KAREM MA AL CHOKHACHI v. CALIFORNIA DEPARTMENT OF TRANSPORTATION (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

INTRODUCTION

Plaintiff and appellant A. Karem Ma Al-Chokhachi (plaintiff) appeals a summary judgment in favor of his employer, the California Department of Transportation (Caltrans), and two of its supervisory employees, Raja Jabra Mitwasi and Frank Lin Quon (collectively, defendants), on plaintiff's claims for employment discrimination, harassment and retaliation under the Fair Employment and Housing Act (FEHA) (Gov.Code, § 12940 et seq.),¹ and for defamation.

The trial court properly granted summary judgment on plaintiff's discrimination and retaliation claims because plaintiff suffered no adverse employment action, an essential element of both claims.   Moreover, there was an insufficient showing of discrimination and retaliation.   Summary judgment on plaintiff's harassment claim was proper because there was no showing that the alleged acts of harassment were causally related to plaintiff's national origin or religion.   Finally, summary judgment on plaintiff's defamation claim also was appropriate.   One of the alleged defamatory statements was a statement of opinion;  others were privileged pursuant to Civil Code section 47, subdivision (c), and plaintiff made an insufficient showing of malice to defeat the privilege.   We therefore affirm the judgment.

BACKGROUND2

A. Factual Background

Plaintiff is an Iraqi-American Muslim.   Plaintiff declared that he was persecuted in Iraq because he opposed the regime of Saddam Hussein.   He escaped Iraq and emigrated to the United States in 1982, and he became a naturalized citizen in the early 1990s.   In 1991, plaintiff began working for Caltrans as a transportation engineer in its District 7 office, located in Los Angeles.

In 1994, plaintiff was assigned to work with Sameer Haddadeen, a Jordanian-American Christian.³  Plaintiff declared that, while they were working together, Haddadeen made statements supportive of Saddam Hussein and made disparaging remarks about Iraqis and Muslims.   Plaintiff complained to his superiors and was granted a transfer to another work unit.   Plaintiff declared that, when Haddadeen learned of the transfer, he said, “You betrayed me and I'll show you one day.”

Twelve years later, in 2006, plaintiff was working in the District 7 Office of Traffic Investigation (OTI).   His primary function was conducting Table C investigations, which involved examining stretches of highway with high incidents of traffic accidents to determine whether any corrective action was necessary.   Plaintiff worked in a unit with six other traffic engineers under the immediate supervision of Luu Nguyen.   Unit supervisors such as Nguyen were referred to as “seniors.”

In September 2006, Haddadeen was appointed as the OTI office chief and was charged with clearing a backlog of Table C investigations and remediating concerns about employee attendance and productivity.   Haddadeen supervised eight or more seniors and their corresponding units, comprising (according to plaintiff) approximately 100 people.   After Haddadeen's appointment, plaintiff reported directly to Nguyen;  Nguyen reported to Haddadeen;  Haddadeen reported to defendant Quon;  defendant Quon reported to defendant Mitwasi.   Defendant Mitwasi reported to the director of District 7, who was not a party to the case.

After Haddadeen became office chief at OTI, he walked the office floor in the morning and afternoon to monitor employee attendance.   When he saw that an employee was absent from his or her workstation, he informed the missing employee's senior by email and asked the senior to ensure that the employee's timesheet accurately reflected the employee's attendance.   Haddadeen's management style proved to be very unpopular, and eight of the seniors under Haddadeen's supervision submitted a written complaint about Haddadeen to the District 7 director.

There were no incidents between plaintiff and Haddadeen between September 2006 and January 2007.   Beginning in January 2007, however, Haddadeen began to email Nguyen to report that plaintiff and other employees in Nguyen's work unit had not been at their desks when Haddadeen had checked.   Haddadeen sent emails stating that plaintiff had not been at his desk when Haddadeen had checked on January 3, 17 and 19.   In the January 19 email, Haddadeen stated that plaintiff and another employee “have been arriving hours late and leaving work early every day and this conduct can not [sic ] be tolerated.”   Plaintiff declared that Haddadeen's assertions were not true.   On January 22, 2007, plaintiff sent an email to Nguyen to dispute Haddadeen's assertions and to complain that he had suffered a “big humiliation” because Haddadeen had misspelled plaintiff's name as “Kareem El” rather than “A Karem Al-Chokhachi.”

Plaintiff declared that, after his January 22 email to Nguyen, Haddadeen's “targeting” increased in that Haddadeen continued to “wrongly accus[e]” plaintiff of not being at his desk.   Plaintiff did not identify or document any particular instances, however.   Plaintiff further declared that he “knew that [Haddadeen] was doing all of these things because he hated me because I am Iraqi and a Muslim,” but he identified no facts to indicate that such “knowledge” was anything more than an assumption on plaintiff's part.

Plaintiff further declared that, although Haddadeen “hated” him and thought Iraqi Mulsims were the “lowest of the low,” Haddadeen attempted to recruit plaintiff to “spy” on his coworkers in exchange for preferential treatment.   Plaintiff did not respond to Haddadeen's offer.   Thereafter, plaintiff declared, Haddadeen created a hostile work environment by, inter alia, saying unspecified “derogatory things” about plaintiff to plaintiff's coworkers;  falsely accusing plaintiff of arriving late or leaving early;  “insinuating” that plaintiff was lying;  accusing plaintiff of unprofessional and discourteous conduct;  instructing Nguyen to charge fictitious absences against plaintiff's hours;  withholding approval of a leave of absence;  assigning more work to plaintiff than to his peers;  denying plaintiff access to computer network resources necessary for plaintiff to do his job;  and ordering plaintiff not to discuss his complaints with Caltrans management or the District 7 Office of Equal Employment Opportunity (EEO).

Plaintiff complained about Haddadeen to defendant Mitwasi.   Mitwasi advised plaintiff not to file a formal complaint and said that he would talk to Haddadeen to get him to stop.   Plaintiff sent an email confirmation of his complaint to Mitwasi and sent a copy to defendant Quon and to Marian Woo, the manager of EEO. According to plaintiff, no one followed up on his email.   Plaintiff thereafter wrote a letter to Nguyen and an email to Marian Woo complaining that he had been “target[ed]” by Haddadeen.   According to plaintiff, again no one followed up on plaintiff's complaints.   Plaintiff therefore filed a formal complaint with EEO, and then, under FEHA, with the Department of Fair Employment and Housing (DFEHA).

In late July 2007, plaintiff submitted to Nguyen a request for a one year leave of absence to commence on September 1, 2007, in order to care for his family members in Iraq. Nguyen approved the request on August 9, 2007.   Haddadeen and Quon approved the request on August 28, 2007.   According to plaintiff, the approvals did not occur until it was too late, given plaintiff's intended departure date.   Plaintiff did not travel to Iraq. Plaintiff declared that the approvals by Haddadeen and Quon were, in any event, meaningless because the request had not also been approved by Mitwasi.

Plaintiff declared that, in December 2007, the cursor on his computer started moving by itself and files on his computer were opened.   At Nguyen's suggestion, plaintiff shut the computer down.   A similar incident occurred in March 2008.

In early March 2008, Haddadeen asked plaintiff where a fellow employee was.   Plaintiff responded that he did not know.   According to plaintiff, Haddadeen said in Arabic, “What kind of idiots like you are working in this office?”   Another employee was within earshot, but plaintiff did not know whether the other employee understood Arabic.   Plaintiff declared that Haddadeen later came back to his cubicle and said, “I will make you pay for it.”

