Serri v. Santa Clara University

Facts

The Fair Employment and Housing Act makes it an “unlawful employment practice” for an employer to harass an employee “because of” a protected characteristic. Government Code section 12940, subdivision (j), as the court read it here, “defines ‘unlawful employment practice’ to include harassment in the workplace based on national origin, sex, and age.” (Serri, supra, 226 Cal.App.4th at p. 869.) The published portions of the opinion frame harassment by contrast with discrimination under section 12940, subdivision (a), which “prohibit[s] employers from discriminating against employees on the basis of race, sex, or ethnic origin.” (Id. at p. 860.) The case turns on which side of that statutory line a supervisor’s managerial conduct falls.

Conchita Franco Serri, who is Puerto Rican and was 54 years old when she was terminated, worked for the University as its director of affirmative action from late 1992 until March 2007. (Serri, supra, 226 Cal.App.4th at p. 838.) Her duties included investigating discrimination complaints under the University’s “Policy 311,” providing sexual-harassment training, and — central to the case — “preparing the University’s annual ‘Affirmative Action Plan,’” a report federal regulations required of the University as a federal contractor and that Serri herself called “‘pivotal and essential for us for obtaining and retaining federal grants.’” (Ibid.)

Serri reported directly to University president Father Paul Locatelli for years; in April 2006 the reporting relationship changed so that she reported to assistant vice-president of human resources Molly McDonald, with a “‘dotted-line’” monthly update to Father Locatelli, who reassured Serri the change “was not a demotion.” (Serri, supra, 226 Cal.App.4th at pp. 839–840.) That June, the University adjusted Serri’s salary upward and, the same day, Serri lodged a Policy 311 complaint alleging gender discrimination and an Equal Pay Act violation; an independent investigator found the claims meritless and the board affirmed. (Id. at pp. 840–841.) In early October 2006 Serri filed discrimination and retaliation claims with the DFEH and EEOC. (Id. at p. 843.)

On October 10, 2006, Serri disclosed for the first time that the University “‘had not had a defensible Affirmative Action Plan’ for several years.” (Serri, supra, 226 Cal.App.4th at p. 843.) It was undisputed that she had not prepared the narrative portion of the Plan — the part she personally authored — for three years, and that she created the two draft Plans she produced for an October 13 meeting “the day before the meeting.” (Id. at pp. 843–844.) On October 19, McDonald reassigned the current Plan to herself. (Id. at p. 845.) McDonald continued to have an in-house attorney, Julie Veit, attend her meetings with Serri — over Serri’s objection — because McDonald “believed ‘it was important to have another person present … in light of past disagreements about what had transpired in earlier discussions.’” (Ibid.) After two independent investigations cleared the University of Serri’s claims, vice-president Robert Warren terminated Serri on March 7, 2007, for failing to prepare the Plans, failing to disclose their nonexistence, and making “‘misrepresentations related to the Affirmative Action Plans.’” (Id. at pp. 845–846.)

Serri’s harassment cause of action — the eleventh — alleged that Father Locatelli, McDonald, and Veit harassed her on account of national origin, age, and sex by “falsely accusing her of lying, not performing her job, and being incompetent,” by “continually and repeatedly questioning her honesty,” and by “insisting that Veit sit in and make a record of all of McDonald’s meetings with Serri.” (Serri, supra, 226 Cal.App.4th at p. 869 & fn. 19.) She also pointed to scattered remarks: Father Locatelli’s comments that her shawl “looked like a poncho” and that he preferred her hair “‘blew … dry,’” and a 2000 remark by a facilities employee that her prospective new office had “‘nice places to eat around here,’” which she understood to reference a taqueria. (Id. at pp. 867, 871.)

Procedural history

Serri filed suit in June 2007; the operative fourth amended complaint pleaded eleven causes of action, including employment discrimination, tortious discharge, FEHA retaliation, breach of an implied employment contract, breach of the implied covenant, and the FEHA harassment claim against the University, Father Locatelli, McDonald, and Veit. (Serri, supra, 226 Cal.App.4th at pp. 847–848.) The defendants moved for summary judgment or, alternatively, summary adjudication of each cause of action. (Id. at p. 848.) The trial court, Judge Mark H. Pierce presiding, granted the motions, found the University had legitimate, nondiscriminatory reasons for the termination, and concluded that even assuming all of Serri’s evidence were admissible “‘it would not impact and/or change any of the rulings.’” (Id. at pp. 849–850.)

