Polk v. Lowe's HIW CA6 ( 2014 )

Filed 10/30/14 Polk v. Lowe’s HIW 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
GLENN POLK, H039950
(Santa Clara County
Plaintiff and Appellant, Super. Ct. No. 1-11-CV202042)
v.
LOWE’S HIW, INC.,
Defendant and Respondent.
Plaintiff Glenn Polk was employed by defendant Lowe’s HIW, Inc. (Lowe’s),
from July 2008 until he resigned in January 2011. Following his resignation, Polk filed a
lawsuit against Lowe’s alleging causes of action for constructive discharge, hostile work
environment, failure to prevent harassment, and intentional infliction of emotional
distress. Polk alleged that a department manager at Lowe’s, Adam Bal, sent him a
racially offensive text message, causing him psychological trauma. Lowe’s moved for
summary judgment on all of Polk’s causes of action, which the trial court granted. Polk
appealed the trial court’s judgment in favor of Lowe’s, arguing that the court erred in
granting summary judgment on his hostile work environment claim.
For the reasons set forth below, we conclude that Polk failed to demonstrate the
existence of a triable issue of material fact regarding his cause of action for a hostile work
environment. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The Undisputed Facts1
Polk worked as an hourly at-will employee at Lowe’s between July 2008 and
January 2011. Polk was initially employed at a Lowe’s store in Sunnyvale but was later
transferred to a store in east San Jose. Bal was employed as the freight department
manager for the Lowe’s store in east San Jose from October 2009 to November 2010.
Americo Peri was the store manager for the east San Jose store, and Aloy Nnorukam was
the human resources manager. Bal did not have any overt “race problems” with
Nnorukam or Peri. However, Polk said he felt a “bad vibe” from Peri and while he had a
“[g]ood working relationship” with Peri, he felt that “[Peri] just didn’t care for [him].”
In 2010, Polk was transferred from the store’s freight department to the tools
department. Polk told Nnorukam that he thought he was being transferred due to his
ethnicity, which Nnorukam denied. Nnorukam told Polk he was being transferred
because of his tardiness.
Polk noticed that Bal and Peri appeared to be friends and would sometimes joke
with each other using crude language and profanity. Polk felt Bal and Peri avoided
talking to him.
On October 19, 2010, at approximately 3:44 a.m., Polk received a text message
from Bal’s personal cell phone which read: “This nigga was never on time when he was
on freight. Now he’s in tools. He’s in early every day.” Bal had never made racially
offensive comments to Polk before this incident. Bal apologized to Polk the same day
and explained the message was not intended for him. Polk reported the text message to
management and submitted a statement. Bal was sent home and was suspended pending
1
Some of the evidence cited by Polk in his opening brief was objected to by
Lowe’s and excluded by the trial court below. Polk has not challenged the trial court’s
evidentiary rulings. We will therefore state the facts of the case without reference to the
excluded material.
2
the outcome of the investigation. Nnorukam spoke with Polk and Bal and concluded that
Bal had accidentally sent the message to Polk. He determined the message was
inappropriate and in violation of company polices, and concluded that Bal should be
terminated. The incident was handled at the store level and was not reported to Lowe’s
corporate offices. Bal was terminated by Lowe’s on November 4, 2010.2
After the incident, Polk requested time off and a leave of absence. Polk also
asserted he felt ill after receiving the text and experienced sleepless nights, anger,
anxiety, and fear. Polk sought medical attention for his symptoms. During his absence
from work, Polk was informed that Bal had been suspended and was later told that Bal
was terminated. Accordingly, Polk and Bal never worked together at the store after the
text messaging incident. Polk voluntarily resigned in January 2011.
Procedural History
On May 31, 2011, Polk filed a complaint against Lowe’s and Bal, alleging five
causes of action: (1) breach of contract and constructive discharge, (2) hostile work
environment and harassment, (3) failure to prevent a hostile work environment, (4)
intentional infliction of emotional distress, and (5) constructive discharge in violation of
public policy.3 The causes of action for hostile work environment and intentional
2
Polk argued below that Bal was allowed to resign and was not terminated.