In October 2008-approximately seven months after this lawsuit was filed-OTI was reorganized and plaintiff was reassigned.   Plaintiff's new workstation was, plaintiff declared, next to another traffic engineer who had a large rear-view mirror on top of his computer monitor, positioned so that it reflected plaintiff's work area.   Plaintiff “immediately complained” to his new supervisor that Haddadeen was having him spied upon.   Plaintiff also complained about the mirror to Mitwasi, but nothing was done.   Plaintiff declared that his computer does not work well but Haddadeen has refused to approve a new one, and that Hadaddeen continues to disparage him.

B. Procedural Background

Plaintiff filed this action on March 6, 2008.   In his operative second amended complaint, plaintiff alleged against Caltrans causes of action for employment discrimination, retaliation, and failure to prevent discrimination and harassment.   Plaintiff alleged against all defendants and Haddadeen causes of action for harassment and for defamation.   The trial court granted defendants' motion for summary judgment on all causes of action and entered judgment for defendants.⁴  Plaintiff timely appealed.

DISCUSSION

A. Evidentiary Objections

Plaintiff and defendants each submitted written objections to evidence submitted by the opposing party on the summary judgment motion.   As to plaintiff's objections, the trial court put a “D” next to each objection, indicating that all of the evidentiary objections were denied.   The trial court did not make any notations on defendants' written objections, but in response to a request by defendants' attorney for a written ruling on the evidentiary objections, the trial court stated from the bench, “The objections were all denied.”

On appeal, plaintiff complains that the trial court “did not rule” on defendant's evidentiary objections.   This is incorrect-as noted, the trial court's statement from the bench that “[t]he objections were all denied” was a response to a request by defendant's counsel for a written ruling on the evidentiary objections.   In any event, even if the trial court had failed to rule on defendant's objections, plaintiff fails to explain how he was prejudiced.   At the summary judgment stage, evidentiary objections not ruled upon are deemed waived.  (Code Civ. Proc., § 437c, subds. (b)(5), (d);  Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 1186-1187, fn. 1, overruled on another ground in Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853, fn.   19 (Aguilar ).)   We fail to see how plaintiff credibly can complain that he was prejudiced by the trial court's consideration of plaintiff's own evidence.

Plaintiff also asserts that the trial court's ruling denying all of plaintiff's objections did “not constitute a ruling sufficient to deny the objections.”   But plaintiff fails to explain why this is so.   The trial court expressly ruled on and denied each of plaintiff's written objections.   Accordingly, Vineyard Springs Estates v. Superior Court (2004) 120 Cal.App.4th 633 and Laird v. Capital Cities/ABC, Inc. (1998) 68 Cal.App.4th 727, upon which plaintiff relies, are inapposite.   Plaintiff does not identify any specific ruling by the trial court that he claims was erroneous, nor has plaintiff attempted to demonstrate how the denial of any particular objection constituted an abuse of the trial court's discretion.   Plaintiff has thus forfeited any challenge to the trial court's rulings.  (See, e.g., Cristler v. Express Messenger Systems, Inc. (2009) 171 Cal.App.4th 72, 89-90;  Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1182, fn. 5.)

Even if we were to consider the merits of plaintiff's argument, we have reviewed each of plaintiff's 24 written objections and found that each, on the grounds stated, lacked merit.   Plaintiff has failed to demonstrate error with respect to the trial court's evidentiary objections.

B. Standard of Review and Burdens of Proof

We review the trial court's grant of summary judgment de novo.  (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 (Guz ).)   We view the evidence submitted on the motion most favorably to plaintiff, liberally construing his evidentiary submission while strictly scrutinizing defendants' showing.   We resolve any evidentiary doubts or ambiguities in plaintiffs' favor.  (Koebke v. Bernardo Heights Country Club (2005) 36 Cal.4th 824, 832;  Wiener v. Southcoast Childcare Centers, Inc., supra, 32 Cal.4th at p. 1142;  Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767.)

Generally, “the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.”  (Aguilar, supra, 25 Cal.4th at p. 850, fn. omitted.)  “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.”  (Ibid., fn.omitted.)  “All that the defendant need do is to ‘show[ ] that one or more elements of the cause of action ․ cannot be established.’ ”  (Id. at p. 853.)  “[H]ow the parties moving for, and opposing, summary judgment may each carry their burden of persuasion and/or production depends on which would bear what burden of proof at trial.”  (Id. at p. 851.)

With respect to discrimination and retaliation claims, California allocates the burden of proof at trial according to the three-stage burden-shifting test established by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 (McDonnell Douglas ).  (Guz, supra, 24 Cal.4th at p. 354.)  “This so-called McDonnell Douglas test reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially.   Thus, by successive steps of increasingly narrow focus, the test allows discrimination to be inferred from facts that create a reasonable likelihood of bias and are not satisfactorily explained.”  (Ibid.) “At trial, the McDonnell Douglas test places on the plaintiff the initial burden to establish a prima facie case of discrimination.   This step is designed to eliminate at the outset the most patently meritless claims, as where the plaintiff is not a member of the protected class or was clearly unqualified, or where the job he sought was withdrawn and never filled.  [Citations.]  While the plaintiff's prima facie burden is ‘not onerous' [citation], he must at least show ‘ “actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were ‘based on a [prohibited] discriminatory criterion․’  [Citation].”  [Citation.]'  [Citations.]”  (Id. at pp. 354-355.)   If the plaintiff establishes a prima facie case, then a presumption of discrimination arises, and the burden shifts to the employer to rebut the presumption by producing admissible evidence showing that the employer took its actions for a legitimate, nondiscriminatory reason.  (Id. at pp. 355-356.)   If the employer meets that burden, then the presumption of discrimination disappears, and the plaintiff must show that the employer's proffered reasons were mere pretexts for discrimination.  (Id. at p. 356.)

In most discrimination and retaliation cases, as here, the defendant-employer is the moving party at the summary judgment stage.   In such circumstances, California courts have reconciled the general summary judgment standard set forth in Aguilar, supra, 25 Cal.4th at page 850-which places the initial burden on the employer to establish that there is no triable issue of material fact-with the McDonnell Douglas test.   Accordingly, on a defense summary judgment motion on a disparate-treatment ⁵ discrimination claim, “the employer satisfies its burden as moving party if it presents evidence of such nondiscriminatory reasons that would permit a trier of fact to find, more likely than not, that they were the basis for the [adverse employment action].  [Citations.]   To defeat the motion, the employee then must adduce or point to evidence raising a triable issue, that would permit a trier of fact to find by a preponderance [of the evidence] that intentional discrimination occurred.  [Citations.]”  (Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th 1088, 1097-1098;  accord, Scotch v. Art Institute of California-Orange County, Inc. (2009) 173 Cal.App.4th 986, 1005 (Scotch );  see also Jones v. Department of Corrections & Rehabilitation (2007) 152 Cal.App.4th 1367, 1379-1380 (Jones );  see generally Weil et al., Cal. Practice Guide:  Civil Procedure Before Trial (The Rutter Group 2009) ¶¶ 10:268.5 to 10:268.35, pp. 10-104 to 10-107 (Civil Procedure).)

C. Discrimination and Retaliation Claims

1. No Adverse Employment Action

Plaintiff alleged a claim for disparate-treatment discrimination based on his “race, national origin, ancestry and religion.”  Section 12940, subdivision (a) makes it an unlawful employment practice “[f]or an employer, because of the race, religious creed, ․ national origin, [or] ancestry ․ of any person, ․ to discriminate against the person in compensation or in terms, conditions, or privileges of employment.”   The elements of a disparate-treatment discrimination claim are:  (1) the plaintiff was a member of a protected class;  (2) the plaintiff suffered an adverse employment action, such as termination, demotion, or denial of an available job;  (3) discriminatory animus by the employer against members of the protected class;  (4) a causal link between the adverse employment action and the employer's discriminatory animus;  and (5) damage.  (Scotch, supra, 173 Cal.App.4th at p. 1004;  Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 992;  Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 713;  Jones, supra, 152 Cal.App.4th at p. 1379.)

