Filed 10/30/14 Polk v. Lowe’s HIW CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SIXTH APPELLATE DISTRICT
GLENN POLK, Plaintiff and Appellant,

v. LOWE’S HIW, INC., Defendant and Respondent. H039950 (Santa Clara County Super. Ct . No. 1-11-CV202042)

Plaintiff Glenn Polk was employed by de fendant Lowe’s HIW, Inc. (Lowe’s), from July 2008 until he resigned in January 2011. Fo llowing his resignation, Polk filed a lawsuit against Lowe’s alleging causes of acti on for constructive discharge, hostile work environment, failure to prevent harassment , and intentional inf liction of emotional distress. Polk alleged that a department manager at Lowe’s, Adam Bal, sent him a racially offensive text message, causing hi m psychological trauma. Lowe’s moved for summary judgment on all of Polk ’s causes of action, which th e trial court granted. Polk appealed the trial court’s judgment in favor of Lowe’s, arguing that the court erred in granting summary judgment on his hos tile work environment claim. For the reasons set forth below, we conc lude that Polk failed to demonstrate the existence of a triable issue of material fact regarding his cause of ac tion for a hostile work environment. We affirm the judgment.2 F ACTUAL AND P ROCEDURAL B ACKGROUND The Undisputed Facts 1
Polk worked as an hourly at-will employee at Lowe’s between July 2008 and January 2011. Polk was initia lly employed at a Lo we’s store in Sunnyvale but was later transferred to a store in east San Jose. Bal was employed as the freight department manager for the Lowe’s store in east San Jo se from October 2009 to November 2010. Americo Peri was the store manager for the east San Jose store, and Aloy Nnorukam was the human resources manage r. Bal did not have any overt “race problems” with Nnorukam or Peri. However, Polk said he fe lt a “bad vibe” from Peri and while he had a “[g]ood working relationship” with Peri, he felt that “[Peri] just didn’t care for [him].” In 2010, Polk was transf erred from the store’s freight department to the tools department. Polk told Nnorukam that he thought he was being transferred due to his ethnicity, which Nnorukam denied. Nnoruk am told Polk he was being transferred because of his tardiness. Polk noticed that Bal and Peri appeared to be friends and would sometimes joke with each other using crude language and pr ofanity. Polk felt Bal and Peri avoided talking to him. On October 19, 2010, at approximately 3: 44 a.m., Polk received a text message from Bal’s personal cell phone which read: “This nigga was never on time when he was on freight. Now he’s in tools. He’s in ea rly every day.” Bal ha d never made racially offensive comments to Polk befo re this incident. Bal apolog ized to Polk the same day and explained the message was not intended for him. Polk reported the text message to management and submitted a statement. Ba l was sent home and was suspended pending

1 Some of the evidence cited by Polk in his opening brief was objected to by Lowe’s and excluded by the tria l court below. Polk has not challenged the trial court’s evidentiary rulings. We will therefore state th e facts of the case without reference to the excluded material.3 the outcome of the investigation. Nnorukam spoke with Polk and Bal and concluded that Bal had accidentally sent the message to Polk. He determined the message was inappropriate and in violation of company polices, and concluded that Bal should be terminated. The incident was handled at th e store level and was not reported to Lowe’s corporate offices. Bal was terminat ed by Lowe’s on November 4, 2010. 2 After the incident, Polk requested time o ff and a leave of absence. Polk also asserted he felt ill after receiving the te xt and experienced sleepless nights, anger, anxiety, and fear. Polk sought medical atte ntion for his symptoms. During his absence from work, Polk wa s informed that Bal had been susp ended and was later told that Bal was terminated. Accordingly, Polk and Bal ne ver worked together at the store after the text messaging incident. Polk vol untarily resigned in January 2011. Procedural History On May 31, 2011, Polk filed a complain t against Lowe’s and Bal, alleging five causes of action: (1) breach of contract a nd constructive discharge, (2) hostile work environment and ha rassment, (3) failure to prevent a hostile work environment, (4) intentional infliction of emotional distress, a nd (5) constructive discha rge in violation of public policy. 3 The causes of action for hostile work environment and intentional