However, the only evidence proffered by Polk to dispute the fact that Bal was terminated
was a letter of resignation that the trial court deemed inadmissible. Accordingly, we
cannot rely on this document as evidence of Bal’s resignation. Furthermore, during his
deposition, Nnorukam specifically stated that Bal was terminated from his position at
Lowe’s.
3
Polk’s complaint alleged he had received a right-to-sue letter from the California
Department of Fair Employment and Housing (DFEH) on March 27, 2011. Lowe’s does
not dispute that Polk has exhausted his administrative remedies by filing a complaint with
the DFEH for violations of the Fair Employment and Housing Act (FEHA) (Gov. Code, §
12900 et seq.). (See Romano v. Rockwell Internat., Inc. (1996) 14 Cal. 4th 479, 492; Gov.
Code, §§ 12960, 12965.)
3
infliction of emotional distress were alleged against Lowe’s and Bal. The other causes of
action were alleged only as to Lowe’s.
Polk’s complaint alleged that Lowe’s and Bal subjected him to harassment based
on his race, which created a hostile and abusive work environment. Polk asserted he was
subjected to unwarranted racial slurs at work because he is African American. He
claimed he was significantly affected by the text message referring to him as a “nigga”
and considered the message an abusive personal attack that caused him to experience
high blood pressure, anxiety, fear, and depression. Polk’s complaint did not allege any
other specific incidents of harassment.
Lowe’s moved for summary judgment on May 18, 2012. In September 2012, Polk
filed an opposition to the motion for summary judgment. Lowe’s objected to some of
Polk’s submitted evidence and filed a reply brief.
On December 7, 2012, the trial court granted Lowe’s motion for summary
judgment, sustaining some of Lowe’s evidentiary objections. The trial court entered a
final judgment in favor of Lowe’s on May 31, 2013, and Polk appealed.
STANDARD OF REVIEW
We review the trial court’s grant of summary judgment under a de novo standard
of review. (Monticello Ins. Co. v. Essex Ins. Co. (2008) 162 Cal. App. 4th 1376, 1385.)
Summary judgment is granted if all the moving papers show there is no triable issue of
any material facts, and that the moving party is entitled to judgment as a matter of law.
(Code Civ. Proc., § 437c, subd. (c).) Defendants are entitled to summary judgment if a
necessary element of plaintiff’s complaint cannot be established, or if there is a complete
defense to the plaintiff’s cause of action. (Id., subd. (o)(2).) In reviewing a grant of
summary judgment in favor of the defendant, as in this situation, we must review the
entire record de novo and determine whether the defendant “ ‘conclusively negated a
necessary element of the plaintiff’s case or demonstrated that under no hypothesis is there
4
a material issue of fact that requires the process of trial.’ ” (WYDA Associates v. Merner
(1996) 42 Cal. App. 4th 1702, 1709.)
DISCUSSION
On appeal, Polk argues that the trial court erred in granting summary judgment in
favor of Lowe’s regarding his cause of action for a hostile work environment based on
race.4 First, Polk claims the trial court erred in finding that the text message sent by Bal
was, by itself, insufficient to sustain a cause of action for hostile work environment.
Additionally, he insists that the trial court erred in failing to consider additional evidence
of racial discrimination at Lowe’s aside from the text message.
Legal Principles Governing Hostile Work Environment Claims
FEHA prohibits employers from discriminating or harassing employees on the
basis of race, national origin, or ancestry. (Gov. Code, § 12940, subd. (g); Aguilar v. Avis
Rent a Car System, Inc. (1999) 21 Cal. 4th 121, 129.) The federal counterpart of the
FEHA, title VII of the Civil Rights Act of 1964 (Title VII) (42 U.S.C. § 2000e et seq.),
also states that harassment in the workplace may give rise to a cause of action for
employment discrimination. Title VII cases can be considered when interpreting the
scope of the FEHA. (Etter v. Veriflo Corp. (1998) 67 Cal. App. 4th 457, 464 (Etter).)