Plaintiff also alleged that Caltrans unlawfully retaliated against him for complaining about Haddadeen's alleged harassment.  Section 12940, subdivision (h) makes it 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.”   The elements of a retaliation claim are:  (1) the employee engaged in a protected activity;  (2) the employee suffered an adverse employment action;  (3) retaliatory animus on the part of the employer;  (4) a causal link between the retaliatory animus and the adverse employment action;  and (5) damage.  (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz );  see also Scotch, supra, 173 Cal.App.4th at p. 1020;  Nadaf-Rahrov v. Nieman Marcus Group, Inc., supra, 166 Cal.App.4th at p. 989;  Mamou v. Trendwest Resorts, Inc., supra, 165 Cal.App.4th at p. 713;  Steele v. Youthful Offender Parole Bd. (2008) 162 Cal.App.4th 1241, 1252;  Jones, supra, 152 Cal.App.4th at p. 1380.)

Accordingly, an essential element of both the discrimination and retaliation claims is that plaintiff suffered an adverse employment action.   The nature of the adverse employment action required is the same under either theory.   (Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1168;  Yanowitz, supra, 36 Cal.4th at pp. 1050-1051.)   In this case, the trial court ruled that plaintiff failed to raise a triable issue as to whether he had suffered an adverse employment action, and specifically, that the evidence cited by plaintiff in his response to defendants' separate statement was insufficient to dispute defendants' evidentiary showing.   We agree with the trial court's rulings.

To constitute an adverse employment action, the employer's action must “materially affect the terms and conditions of employment [citation]․”  (Yanowitz, supra, 36 Cal.4th at p. 1036;  accord, Jones v. Lodge at Torrey Pines Partnership, supra, 42 Cal.4th at p. 1168.)   Adverse employment actions include “not only so-called ‘ultimate employment actions' such as termination or demotion, but also the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee's job performance or opportunity for advancement in his or her career.”   (Yanowitz, supra, 36 Cal.4th at p. 1054.)   We consider the totality of the circumstances and the workplace context of the claim in determining whether a particular action constitutes an adverse employment action.  (Id. at pp. 1052-1053.)

Consistent with this rule, “[m]inor or relatively trivial adverse actions or conduct by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment and are not actionable.”  (Yanowitz, supra, 36 Cal.4th at p. 1054.)  “ ‘ “[W]orkplaces are rarely idyllic retreats, and the mere fact that an employee is displeased by an employer's act or omission does not elevate that act or omission to the level of a materially adverse employment action.”   [Citation.]  If every minor change in working conditions or trivial action were a materially adverse action then any “action that an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit.”  [Citation.]’  [Citation.]”  (McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 386.)  “ ‘Requiring an employee to prove a substantial adverse job effect “guards against both ‘judicial micromanagement of business practices' [citation] and frivolous suits over insignificant slights.”  [Citation.]  Absent this threshold showing, courts will be thrust into the role of personnel officers, becoming entangled in every conceivable form of employee job dissatisfaction.’ ”  (Id. at p. 387.)   Nevertheless, “the phrase ‘terms, conditions, or privileges' of employment must be interpreted liberally and with a reasonable appreciation of the realities of the workplace in order to afford employees the appropriate and generous protection against employment discrimination that the FEHA was intended to provide.”  (Yanowitz, supra, 36 Cal.4th at p. 1054.)

In this case, defendants submitted evidence in support of their summary judgment motion that Caltrans had instituted a progressive discipline system, pursuant to which an employee who violated state employment policies would first be given a verbal warning;  then a written counseling memo;  then subjected to disciplinary action, such as suspension;  and finally, terminated.   Defendants submitted further evidence tending to show that plaintiff would be unable to prove that he had been disciplined or that he had lost any pay as a result of Haddadeen's allegedly discriminatory or harassing conduct.   The trial court properly concluded that defendants carried their burden as the moving party to establish that plaintiff had not been subjected to any adverse employment action.   Indeed, in his opening brief, plaintiff concedes that “[h]e received no warnings, disciplinary actions, performance evaluation[s], derogatory notices or write ups from Defendants.”

Plaintiff purported to dispute several of these facts, which were denominated Fact Nos. 65 through 67.   But, in his response to defendant's separate statement, plaintiff cited no evidence to raise a triable issue-his “disputes” were based solely on his assertions that the deposition testimony offered by defendants had been “taken out of context, misstated, and misquoted.”   As the trial court ruled, plaintiff's “disputes” were insufficient to defeat summary judgment.   Specifically:

 Defendant's Fact No. 65 stated that plaintiff's senior, Nguyen, “ha[d] only had to verbally counsel PLAINTIFF.”   Plaintiff purported to “dispute” this fact by stating, in relevant part, “NGUYEN said that he verbally counseled all of his staff.   Not for the purpose of discipline, but for the purpose of improving their performance, improving their knowledge, and improving their skill.   NGUYEN said that the duty of the supervisor is to provide [sic ] and to support the employee.”   Plaintiff's characterization of Nguyen's deposition testimony is accurate, but it does not raise a triable issue with respect to whether plaintiff suffered an adverse employment action.   To the contrary, it supports defendant's assertion that plaintiff had not been disciplined as the result of the Hadaddeen's allegedly discriminatory and retaliatory conduct.

 Defendant's Fact No. 66 stated that Nguyen “would be aware if anyone else disciplined PLAINTIFF.”   Plaintiff purported to dispute this fact, stating that Nguyen had testified that, “as Plaintiff's supervisor, any progressive discipline must come from him, and if somebody bypassed NGUYEN and disciplined his staff, there must be something wrong.”   Neither characterization of the cited testimony is entirely accurate, but the only reasonable inference from Nguyen's actual testimony was that plaintiff had not been subjected to any disciplinary action.   Nguyen was asked whether he was aware of any discipline against plaintiff relating to his attendance from January 2007 through October 2008.   Nguyen answered, “No.” He then explained, in effect, that in the normal course of business, he would be the person to discipline plaintiff and that, if plaintiff had been disciplined by some else, it would indicate that “there must be something wrong.”   The evidence cited by plaintiff thus does not support an inference that plaintiff suffered an adverse employment action.

 Defendant's Fact No. 67 stated that plaintiff could not “recall if he had lost any pay due to Haddadeen's observations of plaintiff's absence or tardiness.”   Plaintiff purported to dispute this fact, saying, “Plaintiff said that he cannot recall if he ever had disciplinary action such as suspension without pay for violating workplace rules.”   Again, plaintiff's characterization of his testimony is accurate, but his testimony does not raise a triable issue with respect to whether he suffered an adverse employment action.   To the contrary, plaintiff's testimony tends to support the conclusion that he suffered no disciplinary action for violations of workplace rules, such as unexcused absences or tardiness.⁶

On the basis of the parties' separate statements, therefore, the trial court correctly ruled that defendants had met their initial burden to produce evidence establishing that plaintiff had suffered no adverse employment action, and that the evidence cited by plaintiff in response to defendants' Fact Nos. 65 through 67 failed to raise a triable issue.

In his opening brief, plaintiff argues that he suffered adverse employment action because (1) he was “accused of fraudulently reporting work hours and stealing money from the State”;  (2) he was “assigned more work than co-workers”;  (3) he was “constantly under surveillance”;  (4) he was “threatened ․ with severe disciplinary action as a result of his complaints” against Hadaddeen;  and (5) Haddadeen “conspired to prevent [plaintiff] from going to Iraq by intentionally misinforming him regarding the required process.”   Plaintiff forfeited any such arguments, however, because he failed to cite any authority or to provide any reasoned legal analysis to support the propositions that (1) the evidence plaintiff relied upon supported his negative characterizations of these events, and (2) such events, individually or collectively, constituted adverse employment action.⁷  (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.)