2 Polk argued below that Bal was allowed to resign and was not terminated. However, the only evidence proffered by Polk to dispute the fact that Bal was terminated was a letter of resignation that the trial cour t deemed inadmissible. Accordingly, we cannot rely on this document as evidence of Bal’s resignati on. Furthermore, during his deposition, Nnorukam specifically stated th at Bal was terminated from his position at Lowe’s. 3 Polk’s complaint alleged he had receiv ed a right-to-sue letter from the California Department of Fair Employme nt and Housing (DFEH) on Ma rch 27, 2011. Lowe’s does not dispute that Polk has exha usted his administrative remedi es by filing a complaint with the DFEH for violations of the Fair Employ ment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.). (See Romano v

. Rockwell Internat ., Inc . (1996) 14 Cal.4th 479, 492; Gov. Code, §§ 12960, 12965.)4 infliction of emotional distress were alleged ag ainst Lowe’s and Bal. The other causes of action were alleged only as to Lowe’s. Polk’s complaint alleged that Lowe’s and Bal subjected him to harassment based on his race, which created a hostile and abusive work environment. Polk asserted he was subjected to unwarranted racial slurs at wo rk because he is A frican American. He claimed he was significantly affected by the text message referring to him as a “nigga” and considered the message an abusive person al attack that caused him to experience high blood pressure, anxiety, fear, and depression. Polk’s complaint did not allege any other specific incidents of harassment. Lowe’s moved for summary judgment on Ma y 18, 2012. In September 2012, Polk filed an opposition to the moti on for summary judgment. Lowe ’s objected to some of Polk’s submitted evidence and filed a reply brief. On December 7, 2012, the trial cour t granted Lowe’s motion for summary judgment, sustaining some of Lowe’s evidentiary objections . The trial court entered a final judgment in favor of Lowe’s on May 31, 2013, and Polk appealed. S TANDARD OF R EVIEW We review the trial court’s grant of su mmary judgment under a de novo standard of review. ( Monticello Ins

. Co

. v
. Essex Ins

. Co

. (2008) 162 Cal.App.4th 1376, 1385.) Summary judgment is granted if all the movi ng papers show there is no triable issue of any material facts, and that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) Defend ants are entitled to summary judgment if a necessary element of plaintiff’s complaint cannot be established, or if there is a complete defense to the plaintiff’s cause of action. ( Id ., subd. (o)(2).) In reviewing a grant of summary judgment in favor of the defendant, as in this situation, we must review the entire record de novo and de termine whether the defendant “ ‘conclusively negated a necessary element of the plaintiff’s case or de monstrated that under no hypothesis is there5 a material issue of fact that re quires the process of trial.’ ” ( WYDA Associates v

. Merner (1996) 42 Cal.App.4th 1702, 1709.) D ISCUSSION On appeal, Polk argues th at the trial court erred in granting summary judgment in favor of Lowe’s regarding his cause of ac tion for a hostile work environmen t based on

race. 4 First, Polk claims the tria l court erred in finding that the text message sent by Bal was, by itself, insufficient to sustain a cause of action for hostile work environment. Additionally, he insists that the trial court e rred in failing to consider additional evidence of racial discrimination at Lowe’s aside from the text message. Legal Principles Governing Hostile Work Environment Claims FEHA prohibits employers from discri minating or harassing employees on the basis of race, national origin, or ancestr y. (Gov. Code, § 12940, subd. (g); Aguilar v

. Avis Rent a Car System , Inc

. (1999) 21 Cal.4th 121, 129.) The federal counterpart of the FEHA, title VII of the Civil Rights Act of 19 64 (Title VII) (42 U.S.C. § 2000e et seq.), also states that harassment in the workpla ce may give rise to a cause of action for employment 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 ( Etter ).) “Harassment includes ‘ “epithets, deroga tory comments or slurs . . . .” ’ ” ( Dee v

