (2) violation of section 12951; (3) wrongful
termination in violation of public policy; (4) intentional infliction
of emotional distress; and (5) negligent infliction of emotional
distress. The complaint alleged that in June 2007, Humphries told
plaintiff not to speak in Tagalog while at work. The complaint alleged
plaintiff complained about the prohibition to speak in Tagalog and
"[a]s a result, on or about August 12, 2008, Plaintiff was suspended
indefinitely."
Defendant moved for summary judgment. The trial court granted summary
judgment in favor of defendant, stating in a minute order: "All of
Plaintiff's evidentiary objections are overruled. The Court rules as
follows on Defendants' evidentiary objections: No.'s 1, 9, 12-24, 26,
27, 30, 34 and 35 are Sustained. No.'s 2-8, 10-13, 25, 28 and 31-33
are Overruled. Plaintiff agrees that the Fourth Cause of Action for
Intentional Infliction of Emotional Distress and the Fifth Cause of
Action for Negligent Infliction of emotional Distress should be
dismissed."4
Judgment was entered and plaintiff appealed.
DISCUSSION
I.
Burdens of Proof and Standard of Review
"`A trial court properly grants a motion for summary judgment only if
no issues of triable fact appear and the moving party is entitled to
judgment as a matter of law. [Citations.] The moving party bears the
burden of showing the court that the plaintiff "has not established,
and cannot reasonably expect to establish, a prima facie case . . . ."
[Citation.]' [Citation.] `[O]nce a moving defendant has "shown that
one or more elements of the cause of action, even if not separately
pleaded, cannot be established," the burden shifts to the plaintiff to
show the existence of a triable issue; to meet that burden, the
plaintiff "may not rely upon the mere allegations or denials of its
pleadings . . . but, instead, shall set forth the specific facts
showing that a triable issue of material fact exists as to that cause
of action . . . ." [Citations.]' [Citation.]" (Lyle v. Warner Brothers
Television Productions (2006) 38 Cal.4th 264, 274.)
"In reviewing a trial court's grant of summary judgment, we apply the
following rules: `"[W]e take the facts from the record that was before
the trial court when it ruled on that motion"' and `"`"review the
trial court's decision de novo, considering all the evidence set forth
in the moving and opposing papers except that to which objections were
made and sustained."'"' [Citation.] In addition, we `"liberally
construe the evidence in support of the party opposing summary
judgment and resolve doubts concerning the evidence in favor of that
party."'" (Hughes v. Pair (2009) 46 Cal.4th 1035, 1039.)
II.
VIOLATION OF SECTION 12951 CLAIM
In the complaint, plaintiff alleged defendant violated section 12951
because it "prohibit[ed] the use of the language Tagalog in the
workplace." Section 12951 provides: "(a) It is an unlawful employment
practice for an employer, as defined in subdivision (d) of Section
12926, to adopt or enforce a policy that limits or prohibits the use
of any language in any workplace, unless both of the following
conditions exist: [¶] (1) The language restriction is justified by a
business necessity. [¶] (2) The employer has notified its employees of
the circumstances and the time when the language restriction is
required to be observed and of the consequences for violating the
language restriction. [¶] (b) For the purposes of this section,
`business necessity' means an overriding legitimate business purpose
such that the language restriction is necessary to the safe and
efficient operation of the business, that the language restriction
effectively fulfills the business purpose it is supposed to serve, and
there is no alternative practice to the language restriction that
would accomplish the business purpose equally well with a lesser
discriminatory impact."
Section 12951 constituted the codification of the Fair Employment and
Housing Commission's regulation which similarly prohibits the use of
restrictive language policies in the workplace as follows: "An
employer may have a rule requiring that employees speak only in
English at certain times if the employer can show that the rule is
justified by business necessity [citation], and if the employer has
effectively notified its employees of the circumstances and time when
speaking only in English is required and of the consequences of
violating the rule." (Cal. Code Regs., tit. 2, § 7289.5, subd. (d).)