Even if we were to address the merits of plaintiff's arguments, plaintiff failed to produce evidence sufficient to raise a triable issue.   In his opening brief, plaintiff cites only to his own declaration as evidentiary support for his assertions.   But once a moving party has met its initial burden to produce evidence that a claim lacks merit, an opposing party can raise a triable issue only by offering substantial, admissible evidence in response.  (Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 525;  Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163;  Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1004-1005.)  “ ‘An issue of fact can only be created by a conflict of evidence.   It is not created by “speculation, conjecture, imagination or guess work.”  [Citation.]  Further, an issue of fact is not raised by “cryptic, broadly phrased, and conclusory assertions” [citation], or mere possibilities [citation].  “Thus, while the court in determining a motion for summary judgment does not ‘try’ the case, the court is bound to consider the competency of the evidence presented.”  [Citation.]'  [Citation.]”   (Brown v. Ransweiler, supra, 171 Cal.App.4th at pp. 525-526.)   Accordingly, “it is well established that a plaintiff's ‘suspicions of improper motives ․ primarily based on conjecture and speculation’ are not sufficient to raise a triable issue of fact to withstand summary judgment.”  (Kerr v. Rose (1990) 216 Cal.App.3d 1551, 1563-1564;  see also Sangster v. Paetkau, supra, 68 Cal.App.4th at p. 163 [“evidence that gives rise to no more than mere speculation cannot be regarded as substantial, and is insufficient to establish a triable issue of material fact”];  Civil Procedure, supra, ¶ 10:268.16 at p. 10-106.)

 Plaintiff asserts that he was “accused of fraudulently reporting work hours and stealing money from the State.”   But the cited evidence shows only that Haddadeen sent emails to plaintiff's senior, stating that Haddadeen had seen that plaintiff and other employees were not at their desks at specified times and reminding the senior to ensure that the employees recorded their time accurately.   There are no accusations that plaintiff fraudulently reported work hours or stole State funds.   Significantly, there is also no evidence that plaintiff was disciplined or otherwise penalized for the alleged absenteeism or tardiness noted by Haddadeem.   Plaintiff's statements regarding what Haddadeen told other people outside of plaintiff's presence or what plaintiff's coworkers witnessed are neither competent nor substantial evidence.

 Plaintiff asserts that he was “assigned more work than co-workers,” citing his declaration that he was required by Haddadeen to complete six Table C projects per month, whereas “other area engineers” were required to complete only two or three Table C projects per month.   Even if we assume plaintiff's declaration constitutes substantial evidence that the work was assigned to plaintiff by Haddadeen (rather than, for example, by plaintiff's direct supervisor, Nguyen), it does not constitute substantial evidence that plaintiff was assigned “more work” than his peers.   Plaintiff declared only that “other area engineers” were assigned only two or three projects.   He did not declare that all other engineers were assigned only two or three projects, or that OTI had a general policy that two or three projects per month constituted a normal workload.   It may be some engineers were assigned more projects, and others were assigned fewer, depending on the time and effort that management anticipated would be required to complete the project in a timely fashion.   It may also be that some engineers were assigned other types of work.   There is no evidence that plaintiff worked longer hours than his peers, or that he was penalized in any way for failing to complete his work.   Accordingly, plaintiff's assertion that he was assigned “more work” is a mere conclusion, and does not suffice to raise a triable issue.

 Plaintiff asserts that he was “constantly under surveillance.”   The cited evidence does not support such a conclusion.

 Plaintiff asserts that he was “threatened ․ with severe disciplinary action as a result of his complaints” against Haddadeen.   The portion of plaintiff's declaration cited quotes an email dated August 27, 2008 from Haddadeen to plaintiff.   But that email cannot reasonably be read to threaten plaintiff with disciplinary action for making complaints.   On the morning of August 27, 2008, plaintiff sent an email addressed to defendant Quon, with a copy to Haddadeen.   In his email (the text of which is an exhibit to plaintiff's declaration), plaintiff complained to Quon that Haddadeen had been accusing him of not being at his desk and stated that plaintiff was “tired of this Pure Harassment․”  Plaintiff then stated, “[T]oday is a clear example of the lies and false accusation by [Haddadeen].”  (Emphasis added.)   Plaintiff wrote that his senior had informed him that Haddadeen had sent an email “telling him [the senior] that He [Haddadeen] came to see me by 7:30 AM or 8:30 AM I am not sure but this absulitly [sic ] [is] not true.   I arrived to my cubicle this morning around 7:12 AM and did not leave this office untill [sic ] now [10:32 AM]. So iether [sic ] [Haddadeen] has a vision problem or [he is] not saying the truth.”  (Emphasis added.)   Haddadeen responded to plaintiff's email as follows:  “At about 8:30 a.m ․ this morning I stopped by to talk to you about your request for Leave Without Pay. You were not at your workstation.   However, if you disagree with my observation, you need to understand that there are proper and professional means of expressing and/or elevating your concerns in the workplace.   Your use of words such as ‘lies' and ‘false’ to describe my observation is unprofessional, improper and discourteous toward me, and will not be tolerated by this Department.”   (Emphasis added.)   Haddadeen thus was not responding to the fact that plaintiff had complained, but to the “unprofessional, improper and discourteous” manner in which plaintiff had complained.   He was within his rights to do so-and considering that plaintiff (Haddadeen's subordinate) had sent an email directly to Quon (Haddadeen's superior) accusing Haddadeen of dishonesty and professional malfeasance, one might view Haddadeen's response as restrained.   In any event, Haddadeen's email contains no “threat” of “severe disciplinary action” and, as discussed, there is no evidence that any disciplinary action was taken.

 Plaintiff asserts that Haddadeen “conspired to prevent [plaintiff] from going to Iraq by intentionally misinforming him regarding the required process.”   But there is no evidence that Haddadeen provided plaintiff with any information-correct or incorrect-regarding the procedure for obtaining approval for a leave of absence.   Rather, plaintiff pled and declared that Haddadeen delayed approval of plaintiff's request.   The evidence establishes, however, that Haddadeen approved plaintiff's request prior to the beginning of plaintiff's requested leave, and plaintiff submitted no evidence that the timing of Haddadeen's approval violated any Caltrans policy or differed in any respect from the normal course of business.   Plaintiff's assertion that Haddadeen, in effect, knew that his approval of plaintiff's leave was a sham because defendant Mitwasi had not approved it is mere speculation-there is no evidence that Haddadeen subjectively was aware that Mitwasi's approval was required, nor is there evidence that Haddadeen was responsible for obtaining Mitwasi's approval of plaintiff's request for a leave of absence.

There is no indication that Haddadeen publicly criticized plaintiff or fueled any resentment against him, or that he solicited negative feedback about plaintiff, or that he materially inhibited plaintiff's performance of his duties or impaired plaintiff's effectiveness.   Offensive utterances, social slights, acts that leave an employee feeling humiliated, “nitpicking” an employee's performance, criticism relating to an employee's job duties-none of these constitute adverse employment actions.  (See Yanowitz, supra, 36 Cal.4th at 1054-1055;  see generally Chin, et al., California Practice Guide:  Employment Litigation (The Rutter Group 2010) ¶¶ 7:795 to 795.5, pp. 7-130 to 7-131 (Chin).)