Serri appealed. In the published portions of the opinion, the Court of Appeal, Sixth Appellate District, affirmed in an opinion by Justice Márquez, with Presiding Justice Rushing and Justice Elia concurring; there was no separate concurrence or dissent. (Serri, supra, 226 Cal.App.4th at pp. 837, 875.) Because the opinion is certified for publication only in part, this analysis rests on the published portions — including part IV.F, which decides the harassment claim — and does not rely on the unpublished parts (I., II., IV.G., IV.I., IV.J., and IV.K.). The California Supreme Court denied review on September 17, 2014. (Id. at p. 875.)

Issue

The published harassment question was whether the conduct Serri identified — a supervisor’s accusations that she was dishonest and not performing, and a supervisor’s decisions about who would attend and document her meetings — constitutes actionable harassment under section 12940, subdivision (j), or instead falls within the category of “commonly necessary personnel management actions” that, under Reno v. Baird and Janken v. GM Hughes Electronics, “do not come within the meaning of harassment” even when discriminatory. (Serri, supra, 226 Cal.App.4th at pp. 869–870.) A subsidiary question was whether the stray ethnic and personal remarks Serri cited were “sufficiently severe or pervasive” to alter the conditions of her employment. (Id. at p. 870.) Other published parts asked whether after-acquired expert evidence that the failure to perform caused no harm creates a triable issue on pretext (it does not), and whether the University had good cause to terminate. (Id. at pp. 837–838, 872.) Review was de novo, with the evidence viewed in the light most favorable to Serri. (Id. at pp. 858–859.)

Holding

Reasoning

The court anchored the analysis in the statutory line between discrimination and harassment. Quoting Rehmani v. Superior Court, which in turn drew on Reno v. Baird and Roby v. McKesson Corp., the court explained that harassment “‘can take the form of “discriminatory intimidation, ridicule and insult”’” that is severe or pervasive, and that “‘harassing conduct takes place “outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives.”’” (Serri, supra, 226 Cal.App.4th at p. 869, quoting Reno v. Baird (1998) 18 Cal.4th 640, 646.) Harassment thus “‘focuses on situations in which the social environment of the workplace becomes intolerable because the harassment … communicates an offensive message to the harassed employee.’” (Ibid., quoting Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 706.) That framing matters: it tells the reader at the outset that the inquiry is not whether the supervisor’s motive was benign, but whether the conduct itself is the kind of interpersonal abuse the statute targets.

It then restated the core doctrinal distinction: discrimination is biased official action; harassment is biased interpersonal conduct. “‘[D]iscrimination refers to bias in the exercise of official actions on behalf of the employer, and harassment refers to bias that is expressed or communicated through interpersonal relations in the workplace.’” (Serri, supra, 226 Cal.App.4th at p. 869, quoting Roby, supra, 47 Cal.4th at p. 707.) Quoting Reno v. Baird‘s adoption of Janken, the court emphasized the asymmetry that makes the line workable: a supervisor can always “‘insulate himself or herself from claims of harassment by refraining from’” slurs, derogatory drawings, and the like, because such conduct is never necessary to the job — but “‘[a]n individual supervisory employee cannot … refrain from engaging in the type of conduct which could later give rise to a discrimination claim,’” because “‘[m]aking personnel decisions is an inherent and unavoidable part of the supervisory function.’” (Id. at pp. 869–870, quoting Reno v. Baird, supra, 18 Cal.4th at p. 646.) This is the engine of the rule: harassment can be avoided; personnel management cannot, so the law channels biased management into the discrimination remedy.