As observed by a legal commentator, proponents of the enactment of
section 12951 asserted that "workplace language policies discriminate
against protected groups, create an oppressive and intimidating
workplace, harm morale by forcing bilingual employees to monitor their
speech, and may be used as a tool to `mask intentional discrimination
based on national origin.'" (Turner, Public Entities, Officers, and
Employees: Chapter 295: Codification of California's Fair Employment
and Housing Commission Regulations Governing Workplace Language
Policies (2002) 33 McGeorge L.Rev. 433, 439.)
The Equal Employment Opportunity Commission's guidelines contain a
similar general rule against the implementation of workplace
English-only language rules, which expressly cites the same policies
expressed by the proponents of section 12951, discussed ante. Part
1606.7(a) of title 29 of the Code of Federal Regulations provides:
"When applied at all times. A rule requiring employees to speak only
English at all times in the workplace is a burdensome term and
condition of employment. The primary language of an individual is
often an essential national origin characteristic. Prohibiting
employees at all times, in the workplace, from speaking their primary
language or the language they speak most comfortably, disadvantages an
individual's employment opportunities on the basis of national origin.
It may also create an atmosphere of inferiority, isolation and
intimidation based on national origin which could result in a
discriminatory working environment. Therefore, the [Equal Employment
Opportunity] Commission will presume that such a rule violates title
VII and will closely scrutinize it." (Fn. omitted.) Part 1606.7(b) of
title 29 of the Code of Federal Regulations provides, however, that
"[a]n employer may have a rule requiring that employees speak only in
English at certain times when the employer can show that the rule is
justified by business necessity."
Here, there is no evidence defendant issued, much less, enforced an
English-only language policy within the meaning of section 12951.
There is no evidence defendant communicated a policy, either in
writing or orally, that its employees must only speak English in the
workplace. It is undisputed that defendant's quality department
included employees who spoke Vietnamese, Spanish, and Tagalog at work.
There is no evidence any employee was disciplined for speaking a
foreign language.
Plaintiff argues that the following evidence supports the reasonable
inference defendant had an English-only language policy: (1) in May
2008, Johnson referred to the situation as "the Tagalog problem"; (2)
in June 2008, Humphries met with plaintiff and told her to speak only
in English, which restriction plaintiff said was against the law; (3)
Humphries told plaintiff that the human resources department stated
plaintiff could speak Tagalog only during lunch hours and breaks; (4)
in August 2008, Harris told plaintiff, Villanueva, and Uy not to
communicate in Tagalog when using the Q-message system; (5) in August
2008, Harris told Villanueva and Uy not to speak Tagalog except during
the lunch hours and break times; and (6) on August 12, Harris told
Luna, "[d]on't talk in Tagalog. It is not good because others do not
understand it. People are offended."5
Plaintiff's evidence does not create a triable issue of material fact
as to the existence of an English-only language policy. Plaintiff's
evidence shows Johnson's comment regarding the "Tagalog problem" did
not reflect a problem with the Tagalog language. Instead, the comment
was made in response to a report that plaintiff was disruptive by
speaking loudly in Tagalog to Villanueva. Johnson's comment was made
in an e-mail responding to an e-mail Harris had sent to her, in which
Harris reported that she observed plaintiff standing over Villanueva
"talking loudly in Tagalog." Harris also reported that "99% of the
complaints are people talking Tagalog," but that Debi Kristiansen of
the human resources department "was not comfortable with [Harris]
stating Tagalog could not be spoken except on breaks and lunches."
Johnson responded to Harris, "[w]hat was [Kristiansen]'s suggestion to
address the Tagalog problem?"
As for Humphries's suggestion to plaintiff that she not use Tagalog in
the workplace, it was just that, a suggestion, because Humphries was
one of plaintiff's coworkers who had no supervisory or managerial
authority to establish any English-only language policy.
Plaintiff's evidence that Harris directed plaintiff, Villanueva, and
Uy not to communicate in Tagalog when using the Q-message system, told
Villanueva and Uy not to speak Tagalog except on breaks and during
lunch hours, and told Luna not to speak Tagalog at all in the
workplace, does not establish the existence of an English-only
language policy either. Harris's directive was limited to the
individuals who were reportedly involved in inappropriate conduct
toward fellow employees. That conduct included making derogatory
comments about co-employees orally and in the Q-message system in the
Tagalog language to avoid detection. There is no evidence any other
employees' language was restricted in any way. Thus, we conclude there
is insufficient evidence for a reasonable jury to find the existence
of an English-only language policy within the meaning of section
12951.
