Opinion
C095006
06-02-2023
ESSEX WAYNE BROWN, Plaintiff and Appellant, v. SACRAMENTO RIVER CATS BASEBALL CLUB, LLC et al., Defendants and Respondents.
NOT TO BE PUBLISHED
Super. Ct. No. 34201600202613
RENNER, J.
Plaintiff Essex Wayne Brown worked for defendant Sacramento River Cats Baseball Club, LLC (River Cats) as the manager of the visiting team's clubhouse. The River Cats terminated Brown's employment after two seasons. Brown sued the River Cats and others, alleging various employment causes of action, including violations of California's Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.)and violations of the wage and hour provisions of the Labor Code.
Undesignated statutory references are to the Government Code.
The River Cats moved for summary judgment or, in the alternative, summary adjudication. The trial court denied the motion for summary judgment, but granted summary adjudication on several causes of action, including Brown's causes of action for race discrimination, harassment, retaliation, and failure to prevent discrimination or harassment under FEHA, and causes of action for violations of the Ralph Act (Civ. Code, § 51.7), and conversion. Brown's other causes of action were settled and dismissed, and judgment entered in the River Cats' favor.
Brown now appeals for the third time, arguing the trial court erred in summarily adjudicating the above-referenced causes of action. (See Brown v. Arizona Diamondbacks (Aug. 9, 2021, C091629) [nonpub. opn.]; Brown v. SK Baseball, LLC (July 11, 2022, C092888) [nonpub. opn.].) We disagree and affirm.
I. BACKGROUND
Brown, an African American, was hired as the visiting team clubhouse manager for the River Cats in 2014. The River Cats are a minor league baseball team and a member of the Pacific Coast League. As the visiting team clubhouse manager, Brown was responsible for maintaining and operating the clubhouse, and providing food and hospitality services (such as laundry) to visiting teams from the Pacific Coast League. The Reno Aces were one such team.
The Pacific Coast League operates in the Western, Midwestern, and Southwestern United States.
The Reno Aces are affiliated with the Arizona Diamondbacks (Diamondbacks), a major league team. Joseph Metz was an athletic trainer for the Reno Aces, employed by the Diamondbacks. The Reno Aces came to Sacramento twice during the 2014 baseball season, using the visiting clubhouse for three days in July 2014 and five days in August-September 2014.
According to Brown, Metz was a problem from the start. He was rude and disrespectful, and he refused to work with Brown to plan the team's visit. He complained about the clubhouse and let it be known he thought Brown was doing a bad job as manager. He made derogatory comments within earshot of Brown and others, saying things like," 'What are the River Cats doing down here?'" and" 'The River Cats are running a circus down here.' "
Things went from bad to worse towards the end of the Reno Aces' second visit of the 2014 season. As the team was preparing to leave, Metz turned to Brown and said, in substance," 'This is your last year here. Hope you enjoyed it. I talked to the front office, you are out of here. You will not be here next season. I made sure that will not happen.'" According to Brown, Metz also said," 'You're nothing but a low life clubby nigger.' "
Metz denied using the slur.
A couple of days later, Brown wrote a letter describing his difficulties with Metz. He gave copies of the letter to Grace Bailey, human resources manager for the River Cats, and Marian Rhodes, vice president of human resources for the Diamondbacks, and discussed the incident with Metz with both human resources professionals. The baseball season came to an end around the same time. Brown's employment with the River Cats ended in September 2014, with the end of the season.
Jeffrey Savage was the president of the River Cats during the relevant time. Savage approved the initial decision to hire Brown, relying on recommendations from African American baseball luminaries, Dusty Baker and Jerry Manuel. Savage was aware that Brown had gotten off to a rocky start, having heard complaints that Brown's organizational skills and food choices were not meeting expectations. But Savage was also aware that Brown had no previous experience as a clubhouse manager and believed he would improve with time and mentoring from the manager of the homeside clubhouse. Complaints notwithstanding, Savage decided Brown should be invited back for the 2015 season.
Brown was rehired as the visiting clubhouse manager for the 2015 baseball season, despite the previous season's difficulties. He was happy to be back. But there were soon rumblings of new problems in the visiting clubhouse.
That spring, Savage received a phone call from Branch Rickey, president of the Pacific Coast League. Rickey told Savage that a clubhouse satisfaction survey was circulating among trainers in the Pacific Coast League. Rickey indicated the survey had been created in response to visiting teams' dissatisfaction with conditions in the River Cats' visiting clubhouse.
There were other complaints from visiting teams. In June 2015, Tony DeFrancesco, manager of the Fresno Grizzlies (Grizzlies), told Savage the visiting clubhouse was dirty, with food left out and insects. Daniel Emmons, baseball operations and public relations manager for the River Cats, also received complaints about the cleanliness and organization of the clubhouse, and the quality of the food and laundry service.
These conditions did not go unnoticed by Brown's coworkers. Pablo Lopez, manager of the adjacent homeside clubhouse, found Brown was often away from his post and would leave food out overnight, with crumbs on the floor, food splatter on the counters, and cups and utensils lying around. Daniel Brown, visiting clubhouse assistant, also noticed Brown's absences.
To avoid confusion with Brown, we will refer to Daniel Brown by his first name.
The Reno Aces returned to Sacramento in June 2015, using the visiting clubhouse for four days. With the return of the Reno Aces came the return of Metz, and with him, new problems for Brown. On June 20, 2015, Phil Nevin, the manager of the Reno Aces, yelled and cursed at Brown for giving him a wrinkled shirt, saying that Brown was everything Metz said he was the year before. Later that day, Metz upbraided Brown for failing to fill a therapeutic ice tub. According to Brown, Metz screamed profanities at him and then threw an ice bucket across the room, striking him in the shin.