We conclude that plaintiff failed to raise a triable issue with respect to whether he suffered an adverse employment action.   Because defendants established that plaintiff could not prevail on an essential element of his discrimination and retaliation claims, the trial court properly granted summary judgment on those claims.

2. No Discrimination

Even if plaintiff had set forth a prima facie case of adverse employment action, he has not shown the necessary nexus between any inappropriate statements and the decisional process.   A decisionmaker's bigoted remarks “may tend to show discriminatory intent” (Chin, supra, § 7:360 at p. 7-66), but “a nexus is required between the biased person's ‘influence’ and the ultimate employment decision.”  (Id. at ¶ 7:377 at p. 7-69.)   The evidence of a biased motivation should be “substantial.”  (Id. at ¶ 7:452 at p. 7-84.1.)

Here, in 1994, Haddadeen made disparaging remarks about Muslims.   He also disagreed with plaintiff about the leadership of Iraq-which is not a basis for a discrimination action.   There is no indication that Haddadeen's 1994 remarks had any impact on plaintiff's job.   After Haddadeen made his remarks, plaintiff obtained a transfer.   It was because of the transfer that Haddadeen allegedly threatened to “show [plaintiff] one day.”   There is nothing to suggest that Haddadeen's activities in 2006 and thereafter of which plaintiff complains had anything to do with religion, nationality, or “race” (Arab is not a race, and Haddadeen was Arabic).   Haddadeen's actions might have been prompted by other issues between plaintiff and Haddadeen, but there is no indication they were prompted by prohibited discrimination.   There is nothing to suggest that either Mitwasi (also Arabic) or Quon failed to act on plaintiff's complaints because of a discriminatory intent.   Mitwasi's statement that Arabs should stick together does not remotely show he had any discriminatory intent.   This so-called “me too” evidence of employer discrimination against similarly situated individuals other than plaintiff (Chin, supra, § 7:394.1, at pp. 7-74 to 7-74.1) is inapplicable because there is no showing of any discrimination against any other Muslims or Iraqis.   Indeed, there were complaints by many of the employees about Haddadeen and his surveillance activities, with no indication that Haddadeen's activities had any religious or ethnic component.   Thus, plaintiff has not set forth a prima facie case of discrimination.

Moreover, even if plaintiff had provided evidence establishing a prima facie case of discrimination, Caltrans rebutted the presumption of discrimination by producing evidence that its actions were for a nondiscriminatory reason.   Haddadeen was tasked with reducing the backlog of Table C investigations by, inter alia, ensuring that employees were complying with attendance requirements.   Haddadeen monitored attendance and sent emails regarding a number of employees, including non-Muslims, about their apparent violation of attendance rules.   Haddadeen did not send the emails to plaintiff or the employees, but to the employees' supervisors.   It was plaintiff's supervisor (Nguyen) who forwarded the emails to other employees in plaintiff's work group.   Haddadeen said the delay in approving plaintiff's request for a leave was because he had questions for Nguyen, who was away on vacation.   The request was approved before the requested start date of the leave.

When plaintiff sent Quon an email accusing Haddadeen of “pure harassment” and of “lies” and “false accusation” because of reports of plaintiff's absence, Haddadeen admonished plaintiff that such statements were improper and unprofessional.   At no time was plaintiff subjected to any steps in the Caltrans progressive discipline policy.

Apparently, “ ‘insubstantial ’ evidence of improper motive may show pretext.”  (Chin, supra, § 7:452 at p. 7-84.1.) But again, there is no evidence of discriminatory motivation sufficient to show pretext.   Nothing suggests that plaintiff's religion or national origin was the cause of the actions of which plaintiff complains.   Summary judgment is appropriate where, as here, the plaintiff's evidence is not strong enough to overcome the innocent reasons given by the employer for the actions, such that “no rational factfinder could conclude the [employer's] action was discriminatory.”   (Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S. 133, 148;  see Guz, supra, 24 Cal.4th at p. 362.)   Plaintiff cannot avoid summary judgment on the basis of pretext.   Accordingly, on any of these theories, plaintiff has not established a triable issue of material fact to support his discrimination claim.

3. No Retaliation

Plaintiff's retaliation claim also would fail even if he had set forth a prima facie case of adverse employment action.   As discussed, FEHA prohibits discrimination or adverse employment actions against an employee for engaging in protected activities. (§ 12940, subd. (h).)  “[I]n order to establish a prima facie case of retaliation under the FEHA, a plaintiff 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.  [Citations.]  Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action.  [Citation.]  If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation ‘ “ ‘drops out of the picture,’ ” ' and the burden shifts back to the employee to prove intentional retaliation.  [Citation.]”  (Yanowitz, supra, 36 Cal.4th at p. 1042.)

Plaintiff asserts he started complaining in 2007 to management.   He ultimately filed a complaint with the Department of Transportation Office of Equal Opportunity Discrimination Complaint Investigation Unit and then DFEHA.   He asserts that it was after his complaints that he was accused of fraudulently reporting work hours, threatened with disciplinary action, and prevented from taking a leave to go to Iraq. He also stated that he watched the mouse on his computer move around, suggesting that someone was breaking into his computer to obtain information that could be used against him.   Haddadeen called him an idiot.   Employees were moved around, and “another engineer whose desk was next to his [plaintiff's] cubicle, had a large rear-view mirror located on top of his computer monitor ․ [and] was positioned in such a way that it reflected [his] cubicle, [his] computer, and [him].”   He believed this was to watch him.   The mirror is still there.   His computer does not work well, but Haddadeen has refused the approval for a new one.   He says Haddadeen continues to disparage him.

Most of plaintiff's grievances occurred prior to his complaints about Haddadeen.   The alleged surveillance was the basis of the complaints.   For the most part, nothing new occurred that would suggest retaliation.   The mirror and the computer issues took place after the complaints, but there is no indication that defendants had anything to do with them.   The incident over the request for leave took place after the complaints, but, ultimately, plaintiff received permission to take the leave prior to its scheduled date.   Any disparagement seemed to be continuous.   Plaintiff has not shown that any adverse employment action happened after or simultaneously with the protected activity.  (Chin, supra, § 7:767 at p. 7-123.)   Thus plaintiff has not established a prima facie case that there is a causal connection between the protected activity-the complaints-and the employer's action.  (Yanowitz, supra, 36 Cal.4th at p. 1044.)

D. Harassment Claim:  No Triable Issue of Causal Relationship

Plaintiff alleged that Haddadeen and the other defendants harassed him because he was Iraqi and a Muslim.  Section 12940, subdivision (j)(1) makes it an unlawful employment practice “[f]or an employer ․ because of race, religious creed, ․ national origin, [or] ancestry ․ to harass an employee․”  “[H]arassment focuses on situations in which the social environment of the workplace becomes intolerable because the harassment (whether verbal, physical, or visual) communicates an offensive message to the harassed employee.”   (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 706.)   The elements of a harassment claim are:  (1) the employee belonged to a protected group;  (2) the employee was subjected to harassment;  (3) the harassment was based upon, as relevant here, the employee's religion, national origin or ancestry;  and (4) the harassment was sufficiently severe or pervasive so as to alter the conditions of employment and create an abusive working environment.  (See Jones, supra, 152 Cal.App.4th at p. 1377;  Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 608;  see also Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 283 (Lyle ).)   Harassment may be verbal, such as the use of epithets, derogatory remarks or slurs;  physical, such as assault or impeding movement;  or visual, such as derogatory posters, cartoons or drawings.  (Cal.Code Regs., tit. 2, § 7287.6, subd. (b)(1)(A), (B) & (C);  Lyle, supra, 38 Cal.4th at pp. 280-281.)