“Harassment includes ‘ “epithets, derogatory comments or slurs . . . .” ’ ” (Dee v.
Vintage Petroleum, Inc. (2003) 106 Cal. App. 4th 30, 35 (Dee).) Not all workplace
harassment will give rise to a violation of the FEHA or Title VII. The behavior must
result in a hostile work environment that is “ ‘ “ ‘sufficiently severe or pervasive to alter
the conditions of the victim’s employment.’ ” ’ ” (Etter, supra, 67 Cal.App.4th at p. 465,
4
In his opening brief, Polk states that one of the issues raised on appeal is whether
he was constructively discharged. However, Polk never develops this argument in his
brief. “ ‘[P]arties are required to include argument and citation to authority in their
briefs, and the absence of these necessary elements allows this court to treat appellant’s . .
. issue as waived.’ ” (In re Daniel M. (2003) 110 Cal. App. 4th 703, 708.) Therefore, we
find Polk has waived this argument on appeal.
5
citing Beyda v. City of Los Angeles (1998) 65 Cal. App. 4th 511, 517.) Errant remarks or
sporadic comments may not be sufficient to create a hostile work environment. (Horn v.
Cushman & Wakefield Western, Inc. (1999) 72 Cal. App. 4th 798, 809-810.) However, “
‘there is neither a threshold “magic number” of harassing incidents that gives rise . . . to
liability . . . nor a number of incidents below which a plaintiff fails as a matter of law to
state a claim.’ ” (Dee, supra, at p. 36.)
“[H]arassment must satisfy an objective and a subjective standard.” (Hope v.
California Youth Authority (2005) 134 Cal. App. 4th 577, 588.) “Conduct that is not
severe or pervasive enough to create an objectively hostile or abusive work environment-
-an environment that a reasonable person would find hostile or abusive--is beyond Title
VII’s purview. Likewise, if the victim does not subjectively perceive the environment to
be abusive, the conduct has not actually altered the conditions of the victim’s
employment . . . .” (Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17, 21-22.)
Determining whether an environment is hostile requires looking at the totality of the
circumstances, including “the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee’s work performance.” (Id. at p. 23.)
Put another way, “[t]he plaintiff must prove that the defendant’s conduct would
have interfered with a reasonable employee’s work performance and would have
seriously affected the psychological well-being of a reasonable employee and that [he]
was actually offended.” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal. App. 3d
590, 609-610, fn. omitted.) “The effect on the employee’s psychological well-being is, of
course, relevant to determining whether the plaintiff found the environment abusive. But
while psychological harm, like any other relevant factor, may be taken into account, no
single factor is required.” (Harris v. Forklift Systems, Inc. supra, 510 U.S. at p. 23.)
Whether the offensive statement was directed at the plaintiff, or was directed at others but
6
heard by the plaintiff, is also relevant. (Lyle v. Warner Brothers Television Productions
(2006) 38 Cal. 4th 264, 285 (Lyle).)
“An employer is strictly liable for harassment committed by its agents or
supervisors, but is liable for harassment committed by its other employees only if it fails
to take immediate and appropriate corrective action when reasonably made aware of the
situation.” (Jones v. Department of Corrections & Rehabilitation (2007) 152
Cal. App. 4th 1367, 1377.)
Summary judgment can be granted on a hostile work environment cause of action
if a reasonable trier of fact could not find, based on the plaintiff’s factual showing, that
the harassing conduct was sufficiently severe or pervasive to create a hostile work
environment. (Lyle, supra, 38 Cal.4th at p. 291.)