Even if we were to assume plaintiff showed that a triable issue of
material fact exists as to whether defendant issued such a policy, the
evidence before us shows it was supported by business necessity as a
matter of law. It was narrowly focused on plaintiff and those with
whom she conversed in Tagalog who used that language to engage in
inappropriate and offensive conduct against other employees. (See Chin
et al., Cal. Practice Guide: Employment Litigation (The Rutter Group
2010) ¶ 7:248.6, p. 7-44 (rev. # 1, 2008) [business necessity
exception of section 12951 may apply, for example, "where necessary to
enable English-speaking supervisors to monitor employee communications
to ensure efficient work and appropriate behavior"].)
We observe it is ironic that plaintiff has asserted a claim for
violation of section 12951 which, as discussed ante, proscribes rules
that might create an oppressive and intimidating workplace and harm
morale. Here, the undisputed evidence shows plaintiff has used her
native language in order to create an oppressive and intimidating
workplace. Plaintiff's claim, on this record, is antithetical to the
purposes for which section 12951 was enacted.
We find no error.
III.
National Origin Discrimination Claim
The California Fair Employment and Housing Act (FEHA) (§ 12900 et
seq.) declares it an "unlawful employment practice" to discharge a
person from employment or discriminate against the person in the
terms, conditions, or privileges of employment because of, inter alia,
the person's national origin. (§ 12960, subd. (a)). In the complaint,
plaintiff alleged defendant engaged in national origin discrimination
against her by adopting an English-only language rule and by
terminating her employment because of her national origin.
California resolves FEHA discrimination claims by applying the
burden-shifting procedure known as the McDonnell Douglas test. (See
Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 (Guz);
McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 (McDonnell
Douglas).) Under that test, the plaintiff bears the initial burden of
providing a prima facie case of discrimination by presenting evidence
showing (1) he or she was a member of a protected class, (2) he or she
was qualified for the position sought or was performing competently in
the position held, (3) he or she suffered an adverse employment
action, and (4) some other circumstance suggests a discriminatory
motive. (Guz, supra, at pp. 354-355.) If the plaintiff establishes a
prima facie case of discrimination, a rebuttable presumption of
discrimination arises and the burden shifts to the employer to rebut
the presumption by producing admissible evidence—sufficient to raise a
genuine issue of fact and to justify judgment for the employer—that
its employment action was taken for a legitimate nondiscriminatory
reason. (Id. at pp. 355-356.) Where the employer meets this burden,
the presumption of discrimination disappears, and the plaintiff must
then have the opportunity to attack the employer's proffered reasons
as pretexts for discrimination, or to offer any other evidence of a
discriminatory motive. (Id. at p. 356.)
In Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986,
1004-1005, a panel of this court addressed the application of the
McDonnell Douglas test in the context of a motion for summary
judgment: "As Guz[, supra, 24 Cal.4th at pages 356-357] explains,
several decisions suggest that when an employee opposes an employer's
motion for summary judgment of a discrimination claim, the employer
must make the initial showing of no merit and the McDonnell Douglas
burdens are reversed. [Citation.] Other decisions suggest the
plaintiff can survive the employer's summary judgment motion merely by
presenting, at the outset, evidence satisfying the prima facie
elements of McDonnell Douglas. [Citation.] Guz did not resolve the
issue because the defendant in that case proceeded to the second step
of the McDonnell Douglas test and produced admissible evidence
sufficient to raise a genuine issue of material fact that its actions
were taken for a legitimate, nondiscriminatory reason. [Citation.] [¶]
In Kelly[v. Stamps.com Inc. (2005)] 135 Cal.App.4th 1088, the court
explained the Guz standard in light of the California Supreme Court's
decision in Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826 .
. .: `A defendant employer's motion for summary judgment slightly
modifies the order of these [McDonnell Douglas] showings. If, as here,
the motion for summary judgment relies in whole or in part on a
showing of nondiscriminatory reasons for the discharge, the employer
satisfies its burden as moving party if it presents evidence of such
nondiscriminatory reasons that would permit a trier of fact to find,
more likely than not, that they were the basis for the termination.
