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Hughes v. Home Savings of America2/13/2002
h 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. These are actions of a type necessary to carry out the duties of business and personnel management. . . . Harassment, by contrast, consists of actions outside the scope of job duties which are not of a type necessary to business and personnel management. . . .'" (Id. at pp. 646-647.) As succinctly stated by the Court of Appeal in Janken, "Making a personnel decision is conduct of a type fundamentally different from the type of conduct that constitutes harassment." (Janken v. GM Hughes Electronics, supra, 46 Cal.App.4th at p. 64.)
The Fair Employment and Housing Commission's definition of harassment is consistent with the Supreme Court's conclusions in Reno. Title 2 of the California Code of Regulations, section 7287.6, subdivision (b)(1), defines harassment as follows: "Harassment includes but is not limited to: [ ] (A) Verbal harassment, e.g., epithets, derogatory comments or slurs on a basis enumerated in the [Fair Employment and Housing Act ("Act")]; [ ] (B) Physical harassment, e.g., assault, impeding or blocking movement, or any physical interference with normal work or movement, when directed at an individual on a basis enumerated in the Act; [ ] (C) Visual forms of harassment, e.g., derogatory posters, cartoons, or drawings on a basis enumerated in the Act; or [ ] (D) Sexual favors . . . ."
We have reviewed the entire record of the evidence presented at trial. There is no substantial evidence, or reasonable inferences to be drawn therefrom, which support plaintiff's racial harassment claim. There is no evidence anyone ever made any racially derogatory comments to plaintiff or subjected her to physical or visual harassment because of her race. There is no evidence plaintiff was subjected to: racial epithets; racially derogatory comments; racial slurs; or anything of the sort. There is no evidence of any racially motivated physical interference. There was no evidence of racially derogatory posters, cartoons, drawings, or the like. There was no evidence of racial conduct engaged in for personal gratification, because of meanness or bigotry, or for other personal motives.
In her opening brief on appeal, plaintiff points to purported evidence of racial harassment consisting of: performance evaluations with which plaintiff disagreed; Ms. Limjoco's instructing plaintiff to tell two African-American job applicants they were overqualified or under qualified; Ms. Limjoco's refusing to speak with the two African-American job applicants and instructing plaintiff to take telephone messages from them; that Ms. Limjoco hired Filipino employees but did not hire any African-Americans at or below plaintiff's level while she was plaintiff's supervisor; informal and formal counselings that plaintiff felt were unfair; denial of the opportunity to attend a letter writing course; violation of company policy in promoting Ms. Gutierrez; Mr. Kobin's review of formal counselings reflected in plaintiff's personnel file; denial of promotion; superiors conducting a random "desk check" of plaintiff's workstation while she was out on sick leave; and Human Resources department personnel's failure to investigate plaintiff's harassment and discrimination complaint. Many of the cited acts occurred prior to April 1, 1993. As discussed above, plaintiff's cause of action was limited to acts of harassment "at any time after April 1993." Moreover, even if we consi
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