Opinion
Case No. CV 01-05935 NM (AIJx)
January 14, 2002
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
After an absence of eight months from his position as a professor at DeVry Institute of Technology, Plaintiff Vrej Khachikian resigned. Plaintiff alleges that he was constructively terminated by DeVry for refusing to engage in unlawful conduct and whistle-blowing. Plaintiff also asserts a claim for retaliation.
II. FACTS
Plaintiff began working as an assistant professor at DeVry's Pomona, California campus in 1989. Plaintiffs Statement of Genuine Issues ("Plaintiff's Statement") ¶ 1. Plaintiff was promoted to associate professor in 1991 and full professor in 1994. Id. ¶ 3. Plaintiffs immediate supervisor was William Abrose, Dean of Business Programs. Id., ¶ 5. Dean Ambrose reported to Michael Parsons, Dean of Academic Affairs, who reported to Rose Marie Dishman, President of DeVry Institute for the Southern California region. Id. ¶ 6; Khachikian Decl. ¶ 2.
In April 1999, Dean Parsons removed the model 486 computers from Plaintiff's computer lab to provide to faculty and replaced them with older computers that Plaintiff believed were obsolete. Plaintiffs Statement ¶¶ 9-10. Plaintiff complained to the administration and expressed his dissatisfaction over Dean Parsons' actions to his students, advising the class that the computers were obsolete. Id. ¶¶ 12-13. A student in Plaintiff's class subsequently complained to the administration about the computers in Plaintiff's lab. Id. ¶ 13.
Dean Ambrose testified that he also received complaints from at least two or three students about the computers in Plaintiff's lab. Baltaxe Decl., Ambrose Depo. at 15-16.
Plaintiffs request to upgrade the computers in his lab was discussed at a faculty meeting in May 1999. Id. ¶ 15. Dean Parsons and the Dean of Computer Information Systems and Telecommunications believed the computers in Plaintiff's lab were adequate. Id. ¶ 17. Dean Ambrose agreed with Plaintiff that DeVry should purchase Pentium computers for the lab, which were more advanced that the 486 computers Dean Parsons removed from the lab. Id. Plaintiff alleges that Dean Parsons was abusive and condescending to him at the faculty meeting. Id. ¶¶ 52-53. Plaintiff alleges that Dean Parsons yelled at him, called him a "liar" and a "crybaby," and told him he was incompetent if he could not make use of the older computers in the lab. Id. ¶ 53. Plaintiff admits that he, too, "got emotional" in presenting his case. Khachikian Decl., Ex. 2A. At the end of the meeting, Dean Parsons acceded to Plaintiff's request to put six Pentium computers in the lab. Plaintiffs Statement ¶ 18. The day after the faculty meeting, President Dishman allegedly accused Plaintiff of inciting students to complain about the computers. Khachikian Decl. ¶ 13. Plaintiff received his new computers within days of the meeting and had no further problems with the computers in his lab. Plaintiffs Statement ¶¶ 19-20.
In June 1999, Plaintiff received a counseling memorandum concerning his comments to his students over the quality of their computer equipment.Id. ¶ 21; Plaintiff's Opposition, Ex. 2. The memo stated:
Recently, you met with academic Management to discuss issues surrounding comments that you made to students regarding the quality of computer. equipment provided to them. Your comments reflected your own opinion; it is not correct. In fact other colleges also use similar equipment for laboratory purposes. this practice in no way compromises the integrity of instruction.
We feel strongly that educators have a right to their opinion. But, in a teaching environment professional integrity dictates you advise the students of both sides. To do otherwise leaves your intentions open to question and drives a wedge between our students, the faculty and administration. Intentionally promoting ill will toward DeVry cannot be tolerated from our staff. I sincerely urge that you conduct yourself in a less emotional manner and your disagreements be voiced to management without using students to further your own agenda.
I know that the mutual respect we hold for one another will cause you to reconsider future actions of this type.
Plaintiff's Opposition, Ex. 2. Although the memo became part of Plaintiff's employment file, the memo did not threaten suspension, termination, or other disciplinary sanction. Plaintiffs Statement ¶ 22; Baltaxe Decl., Ambrose Depo. at 42. Plaintiff responded to the counseling memo by writing President Dishman a letter acknowledging that he had been wrong to become emotional in the meeting, but denying he had incited students to complain about the removal of the computers. Plaintiffs Statement ¶ 23; Khachikian Decl., Ex. 2A. Plaintiff alleges that President Dishman responded to his letter by telling him, "Everything is okay. Don't worry about it. You did good [sic]." Plaintiff's Statement ¶ 24.