. Vintage Petroleum , Inc . (2003) 106 Cal. App.4th 30, 35 ( Dee ).) Not all workplace harassment will give rise to a violation of the FEHA or Title VII. The behavior must result in a hostile work environmen t that is “ ‘ “ ‘sufficiently severe or pervasive to alter the conditions of the victim ’s employment.’ ” ’ ” ( Etter , supra , 67 Cal.App.4th at p. 465,

4 In his opening brief, Polk states that one of the issues raised on appeal is whether he was constructively discharged. However, Polk never develops this argument in his brief. “ ‘[P]arties are required to include ar gument and citation to authority in their briefs, and the absence of these necessary elemen ts allows this court to treat appellant’s . . . issue as waived.’ ” ( In re Daniel M . (2003) 110 Cal.App.4th 703, 708.) Therefore, we find Polk has waived this argument on appeal.6 citing Beyda v

. City of Los Angeles (1998) 65 Cal.App.4th 511, 517.) Errant remarks or sporadic comments may not be sufficient to create a hostile work environment. ( Horn v

. Cushman & Wakefield Western , Inc

. (1999) 72 Cal.App.4th 798, 809-810.) However, “ ‘there is neither a threshold “m agic number” of harassing incide nts that gives rise . . . to liability . . . nor a number of incidents below which a plaintiff fails as a matter of law to state a claim.’ ” ( Dee , supra , at p. 36.) “[H]arassment must satisfy an objec tive and a subjective standard.” ( Hope v. California Youth Authority (2005) 134 Cal.App.4th 577, 58 8.) “Conduct that is not severe or pervasive enough to create an obj ectively hostile or abusive work environment- -an environment that a reasona ble person would find hostile or abusive--is beyond Title VII’s purview. Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim’s employment . . . .” ( Harris v

. Forklift Systems , Inc . (1993) 510 U. S. 17, 21-22.) Determining whether an environment is hostile requires looking at the totality of the circumstances, including “the frequency of th e discriminatory conduct; its severity; whether it is physically threat ening or humiliating, or a me re offensive utterance; and whether it unreasonably inte rferes with an employee’s work performance.” ( Id

. at p. 23.) Put another way, “[t]he plaintiff must prove that the defenda nt’s conduct would have interfered with a reasonable empl oyee’s work performance and would have seriously affected the psychological well-be ing of a reasonable employee and that [he] was actually offended.” ( Fisher v

. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 609-610, fn. omitted.) “The effect on th e employee’s psychological well-being is, of course, relevant to determining whether the pl aintiff found the environment abusive. But while psychological harm, like any other relevant factor, ma y be taken into account, no single factor is required.” ( Harris v

. Forklift Systems , Inc

. supra , 510 U.S. at p. 23.) Whether the offensive statement was directed at the plaintiff, or was directed at others but7 heard by the plaintiff, is also relevant. ( Lyle v

. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 285 ( Lyle ).) “An employer is strictly liable fo r harassment committed by its agents or supervisors, but is liable for harassment co mmitted by its other employees only if it fails to take immediate and appropriate correctiv e action when reasonably made aware of the situation.” ( Jones v

. Department of Corrections & Rehabilitation (2007) 152 Cal.App.4th 1367, 1377.) Summary judgment can be granted on a hostile work environment cause of action if a reasonable trier of fact c ould not find, based on the plai ntiff’s factual showing, that the harassing conduct was suffi ciently severe or pervasiv e to create a hostile work environment. ( Lyle , supra , 38 Cal.4th at p. 291.) Polk ’ s Hostile Work Environment Claim The undisputed facts regarding Polk’s text message incident are as follows: Polk never had any overt “race problem s” with any other employees at Lowe’s. Prior to his receipt of the text message, Polk did not have plainly obvio us problems with Bal; Bal had never used a racial slur against him before. Bal apologized to Polk after he sent the offensive text message. Polk reported the in cident to Nnorukam, and Bal was suspended and later terminated. Polk later said he felt ill and fearful after receiving the text message, leading to his voluntary resignation in January 2011. Polk acknowledges that “ ‘the required sh owing of severity or seriousness of the harassing conduct varies inversely with the pervasiveness or frequency of the conduct.’ [Citations.] If a single incident can ever su ffice to support a hos tile work environment claim, the incident must be extremely severe.” ( Brooks v

