Filed 2/18/15 Sanchez v. Time Warner CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

ERIKA SANCHEZ,
Plaintiff and Appellant,

v.
TIME WARNER, INC., et al.,
Defendants and Respondents. B249725
(Los Angeles County Super. Ct. No. BC475767)

APPEAL from a judgment of the Su perior Court of Los Angeles County, Deirdre Hill, Judge. Affirmed. Law Offices of Stephen A. Ebner, Ste phen A. Ebner and Stephen J. Reiss for Plaintiff and Appellant. Hill, Farrer & Burrill, James A. Bowles and Casey L. Morris for Defendants and Respondents.

_____________ ____________2 Plaintiff and appellant Erika Sanchez brought this action against her employer Time Warner, Inc. (TWI) and Freda Watson, her immediate supervisor, alleging claims for race discrimination, race harassment, and failure to prevent discrimination and harassment under the California Fair Employ ment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.). 1 Watson is an African-American fema le, and Sanchez is an Hispanic female. Watson’s comments to Sanchez, wh ich form the basis of her FEHA claims, compare Sanchez in both he r physical appearance and her actions to the physical appearance and actions of an African-A merican female. Sanchez found these comparisons offensive because she believe d Watson was “putting her race down.” The trial court granted TWI’s and Watson’s summary judgment motion and entered judgment. Sanchez appeals. We affirm, concluding as the trial court did that the conduct complained of by Sanchez does not raise a tr iable issue of fact as to any of her FEHA claims.
FACTUAL AND PROCEDUR AL BACKGROUND
1. Sanchez’s Employment with TWI In March 2010, Sanchez was hired to work as a sales retention specialist at TWI’s Culver City office. Sanchez was born in El Salvador and is an Hispanic female. Watson was Sanchez’s supervisor from Ma rch or April of 20 10 until the beginning of February 2011. Watson is an African-American female. Orlando Hadnot was Watson’s direct supervisor and manager of sales and retention at the Culver City office. Ha dnot is an African- American male. Beginning in August 2010 and ending in late January 2011, Sanchez received progressive discipline warnings for attendanc e policy violations and for failing to meet performance expectations. In August 2010, Watson gave Sanchez a verbal warning for failing to meet performance goals. The next month, Watson gave Sanchez a verbal warning for excessive absenteeism and tardin ess during a six-month period. In January 2011, Sanchez received a written warning for excessive absenteeism and for failure to

1 Unless indicated, all further statutory re ferences are to the Government Code.3 meet performance goals. Sanchez received a final written warning concerning her absenteeism on January 20, 2011. In late January 2011, Sanchez commenc ed a workers’ compensation leave of absence. She was on leave un til March 19, 2012. Sanchez retu rned to work at the Culver City office where Watson remained a superv isor, although she was no longer under her direct supervision. Sanchez’s FEHA claims are based up on her employment tenure working under Watson’s supervision.
2. Sanchez’s Complaint for Race Discrimination, Race Ha rassment, and Failure to Prevent Discrimination and Harassment After obtaining a right to sue letter from the Department of Fair Employment and Housing, Sanchez filed a complaint against TWI and Watson, alleging race discrimination against TWI (§ 12940, s ubd. (a)), race harassment against TWI and Watson ( id. , subd. (j)(1)), and failure to prevent discrimination and harassment against TWI ( id. , subd. (k)). 2

a. Watson’s Race Comparisons and Race-Based Comments The complaint alleges Watson made seve ral comments about Sanchez’s physical appearance and conduct, which included comp aring Sanchez to African-Americans. Upon initially meeting Sanchez, Wats on allegedly looked Sa nchez up and down and told her, “ ‘You’re cute.’ ”