Less than two weeks later, Savage received a call from Derek Franks, general manager for the Grizzlies. Franks told Savage he had received negative feedback from his players about the visiting clubhouse and asked if he could bring his own staff to either run the clubhouse or assist Brown. This was the first time a visiting team had ever asked Savage to use their own staff, and Savage experienced the request as deeply embarrassing.
Following the call from Franks, Savage organized a meeting with Bailey and Brown. During the meeting, Brown complained of mistreatment by Metz and Nevin, which he characterized as having been motivated by racial animus. Brown also said that Metz was turning other teams against him. He complained that someone had sabotaged the visiting clubhouse by turning off the freezers (thereby causing food to spoil) and cutting the cords to cooling fans. He also complained that the River Cats had posted a sign in the visiting clubhouse identifying someone with the first name "Wayne" as a ticket scalper.
Savage placed Brown on paid administrative leave. While Brown was on leave, Bailey undertook an internal investigation. During the course of the investigation, Bailey interviewed various witnesses employed by the River Cats, including Emmons, Daniel, and Lopez. She also interviewed witnesses employed by other teams, including Rhodes. Bailey also requested and received a copy of an internal investigation report by Rhodes concerning Brown's allegations against Metz and Nevin.
Bailey's investigation uncovered no evidence to corroborate Brown's allegations of racial discrimination and harassment. She was also unable to determine who turned off the freezers or cut the fan cords in the visiting clubhouse. However, Bailey found evidence that Brown was often absent for extended periods of time and was said to be having difficulty getting along with others.
Savage informally investigated and reached similar conclusions. Among other things, Savage went to the visiting clubhouse and spoke with visiting players. He was told the visiting clubhouse was dirty, the food "was poor," and Brown was often missing in action. Savage inspected the clubhouse cabinets and observed moldy and improperly stored food. He also observed dead insects. Around the same time, Savage learned yet another visiting team wanted to bring their own clubhouse staff along on their next trip to Sacramento.
Savage decided to terminate Brown on July 14, 2015, following a discussion with Bailey. He based the decision on Bailey's investigation and his own inquiry, including the complaints he heard from visiting players and his inspection of the visiting clubhouse. He did not discuss the matter with Metz or Nevin or anyone else from the Reno Aces. The next month, Savage received a copy of the trainers' clubhouse satisfaction survey. According to the survey, the River Cats' visiting clubhouse was the worst in the Pacific Coast League.
Following his termination, Brown asked that the River Cats reimburse him for food and other supplies he had purchased for the visiting clubhouse, and personal property alleged to have been stolen from his office after he was placed on administrative leave. The River Cats reimbursed Brown in the amount of $4,933, representing the amounts he requested for food and other supplies ($3,857), and $1,076 for the allegedly stolen personal property. A short time later, Brown sent Bailey an email asserting that personal property worth more than $11,000 had been taken from the visiting clubhouse after he was placed on leave, including a pair of $1,200 leather shoes and a $1,200 leather bag. The River Cats authorized an additional payment of $1,382 for the allegedly stolen personal property. The River Cats maintain they do not know who could have taken Brown's personal property.
Brown filed an administrative complaint with the Department of Fair Employment and Housing (DFEH) and received a right to sue letter on February 25, 2016. He then commenced the present action, naming the River Cats, the Reno Aces, the Diamondbacks, and Metz as defendants. The second amended complaint, which is the operative pleading, asserts 14 causes of action against the River Cats, including violations of FEHA and wage and hour violations under the Labor Code.
The River Cats answered the second amended complaint and thereafter moved for summary judgment or, in the alternative, summary adjudication as to each cause of action, providing a separate statement of undisputed material facts as required by Code of Civil Procedure section 437c, subdivision (b)(1). As relevant here, the River Cats argued they had legitimate, nondiscriminatory reasons for terminating Brown's employment. They also argued the 2014 incident in which Metz used an egregious racial epithet against Brown was time-barred and not sufficiently similar to any of the incidents alleged to have occurred during the 2015 baseball season to apply the continuing violation doctrine. The River Cats also argued they could not be vicariously liable for violations of the Ralph Act by Metz, or conversion. The River Cats' motion was supported by declarations from Savage, Bailey, and others.
Brown opposed the motion. He argued the River Cats' purportedly legitimate reasons for terminating his employment were pretextual, and he offered evidence they failed to hire another African American man, Wilfert Williams, as a clubhouse assistant, and failed to hire his children as batboys. He argued the cause of action for racial harassment was saved by the continuing violation doctrine, because Metz intimated at the close of the 2014 season that other trainers in the Pacific Coast League were arrayed against him, and trainers complained about Brown during the 2015 season. He also argued Bailey's internal investigation was a sham, and the timing of his termination raised an issue of material fact as to retaliation. Brown's opposition was supported by declarations from himself and three caterers. All averred that they never received any complaints about the quality of the food in the visiting clubhouse.
Brown's opposition was also supported by a declaration from Jerry Manuel, a former player and manager for Major League Baseball.