[Citations.] To defeat the motion, the employee then must adduce or
point to evidence raising a triable issue, that would permit a trier
of fact to find by a preponderance that intentional discrimination
occurred. [Citations.] In determining whether these burdens were met,
we must view the evidence in the light most favorable to plaintiff, as
the nonmoving party, liberally construing her evidence while strictly
scrutinizing defendant's.'" In Scotch v. Art Institute of California,
we agreed with and applied the standard set forth in Kelly v.
Stamps.com Inc. (2005) 135 Cal.App.4th 1088, in affirming summary
judgment in favor of an employer as to a disability discrimination
claim alleged under the FEHA. (Scotch v. Art Institute of California,
supra, at pp. 994, 1005.)
In moving for summary judgment, defendant produced evidence showing
that plaintiff was suspended and her employment was ultimately
terminated solely because she repeatedly engaged in misconduct at
work. Beginning no later than April 2008, defendant received numerous
complaints from employees about plaintiff's "loud and disruptive"
behavior at work, which included plaintiff calling co-employees
derogatory names, using foul language, and, on one occasion,
expressing her desire to kill an employee to whom she referred to as
"Demonyo" in Tagalog, which word translated into English is "devil."
Harris conducted an investigation into the employees' complaints. She
met with employees who are of Filipino background and speak Tagalog.
She reviewed the English translation of dialogues that occurred
between plaintiff and other employees on the Q-message system. Harris
concluded that the complaints about plaintiff were consistent, and
that plaintiff's inappropriate behavior and comments were having a
seriously negative effect in the workplace. Plaintiff's wrongful
conduct was further evidenced by her sending e-mails to Harris,
Johnson, and Humphries, in which plaintiff apologized for her
behavior, stated she had learned her lesson, and asserted she would
try to be a better person. Plaintiff was informed by Johnson during a
telephone conversation and, later, in a letter that her employment was
terminated because of "numerous instances of serious, inappropriate
workplace behavior, including threatening a co-worker."
Defendant therefore satisfied its burden of presenting sufficient
evidence of nondiscriminatory reasons for plaintiff's suspension and
employment termination to enable a trier of fact to reasonably find,
more likely than not, that they were the basis for the termination of
her employment. The burden therefore shifted to plaintiff to "`adduce
or point to evidence raising a triable issue, that would permit a
trier of fact to find by a preponderance that intentional
discrimination occurred.'" (Scotch v. Art Institute of California,
supra, 173 Cal.App.4th at p. 1005.)
Plaintiff produced evidence showing that she denied calling Johnson a
"bitch," calling coworkers various names, threatening to kill a
coworker, and admitting to threatening to kill a coworker. Plaintiff
did not, however, produce any evidence refuting that defendant
received complaints about plaintiff's misconduct, including that an
employee heard plaintiff express the desire to kill a particular
coworker.
There is no evidence plaintiff, or any other employee, was ever
disciplined for simply communicating in Tagalog or any other language.
There is no evidence which supports a finding that plaintiff's
suspension and employment termination were motivated by anything other
than the inappropriate substance of her communications along with her
disruptive conduct.
As plaintiff failed to carry her burden showing that a triable issue
of material fact existed as to whether national origin discrimination
had occurred, summary judgment was properly granted.
IV.
WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY
Plaintiff's wrongful termination in violation of public policy claim
was based on her national origin discrimination claim and her
violation of section 12951 claim. For the reasons discussed ante,
there are no triable issues of material fact as to her discrimination
claim or section 12951 claim. Consequently, her claim for wrongful
termination in violation of public policy fails as a matter of law.
(Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 229 [because
the plaintiff's FEHA claim failed, his wrongful termination claim
failed].)
DISPOSITION
The judgment is affirmed. Respondents shall recover costs on appeal.
WE CONCUR:
O'LEARY, ACTING P. J.
IKOLA, J.

http://www.leagle.com/xmlResult.aspx?xmldoc=In%20CACO%2020110324070.xml&docbase=CSLWAR3-2007-CURR

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