Polk’s Hostile Work Environment Claim
The undisputed facts regarding Polk’s text message incident are as follows: Polk
never had any overt “race problems” with any other employees at Lowe’s. Prior to his
receipt of the text message, Polk did not have plainly obvious problems with Bal; Bal had
never used a racial slur against him before. Bal apologized to Polk after he sent the
offensive text message. Polk reported the incident to Nnorukam, and Bal was suspended
and later terminated. Polk later said he felt ill and fearful after receiving the text
message, leading to his voluntary resignation in January 2011.
Polk acknowledges that “ ‘the required showing of severity or seriousness of the
harassing conduct varies inversely with the pervasiveness or frequency of the conduct.’
[Citations.] If a single incident can ever suffice to support a hostile work environment
claim, the incident must be extremely severe.” (Brooks v. City of San Mateo (9th Cir.
2000) 229 F.3d 917, 926 (Brooks).) Polk argues that the racial remark made by Bal, who
7
was his supervisor, coupled with the physical and psychological damage he suffered, was
severe enough to support a hostile work environment claim on its own.5
Polk distinguishes between a single offensive act by a coemployee and a single
offensive act by a supervisor like Bal. Polk maintains that a single racial epithet made by
a supervisor has “such a powerful and violent connotation that just one instance of that
remark is ‘sufficiently severe’ to create a hostile environment,” citing to Dee, supra, 106
Cal. App. 4th 30. Dee, however, does not stand for the proposition that a single racial slur
is sufficient to create a triable issue of fact as to the existence of a hostile work
environment.
In Dee, the appellate court concluded that “[i]n many cases, a single offensive act
by a coemployee is not enough to establish employer liability for a hostile work
environment. But where that act is committed by a supervisor, the result may be
different.” (Dee, supra, 106 Cal.App.4th at p. 36.) Dee noted that in Brooks, supra, 229
F.3d at page 927, footnote 9, the federal appellate court reasoned that “ ‘a sexual assault
by a supervisor, even on a single occasion, may well be sufficiently severe so as to alter
the conditions of employment and give rise to a hostile work environment claim.’ ”
(Dee, supra, at p. 36.)
5
Lowe’s reply brief argues that Polk is essentially asserting a new theory of
liability on appeal. We disagree; the harm to an employee’s psychological welfare is a
factor to be considered and is relevant to the analysis of whether the conduct alleged
constitutes a hostile work environment claim due to race. (Harris v. Forklift Systems,
Inc., supra, 510 U.S. at p. 23.) Polk is not asserting that Lowe’s is somehow liable under
a different theory of liability. Additionally, Polk’s complaint specifically set forth the
allegation that the text message from Bal caused Polk to become anxious, fearful, and
depressed, and adversely impacted his blood pressure.
Lowe’s also argues that there is no direct evidence that Bal was Polk’s supervisor.
However, this fact appears to be undisputed below. Polk asserted in a deposition that Bal
was his direct supervisor at Lowe’s, and alleged Bal was his supervisor in his complaint.
Lowe’s did not present evidence in contravention to the trial court.
8
Dee further stated that in other jurisdictions, “a single racial slur by a supervisor
may also create a hostile work environment” (Dee, supra, 106 Cal.App.4th at p. 36),
citing to Rodgers v. Western-Southern Life Ins. Co. (7th Cir. 1993) 12 F.3d 668, 675
(Rodgers). In Rodgers, the Seventh Circuit concluded that the supervisor’s use of an
unambiguous racial epithet in the presence of his subordinates “impacts the work
environment far more severely than use by co-equals.” (Rodgers, supra, at p. 675.) The
Rodgers court reasoned that “[p]erhaps no single act can more quickly ‘alter the
conditions of employment and create an abusive working environment’ ” than the use of
a racial slur by a supervisor in the presence of his subordinates. (Ibid.) However,
Rodgers differs from Dee and the present case in several respects. Procedurally, Rodgers
did not arise from the grant of summary judgment; the appeal arose following a bench
trial where the district court found the existence of a hostile work environment. (Id. at p.
