Nazir v. United Airlines, Inc. (178 Cal. App. 4th 243, 2009)

Court of Appeal of the State of California 2009-10-09

Citations

Full opinion text

Opinion

RICHMAN, J.

Our Supreme Court has said that the purpose of the 1992 and 1993 amendments to the California summary judgment statute was “to liberalize the granting of motions for summary judgment.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854 [107 Cal.Rptr.2d 841, 24 P.3d 493].) It is no longer called a “disfavored remedy.” It has been described as having a salutary effect, ridding the system, on an expeditious and efficient basis, of cases lacking any merit. And that it has, as shown by the many cases affirming a summary judgment.

At the same time, the summary judgment procedure has become the target of criticism on a number of fronts. Some particular criticism is directed to the procedure in employment litigation, including that it is being abused, especially by deep pocket defendants to overwhelm less well-funded litigants. More significantly, it has been said that courts are sometimes making determinations properly reserved for the fact finder, sometimes drawing inferences in the employer’s favor, sometimes requiring the employees to essentially prove their case at the summary judgment stage. Here we confront the poster child for such criticism, in a case involving what may well be the most oppressive motion ever presented to a superior court.

Plaintiff Iftikhar Nazir, a man of Pakistani ancestry, worked for United Airlines, Inc. (United), for over 16 years, during which time he was called scurrilous names and was the victim of numerous other indignities. Plaintiff reached the level of mechanic supervisor, the only person of color to ever hold that position. He was terminated in 2005 by his supervisor, Bernard Petersen, on the basis that plaintiff violated United’s zero tolerance policy in an incident with a female employee of an outside service provider. Plaintiff sued United and Petersen (when referred to collectively, defendants) in a complaint that, save perhaps for two battery and fraud causes of action, asserted rather typical claims grounded on harassment, discrimination, and retaliation. What ensued was hardly typical.

Defendants filed a motion for summary judgment/summary adjudication, seeking adjudication of 44 issues, most of which were not proper subjects of adjudication. Defendants’ separate statement was 196 pages long, setting forth hundreds of facts, many of them not material—as defendants’ own papers conceded. And the moving papers concluded with a request for judicial notice of 174 pages. All told, defendants’ moving papers were 1,056 pages.

Plaintiff’s opposition was almost three times as long, including a 1,894-page separate statement, papers the trial court would later disparage as “mostly verbiage,” a description with which, as will be seen, we disagree. Curiously, no such criticism was leveled at defendants’ papers, not even those in reply, papers that defy description.

Defendants’ reply included, and properly, their response to plaintiff’s additional disputed facts. Defendants’ reply also included, not so properly, a 297-page “Reply Separate Statement” and 153 pages of “Exhibits and Evidence in Support of Defendants’ Reply.” And the reply culminated with 324 pages of evidentiary objections, consisting of 764 specific objections, 325 of which were directed to portions of plaintiff’s declaration, many of which objections were frivolous. In all, defendants filed 1,150 pages of reply.

Five thousand, four hundred, fifteen pages of material were before the trial court which, following argument, issued its order granting summary judgment, the substance of which order began as follows: “Upon due consideration . . . and having taken the matter under submission, [f] The Court finds as follows: [f] Despite its girth, Plaintiff’s opposition to the separate statement of material facts is mostly verbiage, and utterly lacking in the identification and presentation of evidence demonstrating a disputed issue of fact.” There followed several pages of discussion which did not consider the evidence favorably to plaintiff, as the law requires. Then, after granting summary judgment, the order ends with these two one-sentence rulings:

“2. Plaintiff’s 47 evidentiary objections are OVERRULED.

“3. Defendants’ evidentiary objection No. 27 is OVERRULED, and the remainder of the Defendants’ evidentiary objections are SUSTAINED.”

This, then, is what is before us for de novo review: an order granting summary judgment that purports to sustain without explanation 763 out of 764 objections to evidence, in a record the likes of which we have never seen—not here, not in the combined 11 years of law and motion experience of the members of this panel.