The trial court held a hearing on the motion for summary judgment or summary adjudication in January 2020. Following the hearing, the trial court entered an order denying the motion for summary judgment but granting summary adjudication on several causes of action, including: (1) race discrimination in violation of section 12940, subdivision (a); (2) racial harassment in violation of section 12940, subdivision (j)(1); (3) retaliation in violation of section 12940, subdivision (h); (4) failure to prevent discrimination or harassment in violation of section 12940, subdivision (k); (5) violations of the Ralph Act (Civ. Code, § 51.7); and (6) common law conversion. As relevant here, the trial court found the River Cats presented evidence they had legitimate business reasons for terminating Brown-namely, that they had received complaints about Brown, the visiting clubhouse was unclean, and Brown was often absent-and Brown failed to present evidence showing the reasons were pretextual. The trial court further found the River Cats presented evidence the 2014 incident involving the use of a racial epithet by Metz was time-barred, and Brown failed to show the incident was sufficiently similar to subsequent events to justify application of the continuing violation doctrine. The trial court further found the River Cats demonstrated Brown could not establish they threatened or committed a violent act against him, or were vicariously liable for conversion. The trial court denied the River Cats' motion with respect to several of Brown's causes of action for wage and hour violations under the Labor Code, and a derivative cause of action for violating the Unfair Competition Law. (Bus. &Prof. Code, § 17200 et seq.)
The trial court also granted summary adjudication on causes of action for wrongful termination in violation of public policy, conversion of gratuities, failure to reimburse work expenses, waiting time penalties, and claim for punitive damages.
The parties settled Brown's remaining causes of action and the trial court entered judgment in favor of the River Cats. This appeal timely followed.
II. DISCUSSION
A. Standard of Review
A motion for summary judgment or summary adjudication is properly granted only when "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); see Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 618.) We review a grant of summary judgment or summary adjudication de novo (Samara v. Matar (2018) 5 Cal.5th 322, 338) and decide independently whether the facts not subject to triable dispute warrant judgment for the moving party or a determination a cause of action has no merit as a matter of law. (Hartford Casualty Ins. Co. v Swift Distribution, Inc. (2014) 59 Cal.4th 277, 286; Schachter v. Citigroup, Inc. (2009) 47 Cal.4th 610, 618.) The evidence must be viewed in the light most favorable to the nonmoving party. (Ennabe v. Manosa (2014) 58 Cal.4th 697, 703.)
When a defendant moves for summary judgment or summary adjudication in a situation in which the plaintiff at trial would have the burden of proof by a preponderance of the evidence, the defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. Alternatively, the defendant may present evidence to" 'show[] that one or more elements of the cause of action . . . cannot be established' by the plaintiff." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853; see Code Civ. Proc., § 437c, subd. (p)(2).)" '" 'The moving party bears the burden of showing the court that the plaintiff "has not established, and cannot reasonably expect to establish,"' the elements of his or her cause of action." '" (Ennabe v. Manosa, supra, 58 Cal.4th at p. 705; accord Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 720; Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003 ["the defendant must present evidence that would preclude a reasonable trier of fact from finding that it was more likely than not that the material fact was true [citation], or the defendant must establish that an element of the claim cannot be established, by presenting evidence that the plaintiff 'does not possess and cannot reasonably obtain, needed evidence' "].)
Once the defendant's initial burden has been met, the burden shifts to the plaintiff to demonstrate, by reference to specific facts, not just allegations in the pleadings, there is a triable issue of material fact as to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.) On appeal from an order granting summary judgment or summary adjudication, "a reviewing court must examine the evidence de novo and should draw reasonable inferences in favor of the nonmoving party." (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 470 (emphasis omitted); accord, Aguilar, supra, at p. 843; see also Rosas v. BASF Corp (2015) 236 Cal.App.4th 1378, 1392 ["summary judgment cannot be granted when the facts are susceptible of more than one reasonable inference"].) "A triable issue of material fact exists if the evidence and inferences therefrom would allow a reasonable juror to find the underlying fact in favor of the party opposing summary judgment [or summary adjudication]." (Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1158.)
B. FEHA
FEHA prohibits racially discriminatory employment practices. It is an unlawful employment practice "[f]or an employer, because of the race . . . of any person, to . . . discriminate against the person in compensation or in terms, conditions, or privileges of employment." (§ 12940, subd. (a).) Under FEHA, terminations, demotions, and denials of available positions may constitute unlawful employment practices. (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 373-375; Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1038.) FEHA also provides that it is an unlawful employment practice "[f]or any employer . . . to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part." (§ 12940, subd. (h).)
In cases alleging employment discrimination under FEHA, California courts apply the three-part test established by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802. (See Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 (Guz).) Under that test, the employee has the initial burden at trial to establish a prima facie case of discrimination by providing evidence that: (1) he was a member of a protected class-here, an African American; (2) he was performing competently; (3) he suffered an adverse employment action-here, termination; and (4) "some other circumstance suggests discriminatory motive." (Id. at p. 355.) If the employee does so, a presumption of discrimination arises. (Ibid.) The burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for the action. (Id. at pp. 355-356.) If the employer meets its burden, the presumption disappears and the burden shifts back to the plaintiff to attack the employer's reason as a pretext for discrimination or to offer other evidence of a discriminatory motive. (Id. at p. 356.)
This framework is modified in the context of an employer's motion for summary judgment or summary adjudication. (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 861 (Serri).) As the moving party, the employer" 'has the initial burden to present admissible evidence showing either that one or more elements of plaintiff's prima facie case is lacking or that the adverse employment action was based upon legitimate, nondiscriminatory factors.'" (Ibid.) "[I]f nondiscriminatory, [the employer's] true reasons need not necessarily have been wise or correct. [Citations.] While the objective soundness of an employer's proffered reasons supports their credibility . . ., the ultimate issue is simply whether the employer acted with a motive to discriminate illegally. Thus, 'legitimate' reasons [citation] in this context are reasons that are facially unrelated to prohibited bias, and which, if true, would thus preclude a finding of discrimination." (Guz, supra, 24 Cal.4th at p. 358.)
