Pinero v. Specialty Restaurants Corp., B177111.

• Decision Date: 22 June 2005
• Docket Number: No. B177111.,B177111.
• Citation: 130 Cal.App.4th 635,30 Cal.Rptr.3d 348
• Court: California Court of Appeals Court of Appeals
• Parties: Alberto PINERO, Plaintiff and Appellant, v. SPECIALTY RESTAURANTS CORPORATION, Defendant and Respondent.

30 Cal.Rptr.3d 348

130 Cal.App.4th 635

Alberto PINERO, Plaintiff and Appellant, v. SPECIALTY RESTAURANTS CORPORATION, Defendant and Respondent.

No. B177111.

Court of Appeal, Second District, Division 8.

June 22, 2005.

Law Offices of Robert S. Scuderi and Robert S. Scuderi, Sherman Oaks, for Appellant.

Snell & Wilmer, Richard A. Derevan and Marc L. Turman, Irvine, for Respondent.

BOLAND, J.

Appellant Alberto Pinero sued his former employer, respondent Specialty Restaurants Corporation (SRC), for retaliation. Pinero claimed that SRC forced him to resign after learning Pinero had filed an age discrimination action against another former employer, who also was a city council member in a city where SRC conducted business. Following the presentation of Pinero's case-in-chief at trial, SRC moved for nonsuit when Pinero rested. The trial court found Pinero did not establish he was subjected to any form of adverse employment action, and granted the motion. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In October 1998, SRC hired Pinero as General Manager of Luminarias, a restaurant in Monterey Park. When he was hired, Pinero was a plaintiff in a pending age discrimination action against Alfred Balderrama, his former employer and a member of the Monterey Park City Council. Pinero did not inform SRC about his lawsuit against Balderrama.

In January 1999, Pinero was transferred and promoted to General Manager of the Castaways Restaurant in Burbank, SRC's "flagship" restaurant in Southern California, and a larger facility than Luminarias. Pinero's immediate supervisor at both Luminarias and Castaways was SRC's regional manager Hoss Babaie. Babaie's supervisor was John Tallichet, SRC's vice-president of operations.

In late April or early May 1999, John Tallichet's father, SRC's president and chief executive officer, David Tallichet, learned about Pinero's lawsuit against Balderrama. David Tallichet met or spoke with Pinero several times to persuade Pinero to abandon or settle what he believed was a frivolous lawsuit against Balderrama. Pinero repeatedly told Tallichet the lawsuit was a private matter and was of no concern to SRC. On May 18, 1999, a meeting was conducted at David Tallichet's office and was attended by Pinero, Pinero's attorney, David and John Tallichet, and two SRC attorneys. At the meeting, an SRC attorney told Pinero his lawsuit against Balderrama was frivolous and should be dismissed. The attorney also told Pinero he had concealed information from SRC when he was hired and would be fired for having done so. The meeting ended after Pinero repeated the lawsuit had nothing to do with SRC.

After the meeting, Pinero claims Babaie began to repeatedly criticize him about one work-related matter or another. Notwithstanding the criticism, Pinero was not fired, demoted or transferred, did not lose any benefits, bonuses or commissions, did not suffer any wage reduction, and did not experience any change in job duties or responsibilities between the time of his transfer to Castaways and his departure from SRC's employ. By mid-August 1999, Pinero concluded he could no longer handle the situation and resigned.

Pinero filed this employment action against SRC. He claims SRC retaliated against him in violation of the Fair Employment and Housing Act, Government Code section 12940, subdivision (h) (FEHA), for initiating the lawfully protected activity of filing an age discrimination action against Balderrama.

A jury trial was conducted. After Pinero presented his case-in-chief and rested, SRC moved for nonsuit. (Code Civ. Proc., § 581c.) SRC argued Pinero failed to prove he had suffered any substantial or material alteration in the terms and conditions of his employment in retaliation for engaging in a protected activity. The motion was granted and judgment was entered in favor of SRC. This appeal followed.¹

DISCUSSION

Pinero contends the trial court's nonsuit was erroneous because he presented sufficient evidence to support a jury verdict in his favor on his statutory claim of retaliation in violation of FEHA. For reasons discussed below, we conclude Pinero is mistaken.

1. The standard of review.

We independently review the ruling on a motion for nonsuit, guided by the same rules that govern the trial court. (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 839, 206 Cal.Rptr. 136, 686 P.2d 656; Saunders v. Taylor (1996) 42 Cal.App.4th 1538, 1541-1542, 50 Cal.Rptr.2d 395.) "We will not sustain the judgment . . . unless interpreting the evidence most favorably to plaintiff's case and most strongly against the defendant and resolving all presumptions, inferences and doubts in favor of the plaintiff a judgment for the defendant is required as a matter of law. . . ." (Ewing v. Northridge Hospital Medical Center (2004) 120 Cal.App.4th 1289, 1296, 16 Cal.Rptr.3d 591, additional citations omitted.) However, "[a] mere `scintilla of evidence,' does not create a conflict for the jury's resolution; `there must be substantial evidence to create the necessary conflict.' (7 Witkin, Cal. Procedure (3d ed. 1985) Trial, § 410, p. 413, italics [omitted].)" (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291, 253 Cal.Rptr. 97, 763 P.2d 948.)