Although the memo was from Dean Ambrose, he claims not to have authored it or to know who did. Baltaxe Decl., Ambrose Depo. at 42-44.
In August 1999, Plaintiff received his performance evaluation and a merit-based raise. Id. ¶¶ 26-27. DeVry's annual performance reviews rate the professors from I (lowest) to 6 (highest) in six categories.Id. ¶ 33. Each professor's overall rating, which determined the range of salary increases, is based upon a weighted average of the six ratings. Id. ¶¶ 27-28, 33. The exact amount of the raise that professors receive within the set range is within the subjective discretion of their supervisors. Id. ¶ 29. Plaintiff initially received a rating of 4.4, which qualified him for a raise ranging from 2.76% to 3.75%. Id. ¶ 30; Dishman Decl., Ex. E. Plaintiff received the largest salary raise available within the range: 3.75%. Plaintiff's Statement ¶ 30; Dishman Decl. ¶ 5. Plaintiff was informed that his salary would be raised from $25.6824 per hour to $26.6455 per hour. Dishman Decl., Ex. E.
Plaintiff lodged a grievance over the performance evaluation. Dishman Decl. ¶ 5. In response to Plaintiff's complaint, Associate Dean Susan McDonald increased Plaintiff's rating to 4.7. Id. ¶ 6. However, Plaintiff's new rating did not qualify him for a higher raise.Id. Plaintiff appealed his grievance to Dean Parsons and Dean Ambrose.Id. ¶ 7; Plaintiff's Statement ¶ 32. Dean Ambrose, who had supported Plaintiff on the computer issue and held him in "high regard," rejected Plaintiff's request for a higher performance evaluation. Kaufman Decl., Ambrose Depo. at 48-51; Plaintiff's Opposition at 6, 8, 10. Dean Ambrose felt that Plaintiff's review was "fair and accurate." Kaufman Decl., Ambrose Depo. at 50-51.
Plaintiff subsequently appealed his evaluation to President Dishman. Dishman Decl. ¶ 7; Plaintiff's Statement ¶ 32. Plaintiff argued that he should have received a rating of at least 4.75 and requested that his rating be increased to 5.2. Id. ¶ 41; Khachikian Decl. ¶ 21. President Dishman increased Plaintiff's rating to a 4.8, which qualified him for a salary increase between 3.76% and 4.25%. Plaintiff's Statement ¶ 28. President Dishman increased Plaintiff's raise to 3.76%. Id. ¶¶ 46-48. President Dishman informed Plaintiff in writing October 29, 1999 of his increased rating and his new hourly rate of $26.6481, an increase of 0.26 cents per hour. Id. Khachikian Decl., Ex. 3. On November 2, 1999, Plaintiff returned President Dishman's letter informing him of his new salary with a notation at the bottom stating, "[t]his has gone on for too long, and at this point, I agree with your decision just to end this grievance." Id., Ex. 3; Plaintiff's Statement ¶ 47.
Plaintiff repeatedly argues that he received a raise of only 0.01%, or 0.26 cents per hour. However, by his own admission, Plaintiff received a total raise of 3.76% in 1999. Plaintiffs Statement ¶ 46. Plaintiffs rating and raise were consistent with those he had received in previous years. In 1996, Plaintiff received a 4.2 rating and a 3.75% raise. Plaintiffs Statement ¶¶ 31, 42; Dishman Decl., Ex. H. In 1997, Plaintiff received a 4.0 rating and a 3.75% raise. Plaintiffs Statement ¶¶ 31, 42; Dishman Decl., Ex. G. In 1998, Plaintiff received a 4.9 rating and a 4.25% raise. Plaintiffs Statement ¶¶ 31, 42; Dishman Decl., Ex. F. Plaintiff never received a rating of 5 or higher during his tenure as a full professor. Id. ¶ 42.
On September 13, 1999, while his salary was still under review, Plaintiff authored a memo to President Dishman entitled "Harassment." In it, Plaintiff complained about (1) his salary (then under review), (2) the meeting of four months earlier involving the computers, and (3) Dean Parsons, whom he accused of having created a "Hostile Working Environment." Khachikian Decl. ¶ 24, Ex. 6. On November 1, 1999, Ralph Guilbert, Director of Human Resources, informed Plaintiff that his investigation revealed Plaintiff's conduct over the computer incident warranted the counseling memo. Khachikian Decl., Ex. 7. By this time, Plaintiff's rating had been increased to 4.8, and his salary raise had been increased to 3.76%. One day later, Plaintiff advised President Dishman that he agreed with her "just to end this grievance."