If the employer meets this burden, "the burden shifts to the employee to 'demonstrate a triable issue by producing substantial evidence that the employer's stated reasons were untrue or pretextual, or that the employer acted with a discriminatory animus, such that a reasonable trier of fact could conclude that the employer engaged in intentional discrimination or other unlawful action.'" (Serri, supra, 226 Cal.App.4th at p. 861.)" 'The [employee] cannot simply show that the employer's decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent.'" (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1005.) The employee must instead set forth specific facts demonstrating" 'such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them "unworthy of credence." '" (Ibid.)
"In discrimination cases, proof of the employer's reasons for an adverse action often depends on inferences rather than on direct evidence. 'An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the action.' [Citation.] Thus, even though we may expect a plaintiff to rely on inferences rather than direct evidence to create a factual dispute on the question of motive, a material triable controversy is not established unless the inference is reasonable. And an inference is reasonable if, and only if, it implies the unlawful motive is more likely than defendant's proffered explanation." (Cucuzza v. City of Santa Clara, supra, 104 Cal.App.4th at pp. 1038.) "If plaintiff fails to produce substantial responsive evidence to demonstrate a material triable controversy, summary judgment [or summary adjudication] is properly granted." (Id. at p. 1039.)
1. Race Discrimination
For purposes of analysis, we presume Brown has met his minimal burden to establish a prima facie case of discrimination. We can also move quickly through the next step in our analysis: whether the River Cats met their burden to show they terminated Brown for legitimate, nondiscriminatory reasons. We have little difficulty concluding they did. The River Cats presented extensive evidence that they received complaints about Brown's performance as visiting clubhouse manager, from members of visiting teams and coworkers alike, over the course of two seasons. That evidence, which was largely undisputed, amply satisfies the River Cats' burden on summary adjudication. That brings us to the question of pretext, which requires us to determine whether Brown presented substantial responsive evidence raising a triable issue of fact showing the River Cats' stated reasons for terminating him were a pretext for their true, discriminatory reason (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 224), or their decision was substantially motivated by a discriminatory animus (Husman v. Toyota Motor Credit Corp. (2017) 12 Cal.App.5th 1168, 1186 [summary judgment not proper "[i]f triable issues of fact exist whether discrimination was a substantial motivating reason" for the adverse action]). As we shall explain, Brown falls short of meeting his burden.
Brown attempts to show pretext in three ways. First, he argues pretext may be inferred from the River Cats' treatment of other African Americans, including Williams and his sons. Second, he argues pretext may be inferred from Bailey's investigation, which he characterizes as inadequate. Third, he argues pretext may be inferred from" 'stray remarks'" by the River Cats and others. We address these arguments below.
Brown also suggests the River Cats' proffered reasons for his termination, as set forth in the Savage declaration, are unworthy of credence. Specifically, Brown suggests the River Cats' proffered reasons are unworthy of credence because they fail to account for the views of African American caterers who thought Brown was doing a fine job and serving quality food. This evidence does not raise a triable issue of material fact. "It is not sufficient for an employee to make a bare prima facie showing or to simply deny the credibility of the employer's witnesses or to speculate as to discriminatory motive. [Citations.] Rather, it is incumbent upon the employee to produce 'substantial responsive evidence' demonstrating the existence of a material triable controversy as to pretext or discriminatory animus on the part of the employer." (Serri, supra, 226 Cal.App.4th at p. 862; see also Johnson v. United Cerebral Palsy/Spastic Children's Foundation (2009) 173 Cal.App.4th 740, 756 (Johnson) ["a plaintiff must do more than raise an issue whether the employer's action was unsound, unfair, wrong or mistaken"].) Evidence that African American caterers received a different impression of Brown's management skills does not constitute substantial evidence that the River Cats' reasons were untrue or pretextual or that the River Cats acted with discriminatory animus.
a. "Me Too" Evidence
A plaintiff may prove discriminatory intent using either direct or circumstantial evidence. (Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 591.) Because direct evidence of intentional discrimination is rare, the plaintiff usually must rely on circumstantial evidence to prove discriminatory animus. (Guz, supra, 24 Cal.4th at p. 354.) Such circumstantial proof of discrimination may include evidence that other, similarly situated employees were subjected to discriminatory conduct by the employer, commonly referred to as "me too" evidence. (Johnson, supra, 173 Cal.App.4th at p. 759 ["me too" evidence of discrimination by former employees were "sufficient to raise a triable issue of material fact as to why defendant fired plaintiff"].)
Brown argues pretext and discriminatory intent can be inferred from evidence the River Cats failed to hire Williams as assistant clubhouse manager. He relies on his own declaration, which indicates he recommended Williams for the position to Emmons and Bailey during the 2015 season. According to Brown, Emmons and Bailey ignored the recommendation, despite Williams' experience working in the visiting clubhouse as a caterer. Instead, Brown says, Emmons and Bailey hired Daniel, a Caucasian teenager, then 17 years old.
The record does not contain a declaration from Williams.