670.) Factually, the supervisor in Rodgers engaged in several isolated incidents that
contributed to the finding by the trial court that there was a hostile work environment.6
(Id. at pp. 675-676.) More accurately, Rodgers concluded that “[i]n examining the
‘totality of circumstances’ giving rise to [the plaintiff’s] action[s], the district court
properly considered the cumulative weight of [the supervisor’s] several ‘isolated’ racial
comments.” (Id. at p. 675.)
Additionally, contrary to Polk’s assertion, Dee itself did not hold that a
supervisor’s single isolated racial slur is sufficient to create a triable issue regarding the
existence of a hostile work environment. The Dee court concluded that a supervisor’s
single racial slur when coupled with other evidence, such as where the supervisor had
6
The supervisor in Rodgers used the word “ ‘nigger’ ” twice in the presence of the
plaintiff, made a statement that “ ‘[y]ou black guys are too fucking dumb to be insurance
agents’ ” (Rodgers, supra, 12 F.3d at p. 675), told the plaintiff that he was advised not to
hire more African American agents, remarked to the plaintiff that he “ ‘must think [he’s]
back in Arkansas chasing jack rabbits,’ ” and used the nickname “ ‘Rabbit’ ” for the
plaintiff. (Id. at p. 676.)
9
also instructed the employee to lie, used foul language against her, and berated her in the
workplace, created a triable issue. (Dee, supra, 106 Cal.App.4th at pp. 36-37.)
Polk claims that the Dee court sought additional evidence of racial harassment
because it sought to establish the supervisor’s remark as “pervasive” since the racial slur
was not “unambiguous.” In this respect, Polk has misread the analysis set forth in Dee.
The Dee court concluded that the supervisor’s remark to the employee was “an ethnic
slur, both abusive and hostile.” (Dee, supra, 106 Cal.App.4th at p. 36.) The court
reasoned the additional evidence that the supervisor had abused and belittled Dee would
allow a reasonable trier of fact to conclude that the racial slur was not an isolated event.
(Id. at pp. 36-37.) Unlike Dee, Polk has not presented any other incidents where Bal
abused or used foul language against him.
Furthermore, many courts have affirmed grants of summary judgment when the
incidents of racial harassment are isolated, holding that single incidents cannot be found
sufficiently severe enough to sustain a cause of action for hostile work environment. In
Vasquez v. County of Los Angeles (9th Cir. 2003) 349 F.3d 634 (Vasquez), the federal
appellate court affirmed the grant of summary judgment in favor of the employer with
respect to the plaintiff’s claim of hostile work environment under Title VII. In Vasquez,
the plaintiff’s supervisor made two racially derogatory statements to the plaintiff: that
the plaintiff had “ ‘a typical Hispanic macho attitude’ ” and that “ ‘Hispanics do good in
the field.’ ” (Vasquez, supra, at p. 643.) The federal appellate court concluded that the
two racially related epithets, though offensive, did not create a triable issue of fact as to
severity or pervasiveness. (Id. at p. 644.)
Similarly, federal district courts have held that “isolated instances of offensive
conduct are insufficient to create a triable issue of fact on a hostile work environment
claim.” (Henry v. Regents of the Univ. (N.D.Cal., Feb. 24, 2014) 2014 U.S. Dist. Lexis
23888, p. *48.) For example, a district court granted summary judgment in favor of the
employer even when the plaintiff alleged that his supervisor called him a “ ‘nigger’ ” on
10
one occasion, criticized him constantly, and called him too slow and fat. (Alvarado v.
Fedex Corp. (N.D.Cal., Mar. 10, 2006) 2006 U.S. Dist. Lexis 9973, pp. *47-*50.)