Nevertheless, ten days later, Plaintiff forwarded his harassment complaint to James Dugan, DeVry's Regional Vice President. Khachikian Decl. Ex. 8. Eleven days later, on November 23, 1999, Plaintiff filed another grievance complaining about his raise. Id. ¶ 23, Ex. 5. On November 29, 1999, President Dishman informed Plaintiff that his agreement to the new rating and raise gave him "no grounds to file another grievance on the same issue(s)." Id., Ex. 5. On December 13, 1999, Vice President Dugan sent Plaintiff a letter summarizing his investigation of the complaint and informing Plaintiff that there was "no basis" for his allegations of harassment. Id., Ex. 9.
Plaintiff alleges that he consulted with doctors because he had "severe physical and psychological symptoms." Khachikian Decl. ¶ 28. On March Id., 2000, Plaintiff began a leave of absence that he attributed to workplace stress. Plaintiffs Statement ¶ 55. On April 30, 2000, Plaintiff sent a letter to DeVry. Id. ¶ 57, Plaintiff's Opposition, Ex. 10. Plaintiffs letter reads:
Shame on you all for all your Lies, Fabrications, Coverups and for viciously punishing me by putting me thru mental torture or over a year just because I refused to a was unethical and against DeVry's Mission Statement. Also, what you people expected me to do (Using obsolete computers in class) could have resulted in a Class Action Law Suit for False Advertising. you [sic] seemed to have forgotten what we promise in our commercials. Instead of rewarding me for avoiding a potential disaster, you decided to punish me. I just cannot understand the logic behind your actions.
But I refused to cheat the students like you wanted me to at a great cost to my health. I just loved the students too much, specially the poor ones who put their faith in us to give them a chance for abetter life. I hope that the Whole Truth will someday be revealed for everyone to see.
Plaintiff also alleges that he visited Dean Ambrose on at least two occasions to discuss his concerns and condition. Id. ¶ 58, Khachikian Decl. ¶ 31.
Dean Parsons, whom Plaintiff had accused of harassing him, died May 6, 2000. Plaintiffs Statement ¶ 58. On November 20, 2000, after eight months of "stress leave" and approximately one and a half years after the faculty meeting over the computers, Plaintiff's attorney wrote a letter to DeVry, formally announcing Plaintiff's resignation and threatening a lawsuit. Id. ¶ 60. Plaintiff subsequently filed the instant action in Superior Court for the County of Los Angeles, alleging: 1) Defendant constructively terminated him in violation of Tameny v. Atlantic Richfield Co., 27 Cal.3d 167 (Cal. 1980) for "whistle blowing" to his students and supervisors that DeVry was using obsolete equipment in contravention of its advertised claims of using "industry standard PCs and electronics," which constituted false advertising in violation of California Business Professional Code § 17200; 2) Defendant constructively terminated him in violation of Tameny, supra, for refusing to engage in unlawful conduct by using obsolete equipment in contravention of its advertised claims of using "industry standard PCs and electronics," which constituted false advertising in violation of California Business Professional Code § 17200; and 3) Defendant retaliated against him in violation of California's Fair Employment and Housing Act for: a) "blowing the whistle" on DeVry's use of obsolete computers in contravention of its advertising; and b) refusing to commit fraud by using obsolete computers in contravention of DeVry's advertising. Defendant removed Plaintiff's action to this court July 6, 2001 and now moves for summary judgment.
III. SUMMARY JUDGMENT ANALYSIS A. Standard
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Summary judgment is "properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed 'to secure the just, speedy and inexpensive determination of every action.'"Celotex Corporation v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555 (1986) (quoting Fed.R.Civ.P. 1). Determinations of credibility, however, should be left to the trier of fact. See Hanon v. Dataproducts Corp., 976 F.2d 497, 507 (9th Cir. 1992). Accordingly, issues that turn on such determinations should not be resolved at the summary judgment stage. See id.; see also Palacios v. City of Oakland, 970 F. Supp. 732, 738 (N.D. Ca. 1997) ("In judging evidence at the summary judgment stage, the Court does not make credibility determinations or weigh conflicting evidence[.]")