The court catalogued the personnel actions that, as a matter of law, are not harassment. Quoting Reno v. Baird at length, it listed the management functions the Legislature meant to exclude: “‘commonly necessary personnel management actions such as hiring and firing, job or project assignments, office or work station assignments, promotion or demotion, performance evaluations, the provision of support, the assignment or nonassignment of supervisory functions, deciding who will and who will not attend meetings, deciding who will be laid off, and the like, do not come within the meaning of harassment.’” (Serri, supra, 226 Cal.App.4th at p. 870, quoting Reno v. Baird, supra, 18 Cal.4th at pp. 646–647.) Such actions “‘may retrospectively be found discriminatory if based on improper motives, but in that event the remedies … are those for discrimination, not harassment.’” (Ibid.) The inclusion of “‘deciding who will and who will not attend meetings’” in that catalogue was decisive, because it described precisely what Serri complained of.

Applying the rule to McDonald and Veit, the court found their conduct was quintessential management. Both declared they made no hostile or derogatory statements about Serri’s protected status, and Serri’s separate-statement “disputes” cited “none of the evidence” that created a triable issue on harassment. (Serri, supra, 226 Cal.App.4th at p. 871.) The court reasoned that “[t]he conduct Serri complains of involves McDonald’s decisions about who would attend her meetings with Serri and how those meetings were conducted.” (Ibid.) Measured against the statute, that conduct was managerial: “As Reno v. Baird instructs, while these allegations may involve discrimination (a claim we have already concluded has no merit), they are not harassment.” (Ibid.) The accusations that Serri was a liar and could not be trusted — being inseparable from the supervisors’ assessment of her job performance — likewise fell outside the harassment category and into the (already-rejected) discrimination theory.

The court applied the severe-or-pervasive standard to the stray remarks and found them deficient on both axes. For the harassment claim against Father Locatelli, the only evidence was a handful of comments: a facilities employee’s 2000 remark about “‘nice places to eat,’” and Father Locatelli’s statements about Serri’s hairstyle and her poncho-like shawl. (Serri, supra, 226 Cal.App.4th at p. 871.) Whether conduct is “sufficiently severe or pervasive … depends on the totality of the circumstances,” including frequency, severity, and whether it would interfere with a reasonable employee’s work and “‘seriously affect[] the psychological well-being of a reasonable employee.’” (Id. at p. 870, quoting Rehmani, supra, 204 Cal.App.4th at pp. 951–952.) These remarks failed the severity prong — they were not “derogatory or offensive” — and failed the pervasiveness prong because, “made over the course of six years,” they “were not so pervasive as to support a claim for harassment.” (Id. at p. 871.) The court thus disposed of the harassment claim on two independent grounds: the core conduct was non-actionable management, and what remained was too trivial and too sparse.

In a parallel published holding, the court rejected Serri’s after-acquired no-harm theory of pretext. Serri opposed summary judgment with a 2011 expert declaration opining that the missing Affirmative Action Plan would have caused “‘no sanctions, fines or adverse consequences’” to the University. (Serri, supra, 226 Cal.App.4th at p. 864.) The court held that “after-acquired expert evidence that there were no adverse consequences from an employee’s failure to perform does not create a triable issue of fact on the question whether the employee failed to perform … and thus has limited relevance, if any, to the question of discrimination.” (Id. at p. 837.) The decisive point was timing and knowledge: the declaration “was prepared … more than four years after Serri was terminated,” and Serri pointed to no evidence “that anyone at the University knew that the lack of an AAP would allegedly not result in adverse consequences” at the time — indeed, she herself had warned the University the Plan was “indefensible” and an audit likely. (Id. at pp. 865–866.) Temporal proximity between her DFEH filings and her termination, “without more,” was likewise insufficient to show pretext on the retaliation claim. (Id. at p. 868.)

The good-cause analysis reinforced the deference owed to managerial judgment about a high-ranking employee. Applying Cotran v. Rollins Hudig Hall Internat., Inc., the court held the University had good cause to terminate because it acted on “‘fair and honest reasons,’” after appropriate investigation, with reasonable grounds to believe Serri engaged in gross misconduct. (Serri, supra, 226 Cal.App.4th at pp. 872–874.) Even assuming a triable issue on whether the failure to prepare Plans was “gross misconduct,” that did “not create a triable issue on the question whether she misrepresented the existence of the AAP’s” — a ground “sufficient by itself.” (Id. at p. 875.) Citing Cotran, the court underscored that where “‘the employee occupies a sensitive managerial or confidential position, the employer must of necessity be allowed substantial scope for the exercise of subjective judgment.’” (Id. at p. 874.) The covenant claim fell with the contract claim. (Id. at p. 875.)