This episode does not amount to substantial evidence of pretext. For one thing, no evidence suggests Savage, the decisionmaker in Brown's case, was involved in the decision to hire or not hire Williams. (Cf. Johnson, supra, 173 Cal.App.4th at 759 [plaintiffs' "me too" declarations raised a triable issue other employees "worked at the same facility where plaintiff worked, [and] they were supervised by the same people that supervised plaintiff"].) For another, Brown and Williams were not similarly situated with respect to the River Cats. While Brown implies the River Cats refused to hire Williams on account of his race, nothing suggests Brown suffered from any similar act of discrimination. To the contrary, the undisputed evidence establishes that Brown was hired by the River Cats on two separate occasions. What's more, Brown has not presented evidence sufficient to raise an inference that the River Cats failed to consider the recommendation that they hire Williams due to racial animus, rather than genuine concern about Brown's management of the visiting clubhouse, which were by then common knowledge. Whatever minimal relevance Brown's "me too" evidence may have, it does not constitute substantial or specific evidence that the River Cats' reasons for terminating him were pretextual.
Brown also asserts that baseball operations manager Mark Ling (Emmons' predecessor) hired his sons as batboys for some number of games during the 2014 season, but failed to offer them permanent positions and failed to pay them. Here again, the purported evidence does not involve the same supervisory personnel or similar acts of discrimination. Thus, Brown's "me too" evidence concerning the River Cats' failure to pay or hire his sons, like the evidence concerning their failure to hire Williams, is not sufficiently similar to the alleged mistreatment of Brown to raise a triable issue of fact.
He also asserts, without citation to any evidence, that the River Cats eventually hired Caucasian batboys.
b. Sham Investigation
Brown next argues pretext may be inferred from Bailey's investigation, which he characterizes as "grossly inadequate." It is true that an inadequate or sham investigation can support an inference of pretext. (See, e.g., Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 280 ["An employer's failure to interview witnesses for potentially exculpatory information evidences pretext"]; Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 117 [reversing summary judgment where investigator failed to speak to plaintiff about underlying incident and instead relied solely on accounts from individuals with motive "to portray plaintiff's conduct 'in the worst possible light' "].) However, no evidence suggests Bailey's investigation was a sham, even supposing another human resources professional might have handled the matter differently.
Brown faults Bailey for failing to investigate the incident involving Metz's use of a racial slur in 2014. However, it is undisputed that Bailey received and reviewed Brown's complaint, presented the complaint to Savage, and discussed the matter with Brown. It is also undisputed that Brown gave a copy of the complaint to Rhodes (the vice president of human resources for the Diamondbacks), and discussed the matter with her. Contrary to Brown's contention, nothing suggests Bailey refused to investigate, or said she was not obliged to investigate because he was no longer employed by the River Cats. Nor does anything suggest she failed to investigate promptly. Although Bailey does not appear to have interviewed Metz, she may have reasonably believed she would be unable to do so, considering he was not employed by the River Cats. And though Bailey might have been well advised to reach out to Rhodes, we cannot say her failure to do so constitutes substantial evidence that the investigation was a sham.
Bailey conducted a more thorough investigation in 2015, after Brown was placed on administrative leave. She interviewed several River Cats employees, including Emmons, Daniel, and Lopez. She also interviewed two witnesses suggested by Brown, Williams and Trayvon Robinson, formerly of the Reno Aces. She also interviewed Rhodes and obtained a copy of Rhodes' internal investigation report.
Brown takes Bailey to task for focusing the 2015 investigation on his performance problems, rather than his allegations of racial discrimination and harassment. However, the investigation was precipitated by the telephone call from Franks, in which the general manager for the rival team asked Savage whether they could bring their own staff to Sacramento to run the visiting clubhouse. It was then, the record shows, that Savage called a meeting with Brown and Bailey and instructed Bailey to find out what was going on in the clubhouse. Although Brown voiced his concerns in the meeting, and Bailey was plainly aware of them, the purpose of the investigation was to determine what the problems were, not ferret out evidence to support Brown's allegations. That the investigation uncovered evidence that Brown's performance was not up to par does not amount to substantial evidence that Bailey's efforts were spurious or motivated by discriminatory animus.
Brown identifies other purported problems with Bailey's investigation. Among other things, he faults Bailey for failing to interview Metz or Nevin, failing to tell him she would be asking questions about his performance, failing to prepare an investigative plan, and shredding her handwritten notes. Brown also complains that Bailey had little training as an investigator and interviewed Caucasian witnesses in person, and African American witnesses by phone. These arguments do not constitute substantial evidence that the investigation was a sham.
As previously discussed, Bailey could have reasonably believed she would not be able to speak with Metz or Nevin, considering they were employed by another team. Bailey could have also reasonably believed that speaking with Rhodes and reviewing her report would be the next best thing. She could have also believed that speaking with Robinson, who was present in the clubhouse when Metz upbraided Brown, would be more meaningful than speaking with Metz or Nevin. Again, Bailey's failure to interview Metz and Nevin does not provide substantial evidence that the investigation was a sham. The same is true for the other purported problems with the investigation. That Bailey failed to define the scope of the investigation for Brown, failed to prepare an investigative plan, and failed to preserve her handwritten notes does not support an inference of pretext. Likewise, Bailey's inexperience does not show that she or anyone else associated with the River Cats acted with discriminatory motive. And nothing suggests the decision to interview some witnesses by telephone and others in person was motivated by anything other than convenience. Brown fails to present substantial and specific evidence that the investigation was a sham.
c. Stray Remarks
Brown next argues that pretext may be shown by" 'stray remarks'" by the River Cats and others. He emphasizes Metz's use of an offensive racial epithet, adding that Metz also complained that the River Cats were" 'running a circus down here,'" which Brown perceives as an attempt to compare him to a monkey. He also asserts that Metz told him," 'You are nothing,'" and" 'The trainers are all with me.'" However, Metz's alleged remarks and behavior, while offensive and inappropriate, do not raise a triable issue of fact as to racial animus in employment decisionmaking by the River Cats. (See, e.g., Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 231 ["stray remarks that are unconnected to employment decisionmaking" are not actionable]; Horn v. Cushman &Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 809 [an isolated remark by a person who did not make the decision to terminate plaintiff, which was not made in the context of plaintiff's termination, was entitled to virtually no weight in determining whether the decision maker harbored discriminatory animus]; see also Merrick v. Farmers Insurance Group (9th Cir. 1990) 892 F.2d 1434, 1438 [stray remarks unrelated to decisionmaking process were not sufficient to raise triable issues concerning discriminatory nature of discharge].) That Metz may have been motivated by racial animus does not mean the River Cats were.