In a trio of 1986 cases, the Supreme Court clarified the applicable standards for summary judgment. See Celotex, supra; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505 (1986); Matsushita Electrical Industry Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348 (1986). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. See Anderson, 477 U.S. at 256, 106 S.Ct. at 2514. The governing substantive law dictates whether a fact is material; if the fact may affect the outcome, it is material. See id. at 248, 2510. If the moving party seeks summary adjudication with respect to a claim or defense upon which it bears the burden of proof at trial, it must satisfy its burden with affirmative, admissible evidence. By contrast, when the non-moving party bears the burden of proving the claim or defense, the moving party can meet its burden by pointing out the absence of evidence submitted by the non-moving party. The moving party need not disprove the other party's case. See Celotex, 477 U.S. at 325, 106 S.Ct. at 2554.
If the moving party meets its initial burden, the "adverse party may not rest upon the mere allegations or denials of the adverse party's pleadings, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). When assessing whether the non-moving party has raised a genuine issue, the court must believe the evidence and draw all justifiable inferences in the non-movant's favor. Anderson, 477 U.S. at 255, 106 S.Ct. at 2513 (citingAdickes v. S.H. Kress Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 1608-09 (1970)). Nonetheless, "the mere existence of a scintilla of evidence" is insufficient to create a genuine issue of material fact. Id. at 252, 2512. As the Supreme Court explained in Matsushita,
[w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no "genuine issue for trial."Id., 475 U.S. at 586-87, 106 S.Ct. at 1356 (citations omitted).
To be admissible for purposes of summary judgment, declarations or affidavits must be based on personal knowledge, must set forth "such facts as would be admissible in evidence," and must show that the declarant or affiant is competent to testify concerning the facts at issue. Fed.R.Civ.P. 56(e). Declarations on information and belief are insufficient to establish a factual dispute for purposes of summary judgment. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).
B. Application
Claims 1 2: Constructive Discharge in Violation of Public Policy
Plaintiff cannot prevail on his claims for constructive discharge in violation of public policy because Plaintiff cannot establish that his resignation amounted to a constructive termination as a matter of law. A resignation is deemed a constructive discharge if "a reasonable person faced with the allegedly intolerable employer actions or conditions would have no reasonable alternative except to quit." Turner v. Anheuser-Busch. Inc., 7 Cal.4th 1238, 1248 (Cal. 1994) (citations omitted) (overruled on other grounds). "[T]he standard of intolerability is an objective one, viewed from the standpoint of the reasonable person. . . . [C]ourts generally hold that a constructive discharge occurs when an employer makes working conditions so difficult or unpleasant that a reasonable person in the employer's shoes would feel compelled to resign." Id. at 1248 n. 5 (citations omitted).
Plaintiff does not dispute that this standard governs his claims for constructive discharge.
Plaintiff proffers declarations from Dr. Barry A. Halote and Dr. Charles Weinstein claiming that Plaintiff suffers from depression and anxiety. Halote Decl. ¶ 4; Weinstein Decl. ¶ 3. However, Plaintiff's condition is not relevant to the issue whether working conditions were objectively intolerable that any reasonable individual would have resigned.
Plaintiff identifies no conditions that would have compelled a reasonable person to resign. Plaintiff alleges that Dean Parsons was abusive to him at a faculty meeting after Plaintiff requested new computers for his laboratory. Plaintiff admits that he, too, became emotional, was wrong to do so, and apologized to Dean Parsons after the incident. Khachikian Decl., Ex. 2A. Moreover, Dean Parsons provided Plaintiff with the computers he sought within days of the meeting. Plaintiff alleges that President Dishman accused him of inciting students to complain, and Plaintiff received a memo counseling him to behave in a "less emotional manner" and to avoid "using students to further [his] own agenda." While Plaintiff claims that the memo was included in his employment file, he alleges no threats of termination or suspension, and President Dishman thereafter assured him that "Everything [was] okay." Plaintiff received a rating of 4.7 and a 3.75% merit-based raise from Dean Ambrose, consistent with those he had received in previous years. Moreover, after Plaintiff complained that he should have received at least a 4.75 rating, President Dishman increased his rating to 4.8 and awarded him a 3.76% merit-based raise. Khachikian Decl. ¶ 21; Plaintiff's Statement ¶¶ 46-48. Plaintiff then filed a series of harassment complaints that were addressed by DeVry's Director of Human Resources and Regional Vice President, after which he took a leave of absence and subsequently resigned.