2 In Sanchez’s separate statement of additio nal material facts in dispute, there is a reference to Watson’s “ ‘sexual’ harassment.” The complaint does not allege a cause of action for sexual harassment. In her opening brief, Sanchez cites to an investigation report finding no evidence of “ ‘sexual-or gend er-based harassment in the legal sense,’ ” but her objection to the admission of this evidence was sustained. In evaluating a summary judgment motion, we consider all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court. (Code Civ. Proc., § 437c, subd. (c).) We therefore do not consid er this evidence. We grant Sanchez’s motion to augment the record to include evidence submitted in opposition to the summary judgment that was omit ted from the clerk’s transcript.4 Thereafter, and on a continuing basis, Watson allegedly made comments about Sanchez’s appearance such as: “ ‘Those are cute pants – I us ed to have pretty hair like you – I used to have a body like yours – You have a small wa ist and a big butt – Hispanic people don’t have big butts – Hispanic pe ople don’t look black like you do.’ ” Watson also allegedly commented to Sanc hez that “ ‘You have a black girl’s body – You dress black – You talk black – You look like you’re mi xed with black – You have a big butt like a black girl.’ ” Watson saw a picture of Sanchez’s daug hter and told Sanchez that “ ‘[y]our daughter looks mixed black.’ ” Watson ques tioned Sanchez as to whether she was dating, or had dated, African-American men. During the Christmas season, it is allege d that Watson asked Sa nchez, “ ‘[d]o you eat black people’s food?’ ” On another occa sion, Watson told Sanchez: “ ‘Don’t make me whoop you.’ ” Watson asked Sanchez “ ‘where she was born’ ” and “ ‘when she came to the United States.’ ” b. Sanchez Complains about Wa tson’s Comments and Conduct Sanchez alleges she “continually” co mplained about Watson’s comments to another supervisor, Maria Paez- Orozco, to no avail. Watson’ s alleged harassment, along with management’s failure to take appr opriate remedial actions, allegedly made Sanchez’s working conditions an d her continued employment in tolerable and stressful.
3. Summary Judgment Motion TWI and Watson filed a motion for summary judgment, which Sanchez opposed. Evidence presented in support of, and in opposition to, the summary judgment revealed the following undisputed facts.5 a. Watson’s Race-Based Comment s and Racial Comparisons In the presence of Sanchez’s coworker s, Watson made comments to Sanchez as alleged in the complaint. 3 At least 10 times, Watson made a comment to Sanchez that she looked “like a Blac k girl.” Sanchez testified that she considered Watson’s comment about eating “black people food” harassment b ecause “everything was just a black thing, and I felt she was picking at me for my race because I shouldn’t be probably eating black people food or having a black boyfriend.” Sanchez believed that Watson’s comparisons of her physical appearance to an African-American woman we re inappropriate. Sanchez testified: “She’s saying that I looked black, that I eat black people food, that’s why black [men] like me, that’s why I like black men. I felt it wa s putting my own race down.” 4 She explained further that these racial compar isons “put down her race” because “I’m not Black. I’m Hispanic.” Sanchez dreaded going to wo rk. She resented being interrupted and distracted by Watson’s comments while she was trying to work. Sanch ez felt frustrated, uncomfortable, and demeaned by Watson’s comments. b. TWI’s Knowledge of Watson’s Co mments and TWI’s Response Paez-Orozco, a TWI supervisor, was awar e of Watson’s comments to Sanchez. Hadnot, the manager of sales and retention of the Culver City office, also was aware of Watson’s comments to Sanchez.

3 For purposes of summary judgment, th e pleadings define the issues. ( Wood v. Riverside General Hospital (1994) 25 Cal.App.4t h 1113, 1120.) Therefore, we disregard Watson’s evidence of additional comments and other allegations of coworker harassment that were not alleged in th e operative complaint.