Nevertheless, we deal with what is before us, and first hold that the trial court’s “ruling” on defendants’ objections was manifestly wrong. We then review the matter considering all the evidence properly in the record. And we reverse the summary judgment, concluding that eight causes of action must be decided by a jury.

THE GENERAL BACKGROUND The Complaint

On July 7, 2006, plaintiff filed a complaint naming two defendants, United and Petersen. The face sheet of the complaint listed 11 causes of action, the first three of which were for harassment, discharge, and retaliation in violation of the California Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.). The body of the complaint, however, alleged 14 causes of action, with the second, fourth, and sixth causes of action being harassment, discrimination, and retaliation in “violation of public policy and the California Constitution” (public policy). In all, therefore, plaintiff alleged 14 causes of action, styled as follows: (1) harassment (religion, color, ancestry, and national origin); (2) harassment, public policy; (3) discharge (religion, color, ancestry and national origin); (4) discharge, public policy; (5) retaliation for opposing unlawful harassment and discrimination; (6) retaliation, public policy; (7) failure to take all reasonable steps to prevent discrimination and harassment; (8) discharge because of history or disability or perceived disability; (9) discharge in retaliation for taking leave under California’s Moore-Brown-Roberti Family Rights Act (CFRA; Gov. Code, § 12945.2); (10) breach of contract; (11) breach of covenant of good faith and fair dealing; (12) fraud; (13) battery; and (14) intentional infliction of emotional distress.

Plaintiff voluntarily dismissed the 10th and 11th causes of action, and concedes he is not appealing as to the second cause of action. We thus have before us 11 causes of action.

The Girth in the Record: The Inappropriate Papers

On August 30, 2007, defendants filed a “Motion for Summary Judgment or, in the Alternative, Summary Adjudication,” with moving papers totaling 1,056 pages. Plaintiff filed his lengthy opposition which, as quoted above, the trial court described as “mostly verbiage, and utterly lacking in the identification and presentation of evidence demonstrating a disputed issue of fact.”

Seemingly emboldened by this description, defendants’ brief here begins this way: “As in Macbeth’s soliloquy, Appellant’s Opening Brief (AOB), like his summary judgment opposition below, is full of ‘sound and fury, [but ultimately] signifying nothing.’ Despite filing an 1894 page(!) opposition separate statement, which the trial court found ... in a manner deliberately calculated to obfuscate whether any ‘purportedly disputed facts were actually controverted by admissible evidence,’ the trial court properly granted summary judgment in this case. As with Nazir’s opposition statement, his AOB is ‘mostly verbiage, and utterly lacking in the identification and presentation of evidence demonstrating a disputed issue of fact.’ ”

Passing over whether such disparagement is effective advocacy, the “girth” of materials before the trial court began with defendants, whose 1,056 pages of moving papers were in great part inappropriate, beginning with the motion itself.

As noted, the motion sought summary adjudication of 44 issues. As apt here, a defense-side motion for summary adjudication is appropriate if one or more “cause of action has no merit.” (Code Civ. Proc., § 437c, subd. (f)(1).) Summary adjudication must completely dispose of the cause of action to which it is directed. (Ibid.; see Hood v. Superior Court (1995) 33 Cal.App.4th 319, 321 [39 Cal.Rptr.2d 296].) More than half of the 44 issues defendants sought to have summarily adjudicated fail to meet that burden, as they would not dispose of the claim. The effect of this misconduct is not insignificant, illustrated by the fact that many of the “issues” all repeat to some extent many claimed “undisputed material facts,” repetitive facts resulting in countless pages of utterly unnecessary—and necessarily unavailing—material.