Another district court found that a supervisor’s use of the derogatory terms “bitch” and
“nigger” on two separate occasions, possibly directed to the plaintiff, and the supervisor’s
occasional derogatory comments in front of the plaintiff’s coemployees that the plaintiff
was never going to be promoted and was not going anywhere, was insufficient for a
reasonable jury to find, subjectively and objectively, the existence of a hostile work
environment. (Hercules v. Dept. of Homeland Sec. (N.D.Cal., Apr. 29, 2008, No. C-07-
0270 SBA) 2008 U.S. Dist. Lexis 35037, pp. *62-*65.)
In an analogous case concerning a hostile work environment due to gender
discrimination, the federal appellate court in Kortan v. California Youth Authority (9th
Cir. 2000) 217 F.3d 1104 (Kortan) held that isolated statements made by a supervisor
may not give rise to a triable issue of material fact. In Kortan, a female employee filed
suit against her employer after a supervisor made several offensive statements against
women, calling a former female employee a “ ‘castrating bitch,’ ” “ ‘madonna,’ ” and “
‘regina.’ ” (Id. at p. 1110.) Kortan argued that whether a reasonable woman would have
found these statements abusive was an issue of fact for the jury to decide. However, the
federal appellate court affirmed summary judgment for the employer after considering
the circumstances surrounding the statements, including the fact that the offensive
conduct was concentrated on one occasion. The federal court therefore held that there
was no triable issue as to whether the conduct was severe or abusive enough to create a
hostile work environment.7 (Kortan, supra, at p. 1111.)
7
Similarly, in sexual harassment hostile work environment claims, a “single
incident must be severe in the extreme and generally must include either physical
violence or the threat thereof” in order to create a triable issue of material fact. (Herberg
v. California Institute of the Arts (2002) 101 Cal. App. 4th 142, 151.) Indeed, courts have
found that “even unwelcome sexual touching is insufficient to constitute severe pervasive
(continued)
11
Despite the lack of cases to support his proposition, Polk insists that the federal
appellate court in Brooks held that a single act by a supervisor against an employee may
be “sufficiently severe so as to alter the conditions of employment and give rise to a
hostile work environment claim.” (Brooks, supra, 229 F.3d at p. 927, fn. 9.) This
footnote in Brooks, however, is merely dicta and was not its holding; Brooks concerned
the alleged sexual harassment committed by a coemployee against another employee, not
a supervisor against an employee. “The holding of a decision is limited by the facts of
the case being decided, notwithstanding the use of overly broad language by the court in
stating the issue before it or its holding or in its reasoning.” (McGee v. Superior Court
(1985) 176 Cal. App. 3d 221, 226.) Aside from the dicta in Brooks, Polk has not cited to
and we have not found any cases concluding that a single racial epithet from a supervisor
can be severe enough to constitute a hostile work environment.
Here, Bal’s reference to Polk as a “nigga” is indisputably an ethnic slur that is
abusive and hostile. “It is beyond question that the use of the word ‘nigger’ is highly
offensive and demeaning, evoking a history of racial violence, brutality, and
subordination.” (McGinest v. GTE Service Corp. (9th Cir. 2004) 360 F.3d 1103, 1116.)
However, based on the undisputed facts, the use of the racial slur was an isolated event.8
It is also undisputed that Bal apologized after Polk read the text, cried while apologizing,
and never worked with Polk again.
harassment when the incidents are isolated and there is no violence or threat of violence.”
(Id. at p. 153.)
8
In his opposition to the motion for summary judgment, Polk alleged that there
were other incidents of racial discrimination and evidence that other employees had used
racially offensive epithets in the break room at Lowe’s. However, these facts were not
pleaded in the complaint. Furthermore, the evidentiary bases for these assertions were
deemed inadmissible by the trial court. Polk did not appeal these evidentiary rulings on
appeal and we are therefore obligated to exclude the items on our review.
12
In his deposition, Polk stated he felt ill after the incident and suffered severe
psychological harm. However, this evidence goes toward the subjective, not the
objective, component of a claim of harassment. Based on the totality of the
circumstances, we find that there is no reasonable trier of fact that could conclude the
isolated text message was severe enough to create an objectively abusive or hostile work
environment for a reasonable employee of Polk’s ethnicity. (Lyle, supra, 38 Cal.4th at p.