. City of San Mateo (9th Cir. 2000) 229 F.3d 917, 926 ( Brooks ).) Polk argues that the racial remark made by Bal, who8 was his supervisor, coupled with the physical and psychological damage he suffered, was severe enough to support a hostile work environment claim on its own. 5 Polk distinguishes between a single o ffensive act by a coemployee and a single offensive act by a supervisor like Bal. Polk maintains that a single racial epithet made by a supervisor has “such a powerfu l and violent connotation that just one instance of that remark is ‘sufficiently severe’ to cr eate a hostile environment,” citing to Dee , supra , 106 Cal.App.4th 30. Dee , however, does not stand for the pr oposition that a single racial slur is sufficient to create a triable issue of f act as to the existenc e of a hostile work environment.
In Dee , the appellate court concluded that “[ i]n many cases, a single offensive act by a coemployee is not enou gh to establish employer liability for a hostile work environment. But where that act is co mmitted by a superviso r, the result may be different.” ( Dee , supra , 106 Cal.App.4th at p. 36.) Dee noted that in Brooks , supra , 229 F.3d at page 927, footnote 9, the federal appe llate court reasoned that “ ‘a sexual assault by a supervisor, even on a single occasion, may well be sufficiently severe so as to alter the conditions of employment and give rise to a hostile work envi ronment claim.’ ” ( Dee , supra , at p. 36.)

5 Lowe’s reply brief argues that Polk is essentially asserti ng a new theory of liability on appeal. We disagree; the harm to an employee’s psycho logical welfare is a factor to be considered and is relevant to the analysis of whether the conduct alleged constitutes a hostile work enviro nment claim due to race. ( Harris v

. Forklift Systems , Inc ., supra , 510 U.S. at p. 23.) Polk is not asse rting that Lowe’s is somehow liable under a different theory of liability. Additionally, Polk’s complaint speci fically set forth the allegation that the text message from Bal cau sed Polk to become anxious, fearful, and depressed, and adversely impact ed his blood pressure. Lowe’s also argues that there is no direct evidence that Bal wa s Polk’s supervisor. However, this fact appears to be undisputed be low. Polk asserted in a deposition that Bal was his direct supervisor at Lowe’s, and allege d Bal was his supervisor in his complaint. Lowe’s did not present evidence in co ntravention to the trial court.9 Dee further stated that in ot her jurisdictions, “a single racial slur by a supervisor may also create a hostile work environment” ( Dee , supra , 106 Cal.App.4th at p. 36), citing to Rodgers v

. Western-Southern Life Ins

. Co

. (7th Cir. 1993) 12 F.3d 668, 675 ( Rodgers ). In Rodgers , the Seventh Circuit concluded th at the supervisor’s use of an unambiguous racial epithet in the presence of his subord inates “impacts the work environment far more severely than use by co-equals.” ( Rodgers , supra , at p. 675.) The Rodgers court reasoned that “[p]erhaps no single act can more quickly ‘alter the conditions of employment and create an abus ive working environment’ ” than the use of a racial slur by a supervisor in the presence of his subordinates. ( Ibid .) However, Rodgers differs from Dee and the present case in seve ral respects. Procedurally, Rodgers did not arise from the grant of summary j udgment; the appeal arose following a bench trial where the district court found the ex istence of a hostile work environment. ( Id . at p. 670.) Factually, the supervisor in Rodgers engaged in several isolated incidents that contributed to the finding by the trial cour t that there was a hostile work environment. 6 ( Id . at pp. 675-676.) More accurately, Rodgers concluded that “[i]n examining the ‘totality of circumstances’ giving rise to [t he plaintiff’s] action[s] , the district court properly considered the cumula tive weight of [the superviso r’s] several ‘isolated’ racial comments.” ( Id . at p. 675.) Additionally, contrary to Polk’s assertion, Dee itself did not hold that a supervisor’s single isolated racial slur is su fficient to create a tria ble issue regarding the existence of a hostile wo rk environment. The Dee court concluded that a supervisor’s single racial slur when coupled with other evidence , such as where the supervisor had