Plaintiff admits that no mention was made of the computer incident during his evaluation. Khachikian Decl. ¶ 19.
Plaintiff alleges that President Dishman had been "cold, hostile and extremely unfriendly" to him after he complained in 1996 about DeVry's grading policies. Khachikian Decl. ¶¶ 3-4. Plaintiff also alleges that Dean Parsons and President Dishman yelled at him in January 1999 for admittedly leaving some computers in an inappropriate place where they could have been stolen. Id. ¶ 7; Plaintiff's Statement ¶ 51. However, these incidents occurred prior to Plaintiff's alleged "whistle-blowing" over the obsolete computers and his refusal to engage in allegedly unlawful conduct by using obsolete computers in contravention of DeVry's advertising, which form the basis of Plaintiff's claims.
These facts do not evidence working conditions so intolerable as to compel any reasonable worker to resign. "An employee may not be unreasonably sensitive to his working environment. . . . Every job has its frustrations, challenges, and disappointments; these inhere in the nature of work. An employee is protected from . . . unreasonably harsh conditions, in excess of those faced by his co-workers. He is not, however, guaranteed a working environment free from stress." Turner, 7 Cal.4th at 1247 (citations omitted). Plaintiff predicates his claim largely upon the counseling memo and isolated incidents in which President Dishman allegedly became angry with him and Dean Parsons allegedly was abusive towards him. Assuming, arguendo, that President Dishman and Dean Parsons acted inappropriately, the California Supreme Court has held that isolated acts of misconduct generally are insufficient to support a claim of constructive termination. Id.
To the extent Plaintiff's constructive termination claim is based on his failure to receive a higher rating or salary increase, this forms no basis for a constructive termination claim. Even had Plaintiff been demoted or suffered a reduction in pay, this would not constitute constructive termination. Id. (Plaintiff's transfer, approximately a year after his whistle-blowing, and single negative performance evaluation insufficient to establish constructive termination); Cloud v. Casey, 76 Cal.App.4th 895, 902-05 (Cal.Ct.App. 1999) (Plaintiff, who was not promoted twice because of her gender, was not constructively discharged as a matter of law); Gibson v. Aro, 32 Cal.App.4th 1628, 1637 (Cal.Ct.App. 1995) (Plaintiff's demotion and reduction in pay did not constitute constructive termination). Here, of course, Plaintiff does not even claim to have been demoted. Indeed, he received a rating consistent with those of prior years, and an increase in salary of 3.76%, which was larger than his raises in two of the past three years. He admits that the salary increase applicable to a particular rating is within the discretion of his supervisor, and admits that the 3.76% raise he received fell within the range of the rating he was given. Plaintiffs Statement ¶¶ 29, 44.
If a demotion and reduction in pay are insufficient to establish a constructive termination, neither is Plaintiff's counseling memo some 17 months before his resignation.
To the extent Plaintiff relies on his generalized assertion that Dean Parsons and President Dishman maintained a "hostile attitude" towards him after the May 1999 meeting involving the computers, this too, fails as a matter of law to form the basis of a constructive termination claim. As for President Dishman, she assured Plaintiff everything was "OK" after the meeting, and ultimately increased his rating and salary beyond that set by his immediate supervisor. Plaintiff agreed to put the salary dispute to rest in November 1999, and cites no further instances of allegedly abusive conduct by President Dishman from that date forward.
As for Dean Parsons, despite his disagreement with Plaintiff over the need for new computers, he provided them to Plaintiff within days of the May 1999 meeting. Moreover, Plaintiff's belief that after the meeting, Dean Parsons was determined to terminate him is disproven by subsequent events. Khachikian Decl. ¶ 12. At no time during 1999 did Dean Parsons seek to terminate Plaintiff, and by early May 2000, Dean Parsons was dead. Rather than return from his self-imposed stress leave, Plaintiff remained on leave another six months, and then resigned. In short, Dean Parsons' conduct more than a year before Plaintiff's voluntary resignation cannot form the basis for Plaintiff's claim of constructive termination.
In sum, Plaintiff and Dean Parsons became emotional and yelled at each other during a faculty meeting in May 1999. President Dishman also became angry with Plaintiff for allegedly inciting students to complain, and Plaintiff received a memo counseling him to behave in a more professional manner. After his supervisors refused his demands for a larger raise, Plaintiff began an eight-month "stress leave," after which he resigned. His resignation came a year and a half after the faculty meeting at which Dean Parsons yelled at him and six months after Dean Parsons' death. As a matter of law, these facts do not evidence a constructive termination.