In essence, plaintiff asserts that he was harassed by Haddadeen's accusations that plaintiff was tardy or absent from his desk, and by the failure of Quon and Mitwasi to take any action in response to his complaints.⁸  Even if we were to assume for purposes of our analysis that these actions constituted harassment and were so severe and pervasive that they created an objectively hostile work environment, plaintiff failed to raise a triable issue that defendants' actions were based upon plaintiff's protected status.

Plaintiff's claim is that he was harassed by defendants due to his status as an Iraqi and a Muslim.   As the trial court observed, defendants offered substantial evidence to the contrary.   Haddadeen declared that his practice of monitoring attendance was motivated by his need as OTI's office chief to resolve concerns relating to employee attendance and productivity and to reduce the backlog of Table C investigations.   Haddadeen further declared that he monitored all of the work groups he supervised and he “tried to be equitable in checking on employee attendance throughout OTI.”

The only evidence offered by plaintiff that might support an inference that any of defendants' actions were in any way related to plaintiff's national origin or religion was plaintiff's declaration that, in 1994, Haddadeen “said things ․ such as” “ ‘Muslims are stupid’ ” and “ ‘you f_ Muslim Iraqi’ ” and “ ‘your wife and her scarf’ ” and “ ‘we the [sic ] Muslim are stupid and backward and do not treat women with respect.’ ”   When, in 1994, plaintiff complained about Haddadeen's remarks, he was permitted to transfer;  as the result of plaintiff's transfer, Haddadeen said, “ ‘You betrayed me and I'll show you one day.’ ”

The conduct upon which plaintiff's harassment claim is based, however, began in January 2007, nearly thirteen years later.   The evidence is undisputed that Haddadeen was appointed as OTI office chief, with supervisory authority over plaintiff, in September 2006-but there are no allegations and there is no evidence of any harassment between September 2006 and January 2007.   None of the acts of alleged harassment identified by plaintiff that occurred in or after January 2007 consisted of racial or religious epithets or other derogatory comments.  (See Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 130.)   To the contrary, all of the objective evidence-including the texts of the allegedly “harassing” emails-is consistent with the conclusion that Haddadeen applied his attendance policy neutrally.   The attendance-related emails submitted by plaintiff identify several employees who were absent or tardy;  they are not targeted at or focused on plaintiff.   There is no evidence that any of the other employees mentioned in the emails is Iraqi or Muslim.   It is not reasonable to infer that defendants' conduct in 2007 was motivated by a discriminatory animus because of a few isolated remarks made by Haddadeen in 1994.

Plaintiff declares that he “knew” Haddadeen “was doing all those things because he hated me because I am an Iraqi and a Muslim.”   But plaintiff's assumptions about Haddadeen's motives are not evidence.   Accordingly, we conclude that plaintiff failed to produce sufficient evidence to support a reasonable inference that the alleged acts of harassment were based upon plaintiff's protected status as an Iraqi and a Muslim.   The evidence was not such as to “allow a reasonable trier of fact to find the underlying fact in favor” of plaintiff.  (Aguilar, supra, 25 Cal.4th at p. 850.)   Accordingly, plaintiff has not shown a triable issue of fact with respect to his harassment cause of action.

E. Failure to Prevent Discrimination and Harassment

Plaintiff alleged that Caltrans failed to prevent the alleged discrimination and harassment from occurring.  Section 12940, subdivision (k) makes it an unlawful employment practice “[f]or an employer ․ to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” (§ 12940, subd. (k);  see also State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1040.)   As plaintiff failed to make a sufficient showing that any actionable discrimination or harassment occurred, Caltrans cannot be held liable for failing to prevent it.

F. Defamation

The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage.  (Civ.Code, §§ 45, 46;  Taus v. Loftus (2007) 40 Cal.4th 683, 720.)   In his second amended complaint, plaintiff identified 18 allegedly defamatory statements.   One statement was from 1994;  the remainder occurred between January 2007 and March 2008.   In their motion for summary judgment, defendants did not contend that the statements were not made.   Instead, defendants argued that (1) the claim regarding the 1994 statement was time barred, and (2) the allegedly defamatory statements from 2007 and 2008(a) were not defamatory because they were statements of opinion, and (b) were, in any event, privileged under Civil Code section 47, subdivision (c).

The trial court ruled that plaintiff's claim regarding the 1994 statement was time barred and that the statements from 2007 and 2008 were not defamatory.⁹  The trial court did not state why it concluded that the 2007 and 2008 statements were not defamatory,¹⁰ but defendant's motion as to those statements was made on the grounds of opinion and privilege, and the argument as to those statements in both the trial court and on appeal has been limited to those issues.   Accordingly, we likewise limit our analysis to opinion and privilege.¹¹  We conclude that (1) Haddadeen's statement that plaintiff was an “idiot” was a statement of opinion, (2) Haddadeen's statements regarding plaintiff's work performance were privileged under Civil Code section 47, subdivision (c), and (3) plaintiff failed to raise a triable issue as to malice.

1. Opinion

“To state a defamation claim that survives a First Amendment challenge, [the] plaintiff must present evidence of a statement of fact that is ‘provably false.’  [Citations.]  ‘ “Statements do not imply a provably false factual assertion and thus cannot form the basis of a defamation action if they cannot ‘ “reasonably [be] interpreted as stating actual facts” about an individual.’   [Citations.]  Thus, ‘rhetorical hyperbole,’ ‘vigorous epithet[s],’ ‘lusty and imaginative expression[s] of ․ contempt,’ and language used ‘in a loose, figurative sense’ have all been accorded constitutional protection.   [Citations.]”  [Citation.]   The dispositive question ․ is whether a reasonable trier of fact could conclude that the published statements imply a provably false factual assertion.  [Citation.]'  [Citation.]  [¶] To ascertain whether the statements in question are provably false factual assertions, courts consider the ‘ “ ‘totality of the circumstances.’ ” '  [Citation.]  Whether challenged statements convey the requisite factual imputation is ordinarily a question of law for the court.  [Citation.]”  (Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1048-1049;  see also Regalia v. Nethercutt Collection (2009) 172 Cal.App.4th 361, 368.)

Plaintiff alleged that, in March 2008, Haddadeen inquired in Arabic as to the whereabouts of another employee.   Plaintiff said he did not know.   Haddadeen allegedly responded, “ ‘What kind of idiots like you are working in this office?’ ”   The remark was overheard by another employee in plaintiff's work group.¹²

In the context alleged by plaintiff, Haddadeen's statement might be considered rude and offensive, but it cannot reasonably be understood as a statement of fact.   Haddadeen was, it appears, engaging in mere rhetorical hyperbole in expressing his dissatisfaction with plaintiff's answer to his question.   It would be unreasonable to interpret Haddadeen's remark as an assertion that plaintiff actually was an idiot-that is, afflicted with extreme mental retardation-or even that plaintiff was professionally incompetent.  (See, e.g., Nygard, Inc. v. Uusi-Kerttula, supra, 159 Cal.App.4th at pp. 1052-1053;  Ruiz v. Harbor View Community Assn. (2005) 134 Cal.App.4th 1456, 1472-1473;  Franklin v. Dynamic Details, Inc. (2004) 116 Cal.App.4th 375, 386;  Ferlauto v. Hamsher (1999) 74 Cal.App.4th 1394, 1403-1404.)   Accordingly, Haddadeen's statement “ ‘What kind of idiots like you are working in this office?’ ” was a statement of opinion, not actionable defamation.

2. Privilege

The remaining allegedly defamatory statements consist of Haddadeen's emails regarding plaintiff's absenteeism or tardiness.   We conclude the statements were privileged.