6 The supervisor in Rodgers used the word “ ‘nigger’ ” tw ice in the presence of the plaintiff, made a statement that “ ‘[y]ou blac k guys are too fucking dumb to be insurance agents’ ” ( Rodgers , supra , 12 F.3d at p. 675), told the pl aintiff that he was advised not to hire more African American agen ts, remarked to the plaintiff that he “ ‘must think [he’s] back in Arkansas chasing j ack rabbits,’ ” and used the ni ckname “ ‘Rabbit’ ” for the plaintiff. ( Id . at p. 676.)10 also instructed the employee to lie, used foul language against her, and berated her in the workplace, created a triable issue. ( Dee , supra , 106 Cal.App.4th at pp. 36-37.) Polk claims that the Dee court sought additional evid ence of racial harassment because it sought to establish th e supervisor’s remark as “per vasive” since the racial slur was not “unambiguous.” In this respect, Polk has misread the analysis set forth in Dee

. The Dee court concluded that the supervisor’s remark to the employee was “an ethnic slur, both abusive and hostile.” ( Dee , supra , 106 Cal.App.4th at p. 36.) The court reasoned the additional evidence that the su pervisor had abused and belittled Dee would allow a reasonable trier of fact to conclude that the racial slur was not an isolated event. ( Id . at pp. 36-37.) Unlike Dee , Polk has not presented any other incidents where Bal abused or used foul language against him. Furthermore, many courts have affirmed grants of summary judgment when the incidents of racial harassment are isolated, holding that si ngle incidents cannot be found sufficiently severe enough to sustain a cause of action for hostile work environment. In Vasquez v

. County of Los Angeles (9th Cir. 2003) 349 F.3d 634 ( Vasquez ), the federal appellate court affirmed the grant of summary judgment in favor of the employer with respect to the plaintiff’s claim of hostile work environment under Title VII. In Vasquez , the plaintiff’s supervisor made two racially de rogatory statements to the plaintiff: that the plaintiff had “ ‘a typical Hispanic macho attitude’ ” and that “ ‘Hispanics do good in the field.’ ” ( Vasquez , supra , at p. 643.) The federal appe llate court concluded that the two racially related epithets, t hough offensive, did not create a triable issue of fact as to severity or pervasiveness. ( Id . at p. 644.) Similarly, federal district courts have held that “isolated instances of offensive conduct are insufficient to create a triable is sue of fact on a hostile work environment claim.” ( Henry v

. Regents of the Univ . (N.D.Cal., Feb. 24, 2014) 2014 U.S. Dist. Lexis 23888, p. *48.) For example, a district c ourt granted summary judgment in favor of the employer even when the plaintiff alleged that his supervisor called him a “ ‘nigger’ ” on11 one occasion, criticized him constantly, and called him too slow and fat. ( Alvarado v

. Fedex Corp . (N.D.Cal., Mar. 10, 2006) 2006 U.S. Dist. Lexis 9973, pp. *47-*50.) Another district court found that a superviso r’s use of the derogatory terms “bitch” and “nigger” on two separate occa sions, possibly directed to the plaintiff, and the supervisor’s occasional derogatory comments in front of th e plaintiff’s coemployees that the plaintiff was never going to be promot ed and was not going anywhe re, was insufficient for a reasonable jury to find, subjectively and ob jectively, the existence of a hostile work environment. ( Hercules v