4 The following excerpt from Sanchez’s de position was submitted in support of the motion for summary judgme nt: “Q So other th an the discussions ab out food, what else did Freda [Watson] say that y ou considered harassment because of your race? [¶] A That I had a big butt like a black girl; that I was shaped like a black girl; that I looked black. She would make these remarks in front of supervisors numerous of times throughout the year that I was there working.”6 On February 1, 2011, Sanchez compla ined to human resources manager Pam Brown after Watson threatened to discipline Sanchez for “disrespect ing” her. This was the first time that Sanchez complained to human resour ces about Watson. Sanchez testified that she waited until she received her final warning to complain to human resources because Watson threat ened her with term ination and she was afraid of losing her job. On February 8, 2011, Sanchez filed a written comp laint against Watson. On March 1, 2011, Sanchez spoke to Kim Congdon, vice president of human resources. Sanchez complained that Watson made inappropriate comments to her about her race. Paul Falcone, vice president of empl oyee relations, conducted an investigation. Falcone did not interview Sanchez. On March 28, 2011, Congdon provided Sanchez with the results of Falcone’s investigation. At Sanchez’s request, Cong don conducted a second investigation. Congdon sent Sanchez a letter dated Ap ril 15, 2011, inform ing Sanchez of the investigation findings.

c. Trial Court’s Written Order Grantin g the Summary Judgment Motion The trial court granted the summary judgm ent motion. The trial court concluded that Sanchez had not presented a triable issue of fact as to essential elements of her prima facie case of race discrimination because there was no issue of fact as to whether she had suffered an adverse employment action or that Watson had a discriminatory motive. In reaching this conclusion, the trial court rejected Sanchez’s contention that Watson’s comments raised an inference of discriminato ry animus toward Hisp anics. As for the race harassment claim against Watson and TW I, the trial court concluded many of the alleged comments were race neutral, and the remaining comments directed toward Hispanics were not sufficiently severe or pervasive to constitute a hostile work environment. Because these tw o causes of action failed, the trial court concluded that the third cause of action for failure to prevent race discrimination an d harassment also failed. Following entry of judgment in favor of TWI and Watson, Sanchez filed a timely notice of appeal.7 DISCUSSION
1. Standard of Review A motion for summary judgment must be granted if the submitted papers show there is no triable issue as to any material fact and that the movi ng party is entitled to judgment as a matter of law. The moving pa rty initially bears the bu rden of production to make a “prima facie showing of the nonexistence of any genuine issue of material fact.” ( Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 845.) “A prima facie showing is one that is sufficient to support the position of the party in question.” ( Id . at p. 851.) A defendant moving for summary judgment meets its burden of showing that there is no merit to a cause of action if that party has s hown that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subds. ( o )(2), (p)(2).) If the defendant meets this burden, the burden of production shifts back to the plai ntiff to make a prima facie showing of the existence of a triable issue of fact as to that cause of action or defense. ( Id ., subd. (p)(2).) A triable issue of material fact exists, “if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in fa vor of the party opposing the motion in accordance with the applicable standard of proof.” ( Aguilar v. Atlantic Richfield Co. , supra , at p. 850.) We independently review the record and the determination of the trial court. First, we identify the issues raised by the pleadings, because it is those a llegations to which the motion must respond. Second, we determin e whether the moving party’s showing has established facts negating the opponent’s clai ms and justifying judgment in the moving party’s favor. The third, and final step , is to determine wh ether the opposition demonstrates the existence of a triable, material issue of fact. ( Barclay v. Jesse M. Lange Distributor, Inc. (2005) 129 Cal.App.4th 281, 290.)