Closer to home, Brown suggests Ling engaged in discrimination by calling him by his middle name, "Wayne," when he prefers to be called by his first name, "Essex."Brown also asserts that Ling called him, "Weezy," an apparent reference to rap artist Lil' Wayne. However, these assertions do not appear in Brown's opposition to the River Cats' separate statement of undisputed facts, and thus we do not consider them. (City of Pasadena v. Superior Court (2014) 228 Cal.App.4th 1228, 1238, fn. 4 ["' "[T]his is the Golden Rule of Summary Adjudication: if it is not set forth in the separate statement, it does not exist"' "].)
We note that Brown's own papers refer to him as "Wayne Brown" or "Wayne."
Brown also asserts that someone left a piece of paper on his desk with the single word "Baker" written on it-a reference, Brown says, to African American baseball manager and former player Dusty Baker. According to Brown, the word "sent a racial hate message and tied all the vandalism of the summer to racial harassment and retaliation." These facts do not appear in Brown's opposition to the River Cats' separate statement of undisputed facts, and we decline to consider them. (City of Pasadena v. Superior Court, supra, 228 Cal.App.4th at p. 1238, fn. 4.)
Brown next asserts that Emmons engaged in racial discrimination by posting a photocopy of the driver's license of another African American man named Wayne on the wall near Brown's office, with a warning that the man was a ticket scalper. Brown says he was embarrassed and humiliated, as he feared visiting players and others might take him for a scalper. However, no evidence suggests the posting of the photocopy was related to the decision to terminate Brown's employment. That Brown may have been embarrassed to share the same name as the man in the photocopy does not raise a triable issue as to pretext. (McRae v. Department of Corrections &Rehabilitation (2006) 142 Cal.App.4th 377, 392-393 [humiliating comments or being put in an uncomfortable situation with a coworker is not sufficient]; id. at. p. 386 [the workplace is not an"' "idyllic retreat"' "]; see also Harris v. City of Santa Monica, supra, 56 Cal.4th at p. 231 [FEHA "does not prohibit discrimination 'in the air' "].)
Finally, Brown suggests the River Cats engaged in racial discrimination by circulating an email with the subject line, "Wayne Saga." That email, from Emmons to Savage, reports that the freezers had been turned off and fan cords cut in the visiting clubhouse. The email does not disparage Brown and does not raise a triable issue as to racial animus or pretext. The trial court properly granted summary adjudication of Brown's cause of action for race discrimination.
2. Racial Harassment
Brown next argues the trial court erred in granting summary adjudication on his cause of action for racial harassment. "A plaintiff suing for violations of FEHA ordinarily cannot recover for acts occurring more than one year before the filing of the DFEH complaint." (Jumaane v. City of Los Angeles (2015) 241 Cal.App.4th 1390, 1400; accord Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 818 (Richards); see § 12960, subd. (e).) Brown acknowledges that he filed an administrative complaint with DFEH on February 25, 2016, more than one year after Metz used a racial epithet against him. Nevertheless, he contends the continuing violation doctrine applies and allows him to recover for racial harassment alleged to have occurred during the 2014 season. It does not.
The continuing violation doctrine "allows liability for unlawful employer conduct occurring outside the statute of limitations if it is sufficiently connected to unlawful conduct within the limitations period." (Richards, supra, 26 Cal.4th at p. 802; see Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1198 ["Allegations of a pattern of reasonably frequent and similar acts may, in a given case, justify treating the acts as an indivisible course of conduct actionable in its entirety"].) The employer's unlawful actions are "sufficiently connected" if they satisfy three criteria: (1) the unlawful conduct occurring outside the statute of limitations is "sufficiently similar in kind" to the unlawful conduct within the limitations period; (2) the unlawful actions have occurred with "reasonable frequency"; and (3) they have not "acquired a degree of permanence." (Richards, supra, at p. 823.) The plaintiff bears the burden to demonstrate his claims are founded on a pattern or practice of employer conduct that continued into the limitations period. (Jumaane v. City of Los Angeles, supra, 241 Cal.App.4th at p. 1402 ["the plaintiff has the burden of proof to show his or her claims are timely under the continuing violation doctrine"].)
Brown argues the River Cats countenanced a continuous course of harassing conduct, beginning with Metz's use of a racial epithet in 2014, and continuing into 2015, with Metz and Nevin subjecting him to vitriol over a wrinkled shirt, Metz turning other trainers against him, Metz throwing an ice bucket at him, and an unknown person or persons sabotaging his equipment and stealing his personal property. But Brown makes no effort to show that the allegedly harassing conduct that occurred before the limitations period was similar to the conduct that occurred during the limitations period. Although Metz provides a common thread, Brown does not point to any evidence raising a triable issue that any of the acts attributed to Metz in 2015 were racially derogatory or harassing, as opposed to merely rude and belligerent. FEHA does not protect employees from boorish behavior or personal animosity. (See Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 295 ["FEHA is 'not a "civility code"' "]; Doe v. Department of Correction &Rehabilitation (2019) 43 Cal.App.5th 721, 735 [FEHA" '" 'is not a shield against harsh treatment at the workplace'"' "].) Likewise, no nonspeculative evidence suggests the alleged sabotage of Brown's equipment or theft of his personal property were racially motivated. (See Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1118 [speculation insufficient to establish discrimination led to hostile conduct].)