. Dept. of Homeland Sec . (N.D.Cal., Apr. 29, 2008, No. C-07- 0270 SBA) 2008 U.S. Dist. Lexis 35037, pp. *62-*65.) In an analogous case c oncerning a hostile work environment due to gender discrimination, the federal appellate court in Kortan v

. California Youth Authority (9th Cir. 2000) 217 F.3d 1104 ( Kortan ) held that isolated statem ents made by a supervisor may not give rise to a triable issue of material fact. In Kortan , a female employee filed suit against her employer after a supervisor made several offensive statements against women, calling a former female employee a “ ‘castrating bitch,’ ” “ ‘madonna,’ ” and “ ‘regina.’ ” ( Id . at p. 1110.) Kortan argued that whether a reasonable woman would have found these statements abusive was an issue of fact for the jury to decide. However, the federal appellate court affirmed summary judgment for the employer after considering the circumstances surrounding the statements , including the fact that the offensive conduct was concentrated on on e occasion. The federal court therefore held that there was no triable issue as to whether the conduct was severe or abusive enough to create a hostile work environment. 7 ( Kortan , supra , at p. 1111.)

7 Similarly, in sexual harassment hostile work environment claims, a “single incident must be severe in the extreme a nd generally must include either physical violence or the threat thereof” in order to create a triable issue of material fact. ( Herberg
v
. California Institute of the Arts (2002) 101 Cal.App.4th 142, 1 51.) Indeed, courts have found that “even unwelcome sexu al touching is insufficient to constitute severe pervasive (continued)12 Despite the lack of cases to support his proposition, Polk insists that the federal appellate court in Brooks held that a single act by a supe rvisor against an employee may be “sufficiently severe so as to alter the conditions of employment and give rise to a hostile work environment claim.” ( Brooks , supra , 229 F.3d at p. 927, fn. 9.) This footnote in Brooks , however, is merely dicta and was not its holding; Brooks concerned the alleged sexual harassment committed by a coemployee against another employee, not a supervisor against an employee. “The hold ing of a decision is limited by the facts of the case being decided, notwithstanding the us e of overly broad lang uage by the court in stating the issue before it or its holding or in its reasoning.” ( McGee v

. Superior Court (1985) 176 Cal.App.3d 221, 226 .) Aside from the dicta in Brooks , Polk has not cited to and we have not found any cases concluding that a single racial epithet from a supervisor can be severe enough to constitu te a hostile work environment. Here, Bal’s reference to Polk as a “nigg a” is indisputably an ethnic slur that is abusive and hostile. “It is beyond question th at the use of the word ‘nigger’ is highly offensive and demeaning, evoking a hist ory of racial violence, brutality, and subordination.” ( McGinest v

. GTE Service Corp . (9th Cir. 2004) 360 F.3d 1103, 1116.) However, based on the undisputed facts, the use of the racial slur was an isolated event. 8 It is also undisputed that Bal apologized afte r Polk read the text, cried while apologizing, and never worked with Polk again.

harassment when the incidents are isolated and th ere is no violence or threat of violence.” ( Id . at p. 153.) 8 In his opposition to the motion for summa ry judgment, Polk alleged that there were other incidents of racial discrimination and evidence th at other employees had used racially offensive epithets in the break room at Lowe’s. However, these facts were not pleaded in the complaint. Fu rthermore, the evidentiary base s for these assertions were deemed inadmissible by the trial court. Polk did not appeal these evidentiary rulings on appeal and we are therefore obligated to exclude the items on our review.13 In his deposition, Polk stated he felt ill after the incident and suffered severe psychological harm. However, this eviden ce goes toward the subjective, not the objective, component of a claim of hara ssment. Based on the totality of the circumstances, we find that there is no reasona ble trier of fact that could conclude the isolated text message was severe enough to cr eate an objectively abusive or hostile work environment for a reasonable empl oyee of Polk’s ethnicity. ( Lyle , supra , 38 Cal.4th at p. 291.) “Simply causing an employee offense based on an isolated comment is not sufficient to create actionable harassment . . . .” ( McGinest v