2. There is no Material Dispute of Fact as to Sanchez’s Race Discrimination Claim To state a prima facie claim of discrimi nation in violation of the FEHA (§ 12940, subd. (a)), Sanchez must establis h that (1) she is a member of a protected class, (2) she was performing competently in the position she held, (3 ) she suffered an adverse8 employment action, and (4) some other circ umstance that suggests a discriminatory motive. ( Avila v. Continen tal Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1246.) If Sanchez makes a prima facie show ing, the burden shifts to TWI to provide a legitimate, nondiscriminatory reason for the challenged employment decision. ( Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355-356.) If TW I meets this burden, Sanchez must produce substantial evidence demonstrating the employer’s reason was a pretext for discrimination. ( Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 1003.) This three-part framework is modified in the summary judgment context. TWI, as the moving party, has the initial burden to pr esent admissible evid ence showing either that one or more elements of Sanchez’s prim a facie case is lacking or that the adverse employment action was based upon legitim ate, nondiscriminatory factors. ( Hicks v. KNTV Television, Inc. , supra , 160 Cal.App.4th at p. 1003.) We conclude, as the trial court did, that there is no ev idence in the record to raise a triable issue that Sanchez suffered an adverse employment action, a nece ssary element of her prima facie case of race discrimination. Sanchez argues on appeal that she ha s raised a triable issue on whether she suffered an adverse employment action by citi ng to the following incidents: (1) Watson threatened her with terminati on and interrupted her work; (2) Brown misrepresented their meeting in an e-mail that Brown sent to Congdon following Sanc hez’s initial complaint to human resources; and (3) TWI “caused Sanche z to return to work at the same location as and in close proximity to Watson afte r Sanchez reported racial harassment by
Watson.” To be actionable, an adverse employment action must materially affect the terms, conditions, or privileges of employment. ( Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1053-1055.) Minor advers e actions do not qualif y – Sanchez had to show she suffered an adverse employment action such as termination, demotion, or denial of an available job. ( Id . at pp. 1054-1055; Guz v. Bechtel National, Inc. , supra , 24 Cal.4th at p. 355.) Or, ot herwise stated, an adverse employment action is one that is9 “reasonably likely to adversely and materially affect an employee’s job performance or opportunity for advancement in his or her career.” ( Yanowitz , supra , at p. 1054.) Neither Sanchez nor TWI adequately argue s this issue on appeal with citation to legal authority and to the record. (See Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 [“When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to au thority, we treat the point as waived [or forfeited].”].) Because Sa nchez had the burden on appeal , we consider the argument forfeited. In any event, Sanchez’s disparate treatm ent claim fails as a matter of law because none of the actions stated above raises a triable issue of fact as to an adverse employment action as defined in Yanowitz . Sanchez testified that Wats on’s discipline, which included performance issues, was not based upon her r ace. Sanchez was not terminated, demoted, reassigned, or denied an opportunity for ad vancement because of her race. Thus, this disparate treatment cause of action alleging race discrimination fails as a matter of law.
3. Race Harassment Based Upon a Hostile Work Environment The parties’ appellate briefs focus on Sanchez’s race harassment claim (§ 12940, subd. (j)(1)) against TWI and Watson. The FEHA prohibits “an employer . . . or any other person” from harassing an employee becaus e of race, national origin, or ancestry. ( Ibid .; Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 1 21, 129 (lead opn. of George, C.J.).) 5 Unlike discrimination, “ ‘harassment consists of a type of conduct not necessary for performance of a supervisory job. Instead, harassment consists of conduct outside the scope of necessary job perform ance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives.’ ” ( Reno v. Baird (1998) 18 Cal.4th 64 0, 645-646, quoting Janken v. GM Hughes

5 The federal counterpart of the FEHA, title VII of the Civil Rights Act of 1964 (Title VII) (42 U.S.C. § 2000e et seq.), also st ates that harassment in the workplace may give rise to a cause of action for employmen t discrimination. Title VII cases can be considered when interpreting the scope of the FEHA. ( Etter v. Veriflo Corp. (1998) 67 Cal.App.4th 457, 464.)10 Electronics (1996) 46 Cal.App.4th 55, 63-65.) “T hus, harassment focuses on situations in which the social environment of the workplace become s intolerable because the harassment (whether verbal, physical, or vi sual) communicates an offensive message to the harassed employee.” ( Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 706.) Under the FEHA, Watson is individua lly liable for harassment. (§ 12940, subd. (j)(3).) When the harasser is a supervisor, the employer is st rictly liable for the supervisor’s actions. ( Roby v. McKesson Corp. , supra , at p. 707.)

