Guthrey v. State of California

Facts

The opinion opens with an unusually blunt editorial frame: “Anyone who has ever worked in an office or, for that matter, been a schoolchild on the playground knows that petty differences arise which cannot always be resolved without hurt feelings. Does that mean that these festering disputes in the workplace should find their way into the courts for resolution? Absolutely not.” (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1110.)

Raymond Guthrey, a male, was hired as a Correctional Counselor I by the California Department of Corrections (CDC) in November 1986 and consistently “met or exceeded the expected standards of job performance.” On June 28, 1993, he was assigned to the Sierra Conservation Center (SCC) in Jamestown as a camp counselor, sharing an office with three other counselors — one man and two women — supervised by Loreen Lucas; Robert Shelton was the camp program administrator and Lucas’s supervisor. (Guthrey, supra, 63 Cal.App.4th at p. 1113.) Lucas “implemented routine procedures and policies for her employees which were applied equally to men and women in the office”: open office doors, sign-outs before leaving, and a time clock for employees who flexed their hours. (Ibid.) Guthrey’s grievances were of the same order — being made to keep his door open and desk visible, being forbidden to put his feet on his desk, and having to use overhead lighting. (Id. at pp. 1110–1111, 1117 and fn. 3.)

The flashpoint was a November 1993 trip to a conservation camp in Bishop. Guthrey had been told a three-day travel plan was approved only if the mountain passes were closed and that he was to check with Caltrans first; he admitted he never called Caltrans, that the weather was clear and warm, and that he took the longer three-day route anyway, staying overnight in Minden, Nevada. (Guthrey, supra, 63 Cal.App.4th at pp. 1113, 1117.) While off duty he played Keno in the hotel casino; he falsely reported his check-in time to Lucas and “admitted in his deposition . . . that he falsified his time sheets for November 2 and 3, 1993, and did not work the amount of time he reported.” (Id. at p. 1117.) After Guthrey filed a report containing false statements, Lucas wrote a memorandum to Associate Warden Heise requesting a formal investigation; Heise recommended it and Warden Ingle authorized it. (Id. at pp. 1113, 1118–1119.) A January 14, 1994 investigative report found eight serious violations, including insubordination and dishonesty; the warden’s March 4, 1994 notice of adverse action imposed a five percent pay cut for six months, reduced after a Skelly hearing to a letter of reprimand. (Id. at pp. 1113–1114.) Notably, “[p]laintiff does not claim the internal investigation was handled in a discriminatory manner.” (Id. at p. 1114.)

Immediately after his investigatory interview on December 22, 1993, Guthrey left work on stress leave; on December 26, 1993, he filed his first complaint alleging gender discrimination, which CDC denied for insufficient evidence and the State Personnel Board rejected on appeal. Even after the letter of reprimand, “CDC continued to need his services as a camp counselor.” (Guthrey, supra, 63 Cal.App.4th at p. 1114.)

Procedural history

On November 2, 1994, Guthrey filed a verified complaint for discipline in violation of public policy, employment discrimination, slander, and two counts of invasion of privacy against the State, CDC, SCC, CDC’s director, and six individual employees — what the court called a “kitchen sink” approach naming “nearly every employee who ever came close to the alleged grievances.” (Guthrey, supra, 63 Cal.App.4th at pp. 1111–1112.) A demurrer was sustained with leave to amend on all causes of action except employment discrimination for failure to exhaust under the Tort Claims Act; no amended complaint was filed, and Guthrey voluntarily dismissed five individual defendants with prejudice. (Id. at p. 1112.) The remaining defendants moved for summary judgment on August 28, 1995. The trial court granted the motion, “finding that plaintiff failed to present any admissible evidence to dispute the defendants’ referenced facts,” and, at defendants’ request, specifically ruled on their objections to Guthrey’s proffered evidence. (Ibid.) Judgment was entered December 12, 1995; on June 3, 1996, the court granted defendants’ motion for attorney fees. (Id. at pp. 1112–1113.) The fee appeal was consolidated with the merits appeal, and the Fifth District affirmed across the board, remanding only to set the amount of appellate fees. (Id. at pp. 1113, 1127.)