. GTE Service Corp ., supra , 360 F.3d at p. 1113.) Polk maintains that it can be inferred that Bal intended to send the racially offensive text message to Peri, the store ma nager, which would have drastically altered his employment at Lowe’s. However, this assertion is based merely on Polk’s observation that Bal and Peri were friendl y toward each other, and his belief that someone in Peri’s role would be concerned with the contents of the text message. Such speculation cannot create a triable issue. ( Joseph E

. Di Loreto , Inc

. v
. O ’ Neill (1991) 1 Cal.App.4th 149, 161 [“When opposition to a motion for summa ry judgment is based on inferences, those inferences must be reas onably deducible from the evidence, and not such as are derived from speculation, c onjecture, imagination, or guesswork.”].) Other Evidence of Harassment In the alternative, Polk co ntends that there is ample ev idence in the record of other acts of harassment (changes to his schedule, assignment to menial tasks, and Bal and Peri’s demeanor toward him) that support a hostile work environment claim. He argues the trial court erred in failing to consider thes e additional incidents. Indeed, in its order granting summary judgment the trial court noted that these assertions were outside the scope of the pleadings. It appears the trial court correctly de termined that Polk’s additional factual assertions were outside the scope of the pleadings, because he did not allege these14 additional instances of supposed racial harass ment in his complaint. “[A] ‘defendant moving for summary judgment need address only the issues raised by the complaint; the plaintiff cannot bring up new, un pleaded issues in his or her opposing papers.’ [Citation.] ‘To create a triable issue of material fact, the opposition evidence mu st be directed to issues raised by the pleadings . [Citation.] If the opposing party’s evidence would show some factual assertion, legal theory, defense or claim not yet pleaded, that party should seek leave to amend the pleadings before the hearing on the su mmary judgment motion.’ ” ( Laabs v

. City of Victorville (2008) 163 Cal.App.4t h 1242, 1253.) Polk’s complaint on ly alleged harassment on the basis that he was subjected to unwanted racial slurs at work, specifically the text message sent by Bal. He did not allege Peri treated him adve rsely or Bal harassed him in any other way. When moving for summary judgment Lowe’s was only required to address the allegations contained in the complaint, which it did by demonstrating that a single in cident of harassment cannot be severe enough to sustain a cause of action for a hostile work environment. Furthermore, even if we were to consid er Polk’s additional allegations, we would still conclude that his cause of action for a hostile work environmen t fails. Many of his supplementary factual assertions rely on evid ence that we cannot consider because they were excluded by the trial court below (his alleged assignment to petty jobs and menial tasks), and Polk does not appe al these evidentiary rulings. 9 ( California Bank & Trust v

. Lawlor (2013) 222 Cal.App. 4th 625, 637.) Additionally, some of his arguments are unsupported. There is no evidence that any scheduling change made by Lowe’s wa s the result of racial harassment. “ ‘[C]ommonly necessary personnel management ac tions such as hiring and firing, job or project assignments, office or work station assignments . . . and the like, do not come

9 These assertions were sole ly supported by a paragraph in his declaration that the trial court deemed inadmissible.15 within the meaning of harassment.’ ” ( Reno v

. Baird (1998) 18 Cal.4th 640, 646-647.) And, Polk’s allegation that Bal and Peri were not friendly towa rd him is also not actionable. “[A]n employer cannot force employe es to socialize with one another . . . .” ( Brooks , supra , 229 F.3d at p. 929.) Accordingly, after considering the totality of the circumstances, we conclude a reasonable jury would not be able to find, based on the undisputed facts, that the harassment alleged by Polk was sufficiently se vere or pervasive to constitute a hostile work environment due to race. D ISPOSITION The judgment is affirmed. Lowe’s is entitled to its costs on appeal.Premo, J.

WE CONCUR:

Rushing, P.J.

Elia, J.