The deficiencies in the motion pale in comparison to those in the separate statement. “Separate statements are required not to satisfy a sadistic urge to torment lawyers, but rather to afford due process to opposing parties and to permit trial courts to expeditiously review complex motions for [summary adjudication] and summary judgment to determine quickly and efficiently whether material facts are undisputed.” (United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 335 [282 Cal.Rptr. 368].) The separate statement “provides a convenient and expeditious vehicle permitting the trial court to hone in on the truly disputed facts.” (Collins v. Hertz Corp. (2006) 144 Cal.App.4th 64, 74 [50 Cal.Rptr.3d 149].) That hardly describes defendants’ separate statement here.

The separate statement is, as noted, 196 pages. The exact number of supposedly material facts is impossible to know without actually counting them, as many of the facts are often repeated with the same numbers. But whatever the number, many of the facts are not material, as defendants concede, their separate statement beginning with this quizzical footnote: “The facts are deemed undisputed for purposes of this motion only and do not constitute any admission. For purposes of this motion only, Plaintiff’s statements are accepted as true. Not all facts listed herein are necessarily material, as certain facts are asserted for background, foundational, information, or other purposes. Also, by including the facts set forth herein, Defendants are not waiving their right to challenge the admissibility of such facts in connection with this motion or for other purposes in this case.”

We offer two observations about this footnote. The first is that it ignores the advice from the leading practice treatise: “PRACTICE POINTER: ...[][] Include only those facts which are truly material to the claims or defenses involved because the separate statement effectively concedes the materiality of whatever facts are included. Thus, if a triable issue is raised as to any of the facts in your separate statement, the motion must be denied!” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2009) f 10:95.1, p. 10-35 (rev. # 1, 2009).) The second is that there seems to be some disconnect between defendants’ concession that “Plaintiff’s statements are accepted as true” and defendants’ 325 objections to plaintiff’s testimony. In short, defendants’ separate statement was particularly inappropriate.

The deficiencies carried over to the reply papers, which included a 297-page reply separate statement. There is no provision in the statute for this. The reply also included 153 pages of “Exhibits and Evidence in Support of Reply.” No such evidence is generally allowed. (San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 316 [125 Cal.Rptr.2d 499].) And, of course, there were the objections, 764 in all, which we discuss below. Suffice to say that there is plenty of blame for the “girth” the trial court criticized, most of which, we conclude, lies at the feet of defendants.

But neither the inappropriateness of defendants’ papers nor their excessive volume is the worst aspect of those papers. No, that is the misleading picture those papers presented. An article coauthored by an experienced superior court judge has “intended to point out, in ascending order of seriousness, certain fatal errors and other problems [the court has] encountered” in connection with summary judgment motions, at the very top of which are motions “that attempt to ‘hide’ triable issues of [material] fact.” (Brenner & March, Use and Abuse of MSJs: A View from the Bench (2007) 49 Orange County Law. 34, 37, boldface omitted.) The article admonishes that a motion “should never cite evidence out of context in an effort to conceal a clearly triable issue of [material] fact,” going on to cite two recent examples in that judge’s court, one in a sexual harassment case, the other in one for wrongful termination. (Id. at p. 37.) Here, in vivid detail, is a third.

DISCUSSION

1. Summary Judgment Law and the Standard of Review

Code of Civil Procedure section 437c, subdivision (c) provides that summary judgment is properly granted when there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) As applicable here, moving defendants can meet their burden by demonstrating that “a cause of action has no merit,” which they can do by showing that “[o]ne or more elements of the cause of action cannot be separately established . . . .” (§ 437c, subd. (o)(l); see also Romano v. Rockwell Internal, Inc. (1996) 14 Cal.4th 479, 486-487 [59 Cal.Rptr.2d 20, 926 P.2d 1114].) Once defendants meet this burden, the burden shifts to plaintiff to show the existence of a triable issue of material fact. (§ 437c, subd. (p)(2).)