Civil Code section 47, subdivision (c) establishes a privilege for “a communication [made], without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information.”   As relevant here, this privilege generally applies to communications among supervisory employees relating to a subordinate employee's job performance.  (See King v. United Parcel Service, Inc., supra, 152 Cal.App.4th at p. 440 [“employer's statements to employees regarding the reasons for termination of another employee generally are privileged”];  Bierbower v. FHP, Inc. (1999) 70 Cal.App.4th 1, 3 [privilege covers employer investigations of sexual harassment allegations];  Kelly v. General Telephone Co. (1982) 136 Cal.App.3d 278, 285 (Kelly ) [“Communication among a company's employees that is designed to insure honest and accurate records”];  see also Chin, supra, ¶ 5:410 at p. 5-48.)

The privilege does not apply, however, if the defamatory communication was made with malice.  “ ‘ “The malice necessary to defeat a qualified privilege is ‘actual malice’ which is established by a showing that the publication was motivated by hatred or ill will towards the plaintiff or by a showing that the defendant lacked reasonable grounds for belief in the truth of the publication and therefore acted in reckless disregard of the plaintiff's rights (citations).”  [Citations.]'  [Citations.]”  (Noel v. River Hills Wilsons, Inc. (2003) 113 Cal.App.4th 1363, 1370 (Noel );  see also Taus v. Loftus, supra, 40 Cal.4th at p. 721;  Agarwal v. Johnson (1979) 25 Cal.3d 932, 944 [“The malice referred to by the statute is actual malice or malice in fact, that is, a state of mind arising from hatred or ill will, evidencing a willingness to vex, annoy or injure another person.”], disapproved on another ground in White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 574, fn. 4.) Malice may not be inferred from the communication itself.  (Civ.Code, § 48;  Noel, supra, 113 Cal.App.4th at p. 1370.)   Although the defendant bears the initial burden of proving the privilege applies, the plaintiff bears the burden of proving malice.  (Taus v. Loftus, supra, 40 Cal.4th at p. 721.)

In this case, defendants carried their initial burden to demonstrate that the privilege applied.   The evidence was undisputed that the communications were made by a supervisory employee to other employees, and that they related to plaintiff's job performance.   In the conduct of a business, an employer must necessarily act upon and communicate his or her “perceptions about an employee's efforts, attitude, performance, potential or worth to the enterprise” and should not be inhibited in doing so by the threat of litigation.  (Jensen v. Hewlett-Packard Co. (1993) 14 Cal.App.4th 958, 965.)

In contrast, plaintiff failed to produce substantial evidence to raise a triable issue of malice.   There is no evidence that Mitwasi or Quon republished any of the allegedly defamatory statements with malice.   They merely referred communications to those who could deal with the complaints.¹³  Thus, plaintiff has not provided triable issues of fact as to the claim of defamation against them.

With respect to statements made by Haddadeen, Caltrans can be liable for under principles of respondeat superior for non-privileged defamatory statements by an employee.  (Kelly, supra, 136 Cal.App.3d at p. 284.)   The evidence of malice cited by plaintiff in his briefing consists of (1) Haddadeen's epithets regarding Iraqis and Muslims in 1994, and Haddadeen's statement following plaintiff's transfer that he would “show [plaintiff] one day”;  (2) Haddadeen's August 2007 email stating that plaintiff acted in an “unprofessional, improper and discourteous” manner when he sent Quon an email accusing Haddadeen of lying;  (3) Haddadeen's statement in March 2008 that he would make plaintiff “pay” for complaining to management;  and (4) Haddadeen's entire declaration in support of the summary judgment motion.   Considered separately or collectively, this evidence does not suffice.

Turning first to (4), we find nothing in Haddadeen's summary judgment declaration to support the conclusion that his statements regarding plaintiff's absenteeism and tardiness were motivated by ill will.   To the contrary, Haddadeen declared that the statements accurately reflected his observations and were motivated by the desire to improve employee attendance and productivity in OTI.

As to (3), the March 2008 statement occurred after the communications regarding plaintiff's absenteeism and tardiness, all of which occurred in January and August 2007.   Plaintiff acknowledges in his declaration that Haddadeen's statement was a response to plaintiff's complaints to management;  those complaints also post-dated the statements about plaintiff's absenteeism and tardiness.   Any ill will engendered by events that occurred after the relevant statements were made does not tend to show that the statements themselves were motivated by ill will.   To conclude otherwise would, in effect, permit a defamation plaintiff to defeat the privilege by picking a fight over the alleged defamatory communication after it occurred, and pointing to the conflict as evidence of malice.

As to (2), the August 2007 email itself was one of the allegedly defamatory communications insofar as it stated that plaintiff had not been at his desk that morning when Haddadeen went to discuss with plaintiff his request for a leave of absence.   As noted, malice cannot be inferred from the communication itself.  (Civ.Code, § 48.)   Furthermore, as discussed in Part C, ante, the portion of the email stating that plaintiff was “unprofessional, improper and discourteous” was clearly a response to an email sent by plaintiff to Quon after Haddadeen had reported that plaintiff was missing from his desk.   To the extent Haddadeen's response might suggest he felt ill will toward plaintiff, it was ill will engendered by events that occurred after the defamatory communications.   As noted, such evidence is not probative that the communications were motivated by malice.

As to (1), we do not doubt that the epithets attributed by plaintiff to Haddadeen regarding Muslims and Iraqis, as well as Haddadeen's reputed threat that he would “show [plaintiff] one day,” was evidence of animosity between Haddadeen and plaintiff in 1994.   But we do not believe that evidence of animosity in 1994 constitutes substantial evidence that, in 2007, Haddadeen's statements regarding plaintiff's absenteeism and tardiness were motivated by animosity.   The connection between the statements in 1994 and the statements in 2007 is simply too attenuated-and not only by the passage of time.   As discussed, there was no evidence of any ill will between plaintiff and Haddadeen between 1994 and early 2007, including the three-month period after Haddadeen was appointed OTI office chief in September 2006.   The summary judgment evidence showed that Haddadeen's attendance policy was motivated by legitimate business concerns and was applied neutrally to all employees.   Most of the reports of absenteeism and tardiness reflected in the record concern OTI employees other than plaintiff.   There is nothing in the language of Haddadeen's reports concerning plaintiff's absenteeism and tardiness that indicates they were motivated by ill will-the language is objective, firm but not strident, and entirely appropriate for a business environment.   Plaintiff points to events after the alleged defamatory statements as indicating malice.   Again, there is insufficient evidence that the statements were motivated by any ill will allegedly reflected in those events.   The trial court properly granted summary judgment on the defamation claim.

DISPOSITION

The judgment is affirmed.   Defendants are awarded their costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. Statutory references are to the Government Code unless stated otherwise..  FN1. Statutory references are to the Government Code unless stated otherwise.

FN2. We state the facts consistent with the rules that “we view the evidence in the light most favorable to plaintiffs” and “liberally construe plaintiffs' evidentiary submissions and strictly scrutinize defendants' own evidence, in order to resolve any evidentiary doubts or ambiguities in plaintiffs' favor.”  (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.).  FN2. We state the facts consistent with the rules that “we view the evidence in the light most favorable to plaintiffs” and “liberally construe plaintiffs' evidentiary submissions and strictly scrutinize defendants' own evidence, in order to resolve any evidentiary doubts or ambiguities in plaintiffs' favor.”  (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.)

FN3. Haddadeen was a named defendant in the trial court and was the alleged direct perpetrator of the acts on which plaintiff's claims are based.   Haddadeen was not a party to the motion for summary judgment, however, and he is not a party to this appeal.   It appears from the register of actions that plaintiff dismissed his claims against Haddadeen without prejudice after the trial court entered judgment in favor of defendants..  FN3. Haddadeen was a named defendant in the trial court and was the alleged direct perpetrator of the acts on which plaintiff's claims are based.   Haddadeen was not a party to the motion for summary judgment, however, and he is not a party to this appeal.   It appears from the register of actions that plaintiff dismissed his claims against Haddadeen without prejudice after the trial court entered judgment in favor of defendants.

FN4. As noted ante footnote 3, it appears plaintiff voluntarily dismissed his claims against Haddadeen without prejudice..  FN4. As noted ante footnote 3, it appears plaintiff voluntarily dismissed his claims against Haddadeen without prejudice.

FN5. “ ‘Disparate treatment’ is intentional discrimination against one or more persons on prohibited grounds.  [Citations.]  Prohibited discrimination may also be found on a theory of ‘disparate impact,’ i.e., that regardless of motive, a facially neutral employer practice or policy, bearing no manifest relationship to job requirements, in fact had a disproportionate adverse effect on members of the protected class.   [Citations.]”  (Guz, supra, 24 Cal.4th at p. 354, fn. 20.)   Plaintiff alleged his claim as one of disparate treatment..  FN5. “ ‘Disparate treatment’ is intentional discrimination against one or more persons on prohibited grounds.  [Citations.]  Prohibited discrimination may also be found on a theory of ‘disparate impact,’ i.e., that regardless of motive, a facially neutral employer practice or policy, bearing no manifest relationship to job requirements, in fact had a disproportionate adverse effect on members of the protected class.   [Citations.]”  (Guz, supra, 24 Cal.4th at p. 354, fn. 20.)   Plaintiff alleged his claim as one of disparate treatment.

FN6. Although not cited in defendants' separate statement, we note that defendants also submitted to the trial court plaintiff's deposition testimony that he could not recall whether he was “docked any time or any salary because of any time missed․”  (See King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 438 [trial court has discretion to consider evidence of which opposing party was aware although not specifically referenced in separate statement].).  FN6. Although not cited in defendants' separate statement, we note that defendants also submitted to the trial court plaintiff's deposition testimony that he could not recall whether he was “docked any time or any salary because of any time missed․”  (See King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 438 [trial court has discretion to consider evidence of which opposing party was aware although not specifically referenced in separate statement].)

FN7. Arguably, plaintiff also forfeited these arguments because he failed to specify in his separate statement that these facts were material to the adverse-employment-action issue.  (See North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 30-32.)   Moreover, for that same reason, the trial court arguably was entitled to disregard any evidence of these facts in determining whether plaintiff had raised a triable issue.  (See Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 171;  Oldcastle Precast, Inc. v. Lumbermens Mutual Casualty Co. (2009) 170 Cal.App.4th 554, 572;  Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1189-1192).   Because we affirm on other grounds, however, we do not determine whether affirmance on these bases would be warranted..  FN7. Arguably, plaintiff also forfeited these arguments because he failed to specify in his separate statement that these facts were material to the adverse-employment-action issue.  (See North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 30-32.)   Moreover, for that same reason, the trial court arguably was entitled to disregard any evidence of these facts in determining whether plaintiff had raised a triable issue.  (See Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 171;  Oldcastle Precast, Inc. v. Lumbermens Mutual Casualty Co. (2009) 170 Cal.App.4th 554, 572;  Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1189-1192).   Because we affirm on other grounds, however, we do not determine whether affirmance on these bases would be warranted.

FN8. Plaintiff also asserts that other acts of harassment occurred, but his other claims are unsupported by the evidence or are mere conclusions.   We have already concluded that plaintiff failed to produce evidence that his work load was “unreasonable” or that defendants' actions with respect to plaintiff's request for a leave of absence violated Caltrans any policy or varied from the usual practice with respect to such requests.  (See Discussion, Part C.1, ante.)   Plaintiff's assertions that he was “denied a hostility-free work environment” and was “forced to suffer mental distress” are mere conclusions regarding plaintiff's own mental state and do not describe acts of harassment by defendants..  FN8. Plaintiff also asserts that other acts of harassment occurred, but his other claims are unsupported by the evidence or are mere conclusions.   We have already concluded that plaintiff failed to produce evidence that his work load was “unreasonable” or that defendants' actions with respect to plaintiff's request for a leave of absence violated Caltrans any policy or varied from the usual practice with respect to such requests.  (See Discussion, Part C.1, ante.)   Plaintiff's assertions that he was “denied a hostility-free work environment” and was “forced to suffer mental distress” are mere conclusions regarding plaintiff's own mental state and do not describe acts of harassment by defendants.

FN9. The trial court's minute order states in relevant part, “The only purported defamatory statements were made in 1994 by Defendant Haddadeen.   The Statute of Limitations for defamation is 1 year pursuant to Code of Civil Procedure Section 340(1).”   The trial court made no additional relevant comments regarding the defamation claim during the hearing on the summary judgment motion..  FN9. The trial court's minute order states in relevant part, “The only purported defamatory statements were made in 1994 by Defendant Haddadeen.   The Statute of Limitations for defamation is 1 year pursuant to Code of Civil Procedure Section 340(1).”   The trial court made no additional relevant comments regarding the defamation claim during the hearing on the summary judgment motion.

FN10. We note that, of the 17 allegedly defamatory statements from 2007 and 2008, nine were statements made by plaintiff to managers and coworkers complaining about Haddadeen;  one was a complaint by a nondefendant coworker about Haddadeen that did not concern plaintiff;  and two were not statements at all, but were incidents in which plaintiff and coworkers allegedly saw a mouse cursor moving by itself across plaintiff's computer screen..  FN10. We note that, of the 17 allegedly defamatory statements from 2007 and 2008, nine were statements made by plaintiff to managers and coworkers complaining about Haddadeen;  one was a complaint by a nondefendant coworker about Haddadeen that did not concern plaintiff;  and two were not statements at all, but were incidents in which plaintiff and coworkers allegedly saw a mouse cursor moving by itself across plaintiff's computer screen.

FN11. Plaintiff has not challenged on appeal the trial court's ruling as to the 1994 statement.   Defendants did not contend in the trial court and do not contend on appeal that the allegedly defamatory statements made prior to March 6, 2007 were time barred, even though the statements were made more than one year before plaintiff filed his complaint.   There is also no issue regarding whether plaintiff complied with the California Tort Claims Act..  FN11. Plaintiff has not challenged on appeal the trial court's ruling as to the 1994 statement.   Defendants did not contend in the trial court and do not contend on appeal that the allegedly defamatory statements made prior to March 6, 2007 were time barred, even though the statements were made more than one year before plaintiff filed his complaint.   There is also no issue regarding whether plaintiff complied with the California Tort Claims Act.

FN12. Defendants assert that, as there was no evidence that the other employee spoke Arabic, the allegedly defamatory statement “was not really published.”   Defendants, however, bore the burden on summary judgment to produce evidence to show that plaintiff could not establish the publication element of a defamation claim.   They failed to do so.   Accordingly, we assume the other employee understood Haddadeen's comment..  FN12. Defendants assert that, as there was no evidence that the other employee spoke Arabic, the allegedly defamatory statement “was not really published.”   Defendants, however, bore the burden on summary judgment to produce evidence to show that plaintiff could not establish the publication element of a defamation claim.   They failed to do so.   Accordingly, we assume the other employee understood Haddadeen's comment.

FN13. They might be immune from liability for just forwarding emails.   (See Barrett v. Rosenthal (2006) 40 Cal.4th 33 [no liability as republisher for forwarding e-mails].).  FN13. They might be immune from liability for just forwarding emails.   (See Barrett v. Rosenthal (2006) 40 Cal.4th 33 [no liability as republisher for forwarding e-mails].)

TURNER, P. J. KRIEGLER, J.