a. Governing Legal Principles To prevail, an employee claiming race harassment based upon a hostile work environment must demonstrate that the con duct complained of is severe enough or sufficiently pervasive to a lter the conditions of employment and create a work environment that qualifies as hostile or abusiv e to employees because of their race. (See Lyle v. Warner Brothe rs Television Productions (2006) 38 Cal.4t h 264, 278-279 ( Lyle ).) To avoid summary judgment on her claim of a racially hostile work environment, Sanchez, as a member of a protected class, must raise a triable issue that (1) she was subjected to unwelcome race harassment subj ectively and objectively; (2) the harassment was based on her race; (3) the harassmen t unreasonably interfered with her work performance by creating an intimidating, host ile, or offensive working environment that seriously affected her psychological well-bei ng; and (4) there is a basis for employer liability. ( Thompson v. City of Monrovia (2010) 186 Cal.Ap p.4th 860, 876; Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 608.) “Harassment includes ‘ “epithets, deroga tory comments or slurs . . . .” ’ ” ( Dee v. Vintage Petroleum, Inc. (2003) 106 Cal. App.4th 30, 35 ( Dee ).) Harassment “communicates an offensive message to the harassed employee.” ( Roby v. McKesson Corp. , supra , 47 Cal.4th at p. 706.) Not all wo rkplace harassment will give rise to a FEHA violation. “The working environment must be evaluated in light of the totality of the circumstances: ‘[W]hether an enviro nment is “hostile” or “abusive” can be determined only by looking at all the circumst ances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or11 humiliating, or a mere offensive utterance; a nd whether it unreasonably interferes with an employee’s work performance.’ [Citation.]” ( Miller v. Department of Corrections (2005) 36 Cal.4th 446, 462.) As noted, “harassment must satisfy an objective and a subjective standard.” ( Hope v. California Youth Authority (2005) 134 Cal.App.4th 577, 588.) The objective severity of harassment is judged from the perspective of a reasonable person in the plaintiff’s position, given all the circumstances. ( Lyle , supra , 38 Cal.4th at pp. 283-284.) “That means a plaintiff who subjectively perc eives the workplace as hostile and abusive will not prevail under the FEHA, if a reas onable person in the plaintiff’s position, considering all the circumstances, would no t share the same perception. Likewise, a plaintiff who does not perceive the workplace as hostile or abusive will not prevail, even if it objectively is so.” ( Id. at p. 284

. ) This objective component must be assessed from the “ ‘perspective of a reasonable person belo nging to the racial or ethnic group of the plaintiff.’ ” ( Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 263-264.) b. There is No Material Dispute as to the Objective Component It is undisputed that Watson’s comment s were unwelcome; Sanchez felt as if Watson was “putting her race dow n,” and Sanchez testified th at she suffered emotional harm. But, this evidence goe s toward the subjective, not the objective co mponent of a harassment claim. As to the objective component, Sanchez states the issue as whether “ ‘employees have the right to be Hispanic (o r any other race, for that matter) and not be told they act like, look like, or should be, some othe r race, both continuously and repetitively, while performing their job?’ ” We frame the issue as whether a reasonable Hispanic woman subjected to th e racial comparisons attributed to Watson would consider them to be disparaging or de rogatory toward her race or national origin considering all the workplace circumstances. 6