On appeal “[w]e review a grant of summary judgment de novo; we must decide independently whether the facts not subject to triable dispute warrant judgment for the moving party as a matter of law. [Citations.]” (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348 [1 Cal.Rptr.3d 32, 71 P.3d 296].) Put another way, we exercise our independent judgment, and decide whether undisputed facts have been established that negate plaintiff’s claims. (Romano v. Rockwell Internal, Inc., supra, 14 Cal.4th at p. 487.) As we put it in Fisherman’s Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 320 [7 Cal.Rptr.3d 628]: “[W]e exercise an independent review to determine if the defendant moving for summary judgment met its burden of establishing a complete defense or of negating each of the plaintiff’s theories and establishing that the action was without merit.” (Accord, Certain Underwriters at Lloyd’s of London v. Superior Court (2001) 24 Cal.4th 945, 972 [103 Cal.Rptr.2d 672, 16 P.3d 94].)

But other principles guide us as well, including that “[w]e accept as true the facts ... in the evidence of the party opposing summary judgment and the reasonable inferences that can be drawn from them.” (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 67 [105 Cal.Rptr.2d 652].) And we must “ ‘view the evidence in the light most favorable to plaintiff[] as the losing part[y]’ and ‘liberally construe plaintiff[’s] evidentiary submissions and strictly scrutinize defendants] own evidence, in order to resolve any evidentiary doubts or ambiguities in plaintiff[’s] favor.’ ” (McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 96-97 [84 Cal.Rptr.3d 734, 194 P.3d 1026].)

This last principle could be problematic here, in light of the trial court’s “ruling” on defendants’ objections to evidence which, if affirmed, would mean that plaintiff’s evidence was virtually nonexistent, with little left to be viewed favorably. To determine what the evidence is, therefore, we begin by addressing the court’s “ruling” on the objections to evidence.

2. The Ruling on Defendants’ Evidentiary Objections Was Error

Plaintiff’s opposition included 47 objections to defendants’ evidence. Defendants’ reply included 764 objections, set forth in 324 pages. The trial court had issued a tentative ruling on the motion, which ruling made no mention of the objections. At the hearing neither counsel made any reference to the objections, and no request for any rulings. The court likewise made no mention of the objections, and at the conclusion of the hearing took the matter under submission. The court thereafter filed its order granting summary judgment, which order concluded, however inexplicably, with these two “rulings”:

“2. Plaintiff’s 47 evidentiary objections are OVERRULED.

“3. Defendants’ evidentiary objection No. 27 is OVERRULED, and the remainder of the Defendants’ evidentiary objections are SUSTAINED.”

Paragraph 3, we conclude, was manifest error.

Acknowledging that some of defendants’ objections could perhaps have been properly sustained, plaintiff contends that the trial court’s blanket ruling sustaining all but one of defendants’ objections was error. We could not agree more, and hold that all of plaintiff’s admissible evidence is before us.

It is probably enough to note that the evidence is before us because defendants’ objections could be considered waived, as not having been ruled on by the court, as we held in Demps, supra, 149 Cal.App.4th at page 578: “[W]e hold here . . . that a trial court presented with timely evidentiary objections in proper form must expressly rule on the individual objections, and if it does not, the objections are deemed waived and the objected-to evidence included in the record.”

It is true that the trial court “ruled,” however conclusorily, that all objections save one were sustained. This is hardly a ruling, as it could not provide any meaningful basis for review. But even if what the trial court did is viewed as a ruling, the effect would be the same—plaintiff’s evidence would be before us, as the ruling was wrong.

Defendants assert that we review evidentiary rulings on an abuse of discretion basis, citing Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694 [23 Cal.Rptr.3d 915]. Assuming without deciding that such standard applies, we have no hesitancy in holding that the sustaining of all but one of defendants’ 764 objections was an abuse of discretion. Put otherwise, there is no way that the trial court could properly have sustained 763 objections “ ‘ “guided and controlled ... by fixed legal principles.” ’ ” (Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 695 [84 Cal.Rptr.3d 351].) There are many reasons why.

Some of the sustained objections did not even assert any basis for the objection!

Some of the sustained objections were to plaintiff’s testimony about his dates of employment, his religion, his skin color, and his national origin.

Over 250 of the sustained objections failed to quote the evidence objected to, in violation of California Rules of Court, rule 3.1354.