Significance

Serri is a clean, citable application of the discrimination/harassment dividing line that runs from Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55 through the Supreme Court’s adoption of Janken in Reno v. Baird (1998) 18 Cal.4th 640 and its refinement in Roby v. McKesson Corp. (2009) 47 Cal.4th 686. Its doctrinal contribution is narrow but practically valuable: it confirms that a supervisor’s decision about who attends an employee’s meetings and how they are conducted — including the insistence that a witness document those meetings — is squarely within the Reno v. Baird catalogue of management functions that “do not come within the meaning of harassment,” even when the employee frames the conduct as intimidation and humiliation. (Serri, supra, 226 Cal.App.4th at pp. 870–871.) It is, in short, a textbook illustration for CACI No. 2523, which instructs that a supervisor’s making of personnel-management decisions is not, without more, harassing conduct.

The opinion also matters for what it does not blur. Roby had cautioned that personnel actions can supply circumstantial evidence of a hostile environment and can themselves convey a hostile message; Serri does not retreat from that nuance, but it makes clear that where the personnel conduct is the entirety of the harassment theory and is unaccompanied by the kind of demeaning interpersonal conduct Janken describes, summary judgment is proper. The court was careful to say the meeting decisions “may involve discrimination” — a claim it had already rejected — but “are not harassment,” preserving the analytic separation rather than collapsing the two torts. (Serri, supra, 226 Cal.App.4th at p. 871.) Finally, the published after-acquired-evidence holding adds a discrete, often-cited rule: a plaintiff cannot manufacture pretext with a litigation expert’s hindsight that the underperformance turned out to be harmless. (Id. at pp. 837–838, 865–866.)

Key quotes

“‘[D]iscrimination refers to bias in the exercise of official actions on behalf of the employer, and harassment refers to bias that is expressed or communicated through interpersonal relations in the workplace.’ … ‘Making personnel decisions is an inherent and unavoidable part of the supervisory function. Without making personnel decisions, a supervisory employee simply cannot perform his or her job duties.’” (Serri, supra, 226 Cal.App.4th at pp. 869–870.)

“The conduct Serri complains of involves McDonald’s decisions about who would attend her meetings with Serri and how those meetings were conducted. As Reno v. Baird instructs, while these allegations may involve discrimination (a claim we have already concluded has no merit), they are not harassment.” (Id. at p. 871.)

“[A]fter-acquired expert evidence that there were no adverse consequences from an employee’s failure to perform does not create a triable issue of fact on the question whether the employee failed to perform his or her job duties and thus has limited relevance, if any, to the question of discrimination.” (Id. at p. 837.)

Read the full opinion (Justia) →

Practice pointer

Open questions

The published harassment ruling resolves the case before it but leaves the harder line-drawing for another day. Serri holds that meeting-attendance and meeting-conduct decisions are personnel management, but it does not map the boundary Roby v. McKesson Corp. identified — when a pattern of facially managerial acts, executed in a demeaning manner, crosses from circumstantial evidence of discrimination into a communicative “hostile message” that is itself harassment. (Serri, supra, 226 Cal.App.4th at pp. 869, 871.) The court did not need to confront that gradation because Serri’s record contained “no evidence” of demeaning execution, so how much hostility must accompany an otherwise managerial act to make it harassment remains open after Serri.

The opinion also does not decide how its rule interacts with FEHA’s individual-liability scheme: harassment may be charged against individual supervisors, while discrimination generally may not, and Serri resolves the claims against McDonald, Veit, and Father Locatelli on the ground that their conduct “‘[was] not harassment’” without separately parsing individual exposure. (Serri, supra, 226 Cal.App.4th at p. 871.) Whether the same conduct could ever expose an individual where the entity escapes — or vice versa — is not addressed. Finally, the after-acquired no-harm holding leaves open how it applies where the employer’s stated reason is the very harm the expert later disputes (rather than, as here, the employee’s failure to perform a required task that the employee herself had flagged as risky). The court expressly confined its holding to evidence of “no adverse consequences from an employee’s failure to perform,” reserving cases in which causation of harm is itself the disputed performance question. (Id. at pp. 837–838.)