2. Pinero failed to present evidence he suffered an "adverse employment action."

To establish a prima facie case of retaliation in violation of FEHA, a plaintiff must show he engaged in a protected activity, his employer subjected him to an adverse employment action, and a causal link exists between his protected activity and the employer's action. (Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th 803, 814-815, 89 Cal.Rptr.2d 505.) Without question, Pinero's filing of an age discrimination action against Balderrama under FEHA qualifies as a "protected activity."

The question before us is whether the evidence supports Pinero's claim that he suffered one or more "adverse employment actions" at the hands of SRC. FEHA itself does not define "adverse employment action," and only three published cases have explored the meaning of the phrase. (McRae v. Department of Corrections (2005) 127 Cal.App.4th 779, 787-790, 25 Cal.Rptr.3d 911 (McRae); Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 116 Cal.Rptr.2d 602 (Akers); and Thomas v. Department of Corrections (2000) 77 Cal.App.4th 507, 91 Cal.Rptr.2d 770 (Thomas).) However, a number of federal courts have considered the issue when construing analogous federal antidiscrimination statutes, and have divided into three groups.²

The first group has taken the most restrictive view, holding that an adverse employment action is limited to ultimate employment decisions, such as firing, demotion or reduction in pay. (See Mattern v. Eastman Kodak Co. (5th Cir.1997) 104 F.3d 702, 707-708; Ledergerber v. Stangler (8th Cir.1997) 122 F.3d 1142, 1144.)

The second group takes a broader view of "adverse employment action," and includes a wide range of intermediate employment decisions, so long as the decision or action materially and detrimentally affected the terms and conditions of a plaintiff's employment. (See e.g., Von Gunten v. Maryland (4th Cir.2001) 243 F.3d 858, 866, fn. 4; Brown v. Brody (D.C.Cir.1999) 199 F.3d 446, 457; Hollins v. Atlantic Co., Inc. (6th Cir.1999) 188 F.3d 652, 662; Torres v. Pisano (2d Cir.1997) 116 F.3d 625, 640.)

The third group, which includes Ninth Circuit decisions, has adopted the "deterrence test" promulgated by the Equal Opportunity Employment Commission (EEOC). (See e.g., Ray v. Henderson (9th Cir.2000) 217 F.3d 1234, 1243 (Ray).)³ Under the deterrence test, an adverse employment action is "`any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity.'" (Ray, at pp. 1242-1243, citing EEOC Compliance Manual Section 8 (1998) Retaliation, ¶ 8008.) Proponents of this test argue that clever supervisors and employers may just as effectively succeed in "chilling" an employee's protected activity by engaging in actions which may be deemed retaliatory, even though no one action alters the express terms or parameters of an employee's job description. (See Knox v. State of Ind. (7th Cir.1996) 93 F.3d 1327, 1334 ["The law deliberately does not take a `laundry list' approach to retaliation, because unfortunately its forms are as varied as the human imagination will permit"].)

With respect to the view that "adverse employment actions" are limited to ultimate employment decisions, every California court which has considered the issue has rejected such a restrictive view, and we agree. (See Akers, supra, 95 Cal. App.4th at p. 1455, 116 Cal.Rptr.2d 602; Thomas, supra, 77 Cal.App.4th at p. 511, 91 Cal.Rptr.2d 770; cf., McRae, supra, 127 Cal.App.4th at p. 790, 25 Cal.Rptr.3d 911.) In addition, with the exception of the now depublished Yanowitz, no California court has adopted the EEOC's "deterrence test." Only the McRae court considered applying the EEOC rule, and it specifically rejected such a test. It concluded its application (1) could be used to "support a finding of adverse employment action in nearly any employment action or decision," and (2) improperly collapsed two independent elements of a prima facie retaliation claim, making it inconsistent with the standard McDonnell Douglas test. (McRae, supra, 127 Cal.App.4th at p. 789, 25 Cal.Rptr.3d 911; See McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668.)

Instead, courts considering the question of what constitutes an adverse employment action for purposes of a statutory retaliation claim have uniformly held an intermediate retaliatory employment action may suffice: "The legislative purpose underlying FEHA's prohibition against retaliation is to prevent employers from deterring employees from asserting good faith discrimination complaints, and the use of intermediate retaliatory actions may certainly have this...