Claim 3: Retaliation in Violation of Public Policy
Plaintiff alleges that Defendant retaliated against him in violation of the California Fair Employment and Housing Act ("FEHA") for: 1) "blowing the whistle" on DeVry's use of obsolete computers in contravention of its advertising; and 2) refusing to commit fraud by using obsolete computers in contravention of DeVry's advertising. In order to establish a claim of retaliation, Plaintiff must show that: (1) he engaged in a protected activity, (2) he experienced an adverse employment action, and (3) a causal relationship links the two events. Nidds v. Schindler Elevator Corp., 113 F.3d 912, 919 (9th Cir. 1996); Wallis v. J.R. Simplot Co., 26 F.3d 885, 888-89 (9th Cir. 1994); Flait v. North Am. Watch Corp., 3 Cal.App.4th 467, 475-76 (Cal.Ct.App. 1992). If the plaintiff establishes a prima facie case, the defendant then has the burden of articulating a legitimate rationale for the action. If the defendant produces evidence to support such a rationale, the burden shifts back to the plaintiff to show that the rationale is pretextual. See Nidds, supra; Wallis, supra.
Defendant argues that Plaintiff's retaliation claim is barred by FEHA's one-year statute limitations. Plaintiffs resignation, allegedly a constructive termination, occurred November 20, 2000 and Plaintiff filed his complaint on May 17, 2001.
Assuming Plaintiff's complaint over the computers qualifies as a protected activity, Plaintiff cannot establish that he suffered an adverse employment action. In order to prevail on a retaliation claim under the Fair Employment and Housing Act, California courts have held that a plaintiff must establish that there was a materially adverse change in the terms of his employment or some other employment-related injury. See Thomas v. Department of Corr., 77 Cal.App.4th 507, 510-12 (Cal.Ct.App. 2000), cited with approval in Grimes v. West Group Co., No. 00-15685, 2001 WL 1507270, at *1 (9th Cir. Nov. 27, 2001); Crown v. Wal-Mart Stores, Inc., No. 99-56791, 2001 WL 429235, at *2 (9th Cir. Apr. 26, 2001); cf. Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir. 2000) ("[W]e have held that only non-trivial employment actions that would deter reasonable employees from complaining about Title VII violations will constitute actionable retaliation.") (citing Ray v. Henderson, 217 F.3d 1234, 1243 (9th Cir. 2000)). The employment action must be both detrimental and substantial. See id.
See also Pollock v. University of S. Cal., No. B 145203, 2001 WL 1513870, at *6 (Cal.Ct.App. Nov. 29, 2001); Mathurin v. Dewey Servs., Inc., No. B146525, 2001 WL 1468938, at *8-9 (Cal.Ct.App. Nov. 19, 2001); Blakemore v. California Dep't of Highway Patrol; Nos. D036346, GIC 743188, 2001 WL 1194719, at *3 n. 7 (Cal.Ct.App. Oct. 5, 2001).
In the instant case, there are no facts or allegations that would establish a material change in the conditions of Plaintiff's employment. The mere fact that President Dishman and Dean Parsons may have offended Plaintiff does not establish an adverse employment action. See id. The counseling memo Plaintiff received had no discernable impact upon his employment, as it merely counseled Plaintiff to conduct himself in a "less emotional manner" and to voice his disagreements to management "without using students to further [his] own agenda." Plaintiffs Opposition, Ex. 2. Moreover, Plaintiff cannot establish that his resignation was an adverse employment action because, as discussed above, it was not a constructive termination as a matter of law.
Plaintiffs argument that his merit-based raise constituted an adverse employment action is meritless. Plaintiff did not receive a 0.01% raise as he claims. Instead, Plaintiff received a 3.75% merit-based raise which was increased to 3.76% in response to his demand for a higher rating. The raise Plaintiff eventually received was within the range designated for employees who received his rating and was consistent with raises Plaintiff had received over the past few years. Plaintiff also concedes that his supervisors had subjective discretion to determine his raise within the appropriate range. While Plaintiff complains that he should have received a larger raise, the fact that Plaintiff's raise was not as large as he had hoped does not constitute an adverse employment action.See Thomas, 77 Cal.App.4th at 510-11.
IV. CONCLUSION
Based upon the foregoing, Defendant's motion for summary judgment is GRANTED.
IT IS SO ORDERED.