Brown also asserts his supervisor (presumably, Ling) called him "Weezy" in 2014. As previously discussed, that assertion does not appear in Brown's opposition to the River Cats separate statement of undisputed facts and we decline to consider it. (City of Pasadena v. Superior Court, supra, 228 Cal.App.4th at p. 1238, fn. 4.)
As previously discussed, Brown presented evidence that Metz used an offensive racial epithet against him at the end of the 2014 season. He also presented evidence that Nevin upbraided him in 2015, and stated, in substance," 'You're everything that Metz said you were last year.'" We considered these events in our unpublished opinion in Brown v. Arizona Diamondbacks, supra, C091629 . In reversing summary judgment on Brown's cause of action against Metz for violations of the Ralph Act, we concluded, "a reasonable jury could find that Metz called Brown an offensive name at the end of the 2014 season, expressed racial animus towards Brown in conversation with Nevin (leading Nevin to remark,' "You are everything Metz said you were last year" '), and immediately resumed a campaign of harassment and intimidation upon returning to Sacramento for the 2015 season, yelling and cursing at Brown, and ultimately throwing a bucket at him." (Ibid.)
Our analysis of Brown's cause of action against Metz for violations of the Ralph Act was concerned with, "whether Metz was substantially motivated by race when he threw an ice bucket at Brown in 2015." (Brown v. Arizona Diamondbacks, supra, C091629.) We were unable to say, on the record then before us, that no triable issues existed as to Metz's motivation. (Ibid.) The present appeal raises a different question: whether Metz's unlawful conduct before the limitations period (i.e., using an offensive racial epithet) was sufficiently connected to his unlawful conduct during the limitations period (i.e., throwing an ice bucket). (Richards, supra, 26 Cal.4th at p. 802.)
Even assuming that Metz was substantially motivated by race when he threw an ice bucket at Brown in 2015, and assuming further that the racial slur and bucket throwing incidents were "substantially similar in kind," we cannot say they occurred with "reasonable frequency." (Richards, supra, 26 Cal.4th at p. 823.) More than nine months elapsed between the two incidents. Further, Brown has identified only two incidents of allegedly unlawful conduct over a yearlong period, which can only be described as sporadic, rather than continuous conduct.
Under the circumstances, we conclude Brown has not presented evidence sufficient for a reasonable jury to find the harassing conduct occurred with reasonable frequency to constitute a continuing violation. It follows that Brown's allegations concerning conduct that occurred in 2014 are barred by the statute of limitations. That leaves only the alleged conduct that occurred in 2015, none of which can be said to have been so "severe and pervasive" that it altered the conditions of Brown's employment. (Lyle v. Warner Brothers Television Productions, supra, 38 Cal.4th at p. 279.) The trial court properly granted the motion for summary adjudication on Brown's cause of action for racial harassment.
3. Retaliation
FEHA makes it unlawful for an employer to "discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part." (§ 12940, subd. (h).) Brown argues the trial court erred in granting summary adjudication on his cause of action for retaliation. We are not persuaded.
To establish a prima facie case of retaliation under FEHA, the employee must show "(1) he or she engaged in a 'protected activity,' (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action." (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) Once the employee establishes a prima facie case, the employer must offer a legitimate, nonretaliatory reason for the adverse employment action. (Ibid.) If the defendant offers a legitimate reason, "the presumption of retaliation '" 'drops out of the picture,'"' and the burden shifts back to the employee to prove intentional retaliation." (Ibid.) Here, as we have shown, the River Cats presented ample evidence establishing legitimate reasons for Brown's termination. It was thus up to Brown to present evidence raising a triable issue of fact that his firing was an act of intentional retaliation. (Ibid.) This he failed to do.
Brown argues retaliation can be inferred from the timing of his termination. He focuses on evidence that he complained to Savage about Metz and Nevin on June 21, 2015 (the day after the bucket throwing incident), and was placed on administrative leave and terminated some weeks later. According to Brown, the closeness in time between these events raises an inference of retaliation and provides the requisite causal link between protected activity and termination. We disagree.
Brown says 16 days elapsed between June 21, 2015, when he complained to Savage, and the date of his termination. However, the record reflects that Brown was placed on administrative leave on July 7, 2015, and terminated on July 14, 2015. Taking judicial notice of the 2015 calendar on our own motion, we observe that 16 days elapsed between June 21, 2015, and July 7, 2015, and 23 days elapsed between June 21, 2015, and July 14, 2015. (Evid. Code, §§ 452, subd. (h), 459, subd. (a); Douglas v. Janis (1974) 43 Cal.App.3d 931, 936.)
"[A] mere temporal relationship between an employee's protected activity and the adverse employment action, while sufficient for the plaintiff's prima facie case, cannot create a triable issue of fact if the employer offers a legitimate, nonretaliatory reason for the adverse action." (Light v. Department of Parks &Recreation (2017) 14 Cal.App.5th 75, 94.) Here, as we have said, the River Cats offered legitimate reasons for Brown's termination. Thus, Brown was obliged to offer evidence sufficient to allow a trier of fact to find either the River Cats' stated reasons were pretextual or"' "the evidence as a whole support[] a reasoned inference that the challenged action was the product of discriminatory or retaliatory animus." '" (Ibid.)