Issue

Three questions, answered in the published portions of the opinion: (1) whether Guthrey preserved any appellate challenge to the summary judgment when his briefs asserted “a plethora of admissible evidence” but cited essentially none of it in the record; (2) whether the record contained specific, admissible evidence raising a triable issue on gender discrimination, hostile-environment harassment, or retaliation — or instead only conclusions, perceptions, and inadmissible declarations; and (3) whether the defense was entitled to attorney fees, in the trial court and on appeal, on the ground the action was frivolous. (Guthrey, supra, 63 Cal.App.4th at pp. 1114–1116, 1126.)

Holding

Reasoning

Appellate waiver: record citations are counsel’s job. The court first disposed of the appeal on briefing grounds. “The reviewing court is not required to make an independent, unassisted study of the record in search of error or grounds to support the judgment”; it “is the duty of counsel to refer the reviewing court to the portion of the record which supports appellant’s contentions on appeal,” and where no citation “is furnished on a particular point, the court may treat it as waived.” (Guthrey, supra, 63 Cal.App.4th at p. 1115, quoting 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, §§ 589, 594.) Guthrey’s briefs claimed “a plethora of admissible evidence,” yet the cited pages of his own opening brief contained exactly one record citation — to a footnote in the defendants’ points and authorities. (Ibid.) At oral argument counsel compounded the problem with “liberal and inappropriate references to numerous documents and witness declarations, none of which were admitted as evidence.” (Id. at p. 1115, fn. 2.) Quoting People v. Dougherty (1982) 138 Cal.App.3d 278, 283, the court observed that “‘”[i]nstead of a fair and sincere effort to show that the trial court was wrong, appellant’s brief is a mere challenge to respondents to prove that the court was right,”‘” and deemed the contention waived. (Id. at pp. 1115–1116.)

The admissibility rulebook. Because the fee issues required a merits review anyway, the court laid out the evidentiary law that governs oppositions — the passage for which Guthrey is most often cited. “A motion for summary judgment must be decided on admissible evidence in the form of affidavits, declarations, admissions, answers to interrogatories, depositions and matters of which judicial notice may be taken.” (Guthrey, supra, 63 Cal.App.4th at pp. 1119–1120, citing Hayman v. Block (1986) 176 Cal.App.3d 629, 638.) Quoting Hayman: “Personal knowledge and competency must be shown in the supporting and opposing affidavits and declarations. [Citations.] [¶] The affidavits must cite evidentiary facts, not legal conclusions or ‘ultimate’ facts. [Citation.] [¶] Matters which would be excluded under the rules of evidence if proffered by a witness in a trial as hearsay, conclusions or impermissible opinions, must be disregarded in supporting affidavits.” (Id. at p. 1120.) Three corollaries did the dispositive work. First, the coworker declarations Guthrey offered (from three fellow employees) “contained conclusory assertions that they had been discriminated against, with no specific facts to support them,” said nothing specific about Guthrey, and were properly excluded as “purely conclusional and based on opinion, not facts” — and Guthrey did not even argue the objections were wrongly sustained. (Id. at p. 1119.) Second, “[a] party cannot evade summary judgment by submitting a declaration contradicting his own prior deposition testimony” (id. at p. 1120, citing D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21–22): “[a]dmissions or concessions made during the course of discovery govern and control over contrary declarations lodged at a hearing on a motion for summary judgment.” (Ibid., quoting Visueta v. General Motors Corp. (1991) 234 Cal.App.3d 1609, 1613.) Third, documents must be authenticated: the two female coworkers’ time sheets Guthrey referenced “were not properly authenticated for evidentiary purposes” and, as confidential peace officer records, were “inadmissible hearsay.” (Id. at p. 1121 and fn. 5.) The court walked paragraph by paragraph through Guthrey’s own declaration — “I was given a Letter of Reprimand, harassed, and subjected to a hostile work environment due to my gender” — and found conclusion after conclusion with “[n]o facts” in support, plus statements barred by collateral estoppel because the underlying discipline had been adjudicated administratively against him. (Id. at pp. 1120–1121, citing Knickerbocker v. City of Stockton (1988) 199 Cal.App.3d 235, 242–244.)

Perception is not proof: the gender-inference gap. On the substance, the court accepted that Lucas’s closed-door confrontation over the Bishop trip — “very aggressive, and she was real red in her face,” in Guthrey’s telling — “might raise a question of fact whether Lucas’s aggression reached the level of unwarranted hostility or whether her inquiry was completely appropriate. Either way, nothing suggests Lucas handled the matter the way she did because of plaintiff’s gender.” (Guthrey, supra, 63 Cal.App.4th at p. 1118.) Then the sentence quoted in hundreds of later oppositions and replies: “The mere fact Lucas is a female and plaintiff a male does not give rise to the inference that her alleged aggressive conduct was motivated by a desire to discriminate on the basis of gender. Without some evidence to make such an inference a reasonable one, it is mere speculation to suspect gender discrimination led to Lucas’s allegedly hostile conduct. Speculation is insufficient.” (Ibid., citing Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1009.) “The plaintiff must produce evidence which permits an inference of illegal intentional discrimination.” (Ibid., quoting Heard v. Lockheed Missiles & Space Co. (1996) 44 Cal.App.4th 1735, 1755.) Guthrey’s deposition made the gap unbridgeable: he “admitted in his deposition that he had no evidence Lucas treated him less favorably than a female under comparable circumstances” (id. at p. 1121), and when pressed on specifics — the lighting rule, the feet-on-the-desk admonition, Lucas moving her office — his answers reduced to “[t]hat was my perception” and “It’s my perception. I could wear pants and put my feet up there, and she couldn’t. That is my perception.” (Id. at pp. 1121–1122.) Undisputed evidence showed the office rules “were applied equally to men and women,” and Guthrey himself admitted they “did not amount to sexual discrimination.” (Id. at p. 1117.)

Harassment law: pervasiveness, not petty friction. The court measured the harassment theory against Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 608: the plaintiff must show membership in a protected group, unwelcome harassment, harassment “based on sex,” harassment “sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment,” and respondeat superior. (Guthrey, supra, 63 Cal.App.4th at pp. 1122–1123.) “To be sufficiently pervasive harassment, the acts complained of cannot be isolated or trivial. Rather, there must be a pattern of harassment of a routine or generalized nature.” (Id. at p. 1123, citing Fisher, supra, at p. 610.) The opinion then reproduces Fisher‘s survey of federal and FEHC authority contrasting environments of “continuous, pervasive harassment” — daily demands for sexual favors, constant vulgar abuse — with “isolated instances” held insufficient. (Id. at pp. 1123–1124.) Against that landscape, the conclusion was unsparing: “plaintiff’s lawsuit for sexual or gender-based harassment founded on the trivial and occasional acts alleged by him, none of which are alleged to be sexual in nature and all of which are objectively gender-neutral, is frivolous.” (Id. at p. 1124.)

Retaliation: sequence and substance both fail. Quoting Fisher again, the court stated the prima facie elements: protected activity, adverse employment action, and “a causal link between the two.” (Guthrey, supra, 63 Cal.App.4th at p. 1125, quoting Fisher, supra, 214 Cal.App.3d at p. 614.) Guthrey’s protected activity — the December 26, 1993 discrimination complaint — came “after his misconduct investigation was well under way,” undercutting causation from the start. (Ibid.) His claimed adverse actions dissolved on the record: he complained he received no “interest letters” for a promotion, yet admitted he had received 150 such letters and had stopped responding after the reprimand; he asserted he had received no performance rating since December 1993, but the record showed he had; and he was not entitled to notices for a “limited term” position for which he had declined certification, while one vacancy was simply posted at his own facility. (Id. at pp. 1125–1126.) “Stated briefly, there is no evidence to support plaintiff’s claim of discrimination on the grounds of retaliation. Thus, this claim is also baseless.” (Id. at p. 1126.)

Fees: the FEHA cuts both ways when a case is frivolous. Having found every claim frivolous, the court held defendants entitled to attorney fees under Government Code section 12965 for defending the appeal — “[h]e has presented no issue in this appeal which has any arguable merit” — and remanded for the amount. (Guthrey, supra, 63 Cal.App.4th at p. 1126.) The court aimed its closing words at the bar: “Attorneys bear a responsibility to their clients to advise them when a case is frivolous,” noting that after the plaintiff’s deposition “it should have been clear to his counsel that he had no case of arguable merit,” and that the court had “pondered” — but in the interest of judicial economy declined to pursue — sanctions against counsel personally. (Id. at pp. 1126–1127.) The opinion was published, the panel explained at the outset, “simply to alert the bar of the serious consequences to the plaintiff, and perhaps to his or her counsel . . . which might attend the filing and prosecution of employment discrimination cases that are obviously baseless.” (Id. at pp. 1111–1112.)

Significance

Guthrey endures because it collects, in one opinion, the evidentiary rules that decide most summary judgment fights in practice: admissible evidence only; personal knowledge and foundation; evidentiary facts rather than conclusions or “ultimate facts”; authentication; the D’Amico rule that deposition admissions control over a later self-correcting declaration; and the principle that a plaintiff’s subjective “perception” of discriminatory motive is speculation, not evidence. Those holdings slot directly into the framework the Supreme Court later formalized in Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, and they are why Guthrey appears in virtually every employer’s moving papers. The counterweight came a decade later in Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, which condemned the reflexive, boilerplate use of evidentiary objections as a defense litigation tactic — the two cases now bracket the field, Guthrey policing sloppy oppositions and Nazir policing weaponized objections.

Two of Guthrey‘s substantive holdings must be read against later law. First, its harassment analysis — that acts “cannot be isolated or trivial” and must form “a pattern of harassment of a routine or generalized nature” (63 Cal.App.4th at p. 1123) — predates the Legislature’s 2019 declarations in Government Code section 12923, which direct that a single incident may suffice if it unreasonably interferes with work or creates an intimidating environment, and that harassment cases are “rarely appropriate for disposition on summary judgment.” Guthrey‘s facts — office rules applied equally to both sexes, with no gender-based content at all — would likely fail even under section 12923, but its pervasiveness rhetoric should no longer be quoted as the governing standard. Second, its fee holding operates within the asymmetric standard the Supreme Court confirmed in Williams v. Chino Valley Independent Fire District (2015) 61 Cal.4th 97: a prevailing FEHA defendant recovers fees only where the action was frivolous, unreasonable, or groundless. Guthrey is the cautionary example of a case that met that demanding test — the court found the claims “obviously baseless” from the plaintiff’s own deposition (63 Cal.App.4th at pp. 1111–1112, 1126) — and it remains the citation of choice when employers seek, and plaintiffs resist, FEHA fee-shifting. On the retaliation side, its prima facie formulation from Fisher was later refined by Yanowitz v. L’Oréal USA, Inc. (2005) 36 Cal.4th 1028, which supplies the modern definitions of protected activity and adverse action under Government Code section 12940.

Key quotes

“A motion for summary judgment must be decided on admissible evidence in the form of affidavits, declarations, admissions, answers to interrogatories, depositions and matters of which judicial notice may be taken.” (Guthrey, supra, 63 Cal.App.4th at pp. 1119–1120, citing Hayman v. Block (1986) 176 Cal.App.3d 629, 638.)

“Without some evidence to make such an inference a reasonable one, it is mere speculation to suspect gender discrimination led to Lucas’s allegedly hostile conduct. Speculation is insufficient. . . . ‘The plaintiff must produce evidence which permits an inference of illegal intentional discrimination.’” (Guthrey, supra, 63 Cal.App.4th at p. 1118, quoting Heard v. Lockheed Missiles & Space Co. (1996) 44 Cal.App.4th 1735, 1755.)

“A party cannot evade summary judgment by submitting a declaration contradicting his own prior deposition testimony.” (Guthrey, supra, 63 Cal.App.4th at p. 1120, citing D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21–22.)

Read the full opinion (Justia) →

Practice pointer

Open questions

The published portions of Guthrey resolve less doctrine than they enforce; several matters were expressly or implicitly left open. The court decided the case on waiver and admissibility, and parts I.A, I.B, and II.A of the opinion — including the superior-court fee analysis — were left unpublished, so the published opinion does not articulate the standard the trial court applied in awarding $64,796.50 in fees. (Guthrey, supra, 63 Cal.App.4th at pp. 1111 and fn. *, 1126.) The court acknowledged a genuine factual question it did not need to answer: whether Lucas’s closed-door confrontation “reached the level of unwarranted hostility or whether her inquiry was completely appropriate” — the claim failed for want of a gender link, not because supervisory aggression is beyond the statute. (Id. at p. 1118.) The opinion likewise did not decide what quantum of comparator evidence would have sufficed; it held only that Guthrey conceded he had none. (Id. at p. 1121.) And its pervasiveness discussion, drawn from Fisher, has been overtaken in part by Government Code section 12923’s single-incident rule, leaving open how the Guthrey line applies to facially gender-neutral conduct after 2019 — the statute changes the severity calculus, but not Guthrey‘s core demand that the conduct be shown to be because of sex. Finally, the panel “pondered” but declined to reach whether counsel could be sanctioned sua sponte for a frivolous employment appeal, leaving that warning shot unresolved as holding. (Id. at pp. 1126–1127.)