6 We do not address the comments Watson made to Sanchez of a sexual nature because Sanchez has not pursued a cause of action for sexual harassment.12 Watson’s comments are not evidence of unambiguous racial slurs, derogatory comments, or epithets directed to ward Hispanics. (See, e.g., Aguilar v. Avis Rent A Car System, Inc. , supra , 21 Cal.4th at pp. 126-127 [hostile work environment based upon supervisor’s comments only to Latino employe es calling them derogatory and demeaning names and commenting on their lack of English language skills]; Vasquez v. County of Los Angeles (9th Cir. 2003) 349 F.3d 634, 638, 642-644 [no hostile work environment under Title VII based upon unfair treatment by supervisor and isolated racially related epithets that employee had a “ ‘typical Hispan ic macho attitude’ ” and should work in the field because “ ‘Hispanics do good in the field’ ”].) Mo reover, none of Watson’s racial comparisons evoked racial stereotypes associ ated with Hispanics or had any apparent racially pejorative purpose or motive to rais e a triable issue of fact when considered under the totality of the work place circumstances. Sanchez contends the FEHA prohibits ra cial comparisons su ch as the comments Watson made to her, citing to Dee, supra , 106 Cal.App.4th 30. Dee was a race/national origin harassment case but it does not stand fo r the proposition that any racial comparison in the workplace is a legally cognizable cl aim of race harassment under the FEHA. Dee is inapposite.
In Dee , supra , 106 Cal.App.4th 30, the Court of Appeal reversed a summary judgment entered in favor of the employer, c oncluding that the supervisor’s ethnic slur, combined with other abusive ev idence, raised a triable issue of fact as to whether the employer had created a hostile work environment. ( Id . at pp. 35, 37.) Andy Marsh was Dee’s direct supervisor, and Paul Strickland was Marsh’s supervisor. Strickland verbally abused Dee, and on one occas ion asked her to steal a doc ument from Marsh’s desk and scolded her when she got caught. ( Id . at p. 33.) On another occasion, Strickland asked Dee to “ ‘make up stories’ ” to hide info rmation from Marsh, which Dee believed meant to “tell a lie.” ( Ibid .) “Strickland said, ‘Did I tell you to lie?’ Dee replied, ‘Well, you did not tell me to lie. You told me to make up stories. Isn’t that the same as telling a lie?’ Strickland said, ‘Well, what are you, a Filipino?’ Dee said, ‘Yes, a Filipino.’ Strickland said, ‘Well, it is your Filip ino understanding versus mine.’ ” ( Ibid .)13 The Dee court concluded that the comment – “ ‘it is your Filipino understanding versus mine’ ” – to an employee of Filipino descent was an ethnic slur that was abusive and hostile. ( Dee , supra , 106 Cal.App.4th at pp. 36-37.) The court reasoned that the ethnic slur explained Strickland’s discrimina tory motive for creatin g an abusive working environment in which he “berated her, ‘hara ssed’ her, ordered her to lie and blamed her for tasks he ordered her to perform,” and “called her a ‘bitch’ and ‘constantly’ used the word ‘asshole.’ ” ( Id . at pp. 36-37.) Thus, in Dee , the court concluded that based upon the totality of the circumstances, a reasonable tr ier of fact could infer the racial slur was evidence of a discriminatory an imus toward Filipinos. Unlike Dee , no inference of racial animus to ward Hispanics can be drawn from Watson’s comments. Sanchez testified that she did not like th e comparison to an African-American because “she is not Black ,” not because Watson harbored racial animosity toward Hispanics. We cannot, as the Dee court did, conclude that a reasonable inference can be drawn based upon the tota lity of the circumstances that Watson’s comments about her own race (African-American) reflect a discriminatory animus toward Hispanics. Because harassment has both a subjective and objec tive component, we conclude that an essential element of this cause of action cannot be satisfied. The trial court did not err in granting summary judg ment as no reasonable jury could find in Sanchez’s favor on this claim.
4. Failure to Prevent Discri mination and Harassment Courts have required a finding of actu al discrimination or harassment under the FEHA before a plaintiff may prevail on a clai m for failure to prevent discrimination and harassment (§ 12940, subd. (k); Carter v. California Dept . of Veterans Affairs (2006) 38 Cal.4th 914, 925, fn. 4.) Because Watson has not met he r burden to raise a triable issue of fact as to her race discrimination and race harassment claims, this claim fails as a matter of law.14 DISPOSITION The judgment is affirmed. Responde nts are entitled to costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

EDMON, P. J.

KITCHING, J.