291.) “Simply causing an employee offense based on an isolated comment is not
sufficient to create actionable harassment . . . .” (McGinest v. GTE Service Corp., supra,
360 F.3d at p. 1113.)
Polk maintains that it can be inferred that Bal intended to send the racially
offensive text message to Peri, the store manager, which would have drastically altered
his employment at Lowe’s. However, this assertion is based merely on Polk’s
observation that Bal and Peri were friendly toward each other, and his belief that
someone in Peri’s role would be concerned with the contents of the text message. Such
speculation cannot create a triable issue. (Joseph E. Di Loreto, Inc. v. O’Neill (1991) 1
Cal. App. 4th 149, 161 [“When opposition to a motion for summary judgment is based on
inferences, those inferences must be reasonably deducible from the evidence, and not
such as are derived from speculation, conjecture, imagination, or guesswork.”].)
Other Evidence of Harassment
In the alternative, Polk contends that there is ample evidence in the record of other
acts of harassment (changes to his schedule, assignment to menial tasks, and Bal and
Peri’s demeanor toward him) that support a hostile work environment claim. He argues
the trial court erred in failing to consider these additional incidents. Indeed, in its order
granting summary judgment the trial court noted that these assertions were outside the
scope of the pleadings.
It appears the trial court correctly determined that Polk’s additional factual
assertions were outside the scope of the pleadings, because he did not allege these
13
additional instances of supposed racial harassment in his complaint. “[A] ‘defendant
moving for summary judgment need address only the issues raised by the complaint; the
plaintiff cannot bring up new, unpleaded issues in his or her opposing papers.’ [Citation.]
‘To create a triable issue of material fact, the opposition evidence must be directed to
issues raised by the pleadings. [Citation.] If the opposing party’s evidence would show
some factual assertion, legal theory, defense or claim not yet pleaded, that party should
seek leave to amend the pleadings before the hearing on the summary judgment motion.’
” (Laabs v. City of Victorville (2008) 163 Cal. App. 4th 1242, 1253.)
Polk’s complaint only alleged harassment on the basis that he was subjected to
unwanted racial slurs at work, specifically the text message sent by Bal. He did not
allege Peri treated him adversely or Bal harassed him in any other way. When moving
for summary judgment Lowe’s was only required to address the allegations contained in
the complaint, which it did by demonstrating that a single incident of harassment cannot
be severe enough to sustain a cause of action for a hostile work environment.
Furthermore, even if we were to consider Polk’s additional allegations, we would
still conclude that his cause of action for a hostile work environment fails. Many of his
supplementary factual assertions rely on evidence that we cannot consider because they
were excluded by the trial court below (his alleged assignment to petty jobs and menial
tasks), and Polk does not appeal these evidentiary rulings.9 (California Bank & Trust v.
Lawlor (2013) 222 Cal. App. 4th 625, 637.)
Additionally, some of his arguments are unsupported. There is no evidence that
any scheduling change made by Lowe’s was the result of racial harassment. “
‘[C]ommonly necessary personnel management actions such as hiring and firing, job or
project assignments, office or work station assignments . . . and the like, do not come
9
These assertions were solely supported by a paragraph in his declaration that the
trial court deemed inadmissible.
14
within the meaning of harassment.’ ” (Reno v. Baird (1998) 18 Cal. 4th 640, 646-647.)
And, Polk’s allegation that Bal and Peri were not friendly toward him is also not
actionable. “[A]n employer cannot force employees to socialize with one another . . . .”
(Brooks, supra, 229 F.3d at p. 929.)
Accordingly, after considering the totality of the circumstances, we conclude a
reasonable jury would not be able to find, based on the undisputed facts, that the
harassment alleged by Polk was sufficiently severe or pervasive to constitute a hostile
work environment due to race.
DISPOSITION
The judgment is affirmed. Lowe’s is entitled to its costs on appeal.
15
Premo, J.
WE CONCUR:
Rushing, P.J.
Elia, J.