We have already rejected Brown's pretext arguments. We now conclude that the evidence as a whole does not support a reasoned inference that Brown's termination was the product of retaliatory animus. (Light v. Department of Parks & Recreation, supra, 14 Cal.App.5th at p. 94.) The record reveals that Brown complained about Metz on multiple occasions, over a period of many months. To reiterate, Brown says Metz used a racial epithet against him at the end of the 2014 season. He promptly reported the incident to Bailey, who then told Savage. Brown's employment for the 2014 season ended shortly thereafter. But Brown does not suggest the termination was retaliatory. To the contrary, it is undisputed that Brown was rehired as assistant clubhouse manager for the 2015 season, despite his complaints about Metz.
Brown continued to raise concerns about Metz upon his return. He says he discussed Metz with Savage and Bailey on several occasions over the course of 2015, beginning as early as early as January 2015. Only the last of these discussions, on June 21, 2015, is alleged to have resulted in any adverse employment action. No reasonable trier of fact could infer retaliatory intent from the mere temporal proximity of these events. That Brown complained about Metz repeatedly over the course of many months, and suffered no adverse employment action, defeats any inference of a causal connection between his protected activity on June 21, 2015, and termination weeks later. In the absence of any other evidence that the River Cats' stated reasons were pretextual or that the circumstances "as a whole" support a reasoned inference of retaliatory intent (and Brown offers none), we conclude summary adjudication was properly granted.
4. Failure to Prevent Discrimination or Harassment
FEHA also makes it unlawful for an employer to "fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring." (§ 12940, subd. (k).) A cause of action for failure to prevent discrimination is by nature derivative: Without actionable discrimination, there can be no failure to prevent discrimination. (Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 880.) The same is true for failure to prevent harassment. Having concluded that summary adjudication was properly granted as to Brown's causes of action for discrimination and harassment, we likewise conclude that summary adjudication was properly granted as to the cause of action for failure to prevent discrimination or harassment.
C. Ralph Act
Brown next argues the trial court erred in granting summary adjudication on his Ralph Act cause of action. As before, he argues Metz violated the Ralph Act by throwing the ice bucket at him. He also argues, for the first time, that the River Cats' ratified the violation by failing to intervene on his behalf. Specifically, he argues Emmons could have stopped Metz, but failed to do so.
This argument was not clearly raised in the trial court and we would be well within our rights to treat the argument as forfeited. (Zimmerman, Rosenfeld, Gersh &Leeds LLP v. Larson (2005) 131 Cal.App.4th 1466, 1488 ["The appellate court can deem an argument raised in an appeal from a grant of summary judgment waived if it was not raised below and requires consideration of new factual questions"].) But even assuming the argument were properly before us, we would reject it.
"Ratification is the voluntary election by a person to adopt in some manner as his own an act which was purportedly done on his behalf by another person, the effect of which, as to some or all persons, is to treat the act as if originally authorized by him." (Rakestraw v. Rodrigues (1972) 8 Cal.3d 67, 73.) No evidence suggests Emmons or anyone else associated with the River Cats adopted or authorized any act by Metz. Likewise, no evidence suggests that Metz acted on behalf of Emmons or anyone else associated with the River Cats. Summary adjudication was properly granted on the Ralph Act cause of action.
D. Conversion
Finally, Brown argues the trial court erred in granting summary adjudication on his cause of action for conversion of personal property. Brown's conversion cause of action encompasses three incidents. First, Brown says someone turned off freezers in the visiting clubhouse, causing food spoilage. Second, Brown says someone cut the cords to cooling fans in the visiting clubhouse. Third, Brown says someone took personal property from his office while he was on paid administrative leave. Brown has not raised a triable issue of material fact as to any of these theories.
Conversion is "the wrongful exercise of dominion over" property that belongs to someone else. (Burlesci v. Petersen (1998) 68 Cal.App.4th 1062, 1066.) The elements of a conversion cause of action are: "(1) the plaintiff's ownership or right to possession of the property; (2) the defendant's conversion by a wrongful act or disposition of property rights; and (3) damages." (Ibid.) "To establish a conversion[,] the owner must show an intention on the part of the wrongdoer to convert the owner's property, or to exercise some act of ownership over it, or to prevent the owner's taking possession of his property." (Carrey v. Boyes Hot Springs Resort, Inc. (1996) 245 Cal.App.2d 618, 621.)
Brown argues without citation to the record that "there was circumstantial evidence identifying the actors" responsible for the alleged conversion. He observes the River Cats exercised control over the clubhouse, there were no signs of breaking and entering, and only a limited number of people had the key. He implies someone associated with the River Cats failed to secure the visiting clubhouse and/or his office, enabling unidentified members of the Grizzlies to unplug the freezers, cut the cords to the fans, and steal his property. He theorizes that some members of the Grizzlies were in league with Metz, and placed insects in the visiting clubhouse cabinets to make him look bad. No evidence supports these theories, which would not support a cause of action for conversion in any event. (See Spates v. Dameron Hospital Assn. (2003) 114 Cal.App.4th 208, 222 ["conversion requires affirmative action to deprive another of property, not a lack of action"].) No evidence suggests the River Cats took any affirmative action to interfere with Brown's property, and Brown acknowledges he does not know who committed the alleged acts of conversion. Summary adjudication of the conversion cause of action was properly granted.
III. DISPOSITION
The judgment is affirmed. Respondent Sacramento River Cats Baseball Club, LLC is entitled to recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) &(2).)
We concur: HULL, Acting P. J., KRAUSE, J.