Twenty-seven of the sustained objections were to plaintiff’s brief, not his evidence.

Beyond all this, many of the objections were frivolous. Two illustrations should suffice. First, plaintiff testified that “[s]ome of the names [he] was called by [his] co-workers . . . were ‘sand nigger,’ ‘sand flea,’ ‘rag head,’ and ‘camel jockey.’ ” Defendants lodged four objections, two of which were lack of foundation and hearsay. No adjective is adequate to describe an objection that one who is called names lacks “foundation” to testify about them. And one does not need to be Wigmore to know that plaintiff was not introducing the names for their truth.

Second, plaintiff testified to the many times he talked to Petersen and others, bringing to their attention the various mistreatments he claimed to have suffered. One bit of testimony was this: “Throughout my tenure as a supervisor ... I repeatedly complained to Mr. Petersen that I felt I was being discriminated against by the other white supervisors in the department. [][] I also complained at least two times to Rick Wysong, Mr. Petersen’s supervisor, on about December 5, 2001 and January 3, 2002, regarding Alister Madness’ and the other supervisors’ harassment of me. ... [][]... In the meetings I told Mr. Wysong that I had already complained to Mr. Petersen about the problems I was experiencing since my elevation to supervisor . . . but that Mr. Petersen was letting the discriminatory conduct and behavior go unpunished. [][] Mr. Wysong promised me that he would change Mr. Petersen’s behavior. Mr. Wysong also said that he could not make Mr. Petersen and the other supervisors like me.”

Plaintiff’s testimony was set forth in four separate paragraphs, to each of which defendants objected. The objection to the first paragraph was “lacks foundation.” The objections to the other three paragraphs were more grandiose: “Plaintiff’s statement lacks foundation, is speculative, inserts improper opinion, argument, and conclusion (instead of evidentiary fact) and is therefore inadmissible. Cal. Evid. Code §§ 702, 800, 805; Buehler v. Alpha Beta Co. (1990) 224 Cal.App.3d 729, 733 [274 Cal.Rptr. 14]; Hoover Community Hotel Development Corp. v. Thomson (1985) 167 Cal.App.3d 1130, 1136-1137 [213 Cal.Rptr. 750] (a declaration as to someone else’s intent is mere opinion or conclusion and cannot create a triable issue of fact); see also Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1240-1241 [132 Cal.Rptr.2d 57].” Can this be serious? Can counsel see themselves rising at trial with those objections while plaintiff is testifying before a jury?

Were all that not enough, objection number 27—the one objection the trial court overruled—should have been sustained, at least as to the second sentence.

In sum, the trial court’s order sustaining all but one of defendants’ objections was a manifest abuse of discretion. Thus, plaintiff’s evidence, along with that of defendants, is in the record here, and we turn next to exposition of that evidence, evidence that, to put the matter in complete context, we set forth at some length.

3. The Facts

Plaintiff describes himself as a dark-skinned man of Kuwaiti and Pakistani national origin and Pakistani ancestry. He is a practicing Muslim. Plaintiff began employment at United in April 1989 as a mechanic. In 2001 he was promoted to supervisor of mechanics in the facilities maintenance department, becoming the only person of color ever to hold that position.

Petersen was the manager of facilities, a position he had held since 1991. Petersen was plaintiff’s immediate supervisor, and gave plaintiff his performance evaluations, which for the years 2001, 2002, and 2003 rated plaintiff as “achieved expectations.” The year 2004 was a different story, as discussed below. It was Petersen who imparted the offer of promotion to plaintiff, and Petersen who terminated plaintiff, a fact heavily relied on by the trial court in rejecting plaintiff’s discrimination claim. The complete facts surrounding the promotion and the termination will be set forth in connection with our discussion of that claim.

Plaintiff testified to countless instances of mistreatment directed at him over the years, including that his coworkers called him scurrilous names, including “to [his] face.” Plaintiff was called, among other things, “sand nigger,” “sand flea,” “rag head,” and “camel jockey.” Coworkers brought pieces of sandpaper to plaintiff and asked him to point out where he was from.

The first specific instance of name calling was in 1994, when United employee Nick Basille called plaintiff a “sand flea.” According to plaintiff, a United supervisor was present and heard the statement, and said jokingly, while laughing, “Yes, you should not say that.” The supervisor did not reprimand Basille. A few months later, Basille called plaintiff a “camel jockey,” and a few months after that a coworker asked plaintiff if people in his country “rode camels with saddles . . . when they turned 16.”

In late 1995 United employee Rich Garvin told plaintiff words to the effect, “You f*cking Muslims are all the same and Bemie Petersen is right about you people.” Plaintiff immediately complained to supervisor Randy McKim, who promised to follow up and investigate. Plaintiff was never interviewed as part of any investigation, and approximately two weeks later he complained to Petersen himself that there had been no followup. Plaintiff apparently repeated Garvin’s comment to Petersen, who did nothing to deny the attribution to him, saying only that he could do nothing at that point because too much time had elapsed.

At one time a flyer was slipped under plaintiff’s door. The flyer depicted Saddam Hussein with an arrow through his forehead, and was titled “Wanted, Butcher of Baghdad.” Plaintiff reported this to Petersen, but was never interviewed about it by anyone. Another time, another flyer was slipped under plaintiff’s door. This one depicted Saddam Hussein and one of his generals with the statement, “The war isn’t going as planned. I need an expert at downing a large fleet of U.S. planes . . . .” This was followed by a particularly obscene flyer. Again, no followup.

In the late 1990’s, plaintiff’s car was vandalized in the United parking lot, the air having been let out of the tires and all four valve stems removed. The following day, flyers were posted on the employee bulletin boards throughout the facilities maintenance department. The flyer had valves attached, and said: “Wade 1 Pak Man 0.” According to plaintiff, the “Wade” reference was to United employee Pete Wade, the suspect in the vandalism, “Pak Man” a reference to plaintiff’s Pakistani national origin. Plaintiff was never interviewed as part of any investigation into the incident, though the flyers were visible to everyone in the department, including Petersen.

In June 2001 United employee John Criswell called plaintiff “Paid”; again plaintiff complained to Petersen; again no one contacted plaintiff. Then, in early August Criswell told plaintiff words to the effect that “You need to be sent back to that camel where you came from.” Plaintiff told United supervisor Alister Maclnnes about this, and he promised to do something about it. Later that day, Criswell apologized.

Plaintiff also presented evidence concerning how in 2003 he had been reported to the Federal Bureau of Investigation as a “possible terrorist,” this the result of a telephone message in Urdu that had been left for him, but on a coworker’s line that formerly belonged to plaintiff. The facts about this are somewhat convoluted, and ultimately nothing came of it. However, plaintiff did complain of the incident, via a June 24, 2003 e-mail to Sheila Asfaha in the human resources department.

Throughout, and repeatedly, plaintiff would complain to Petersen about the mistreatment, testifying to numerous conversations with Petersen about this. One specific conversation was on July 26, 2001, where Petersen confirmed that he knew plaintiff was being called derogatory names by coworkers, saying words to the effect, “People downstairs have made disrespectful remarks to me about you. I have ignored them in the past, but now I will not, and you should not tolerate this behavior either.” But the behavior did not stop.

Plaintiff also complained from time to time to Wysong, Petersen’s supervisor. At one point, plaintiff met with Wysong, and told him he had already complained to Petersen about the problems he was experiencing since his promotion, and that Petersen was letting the behavior go unpunished. Wysong promised that he would change Petersen’s behavior, noting, however, that he could not make “Petersen and the other supervisors like me.”

Plaintiff also complained to employees in United’s human resources department, including to Asfaha. Plaintiff told Asfaha about the mistreatment to which he was being subjected at the hands of his coworkers. He also told Asfaha that he did not think Petersen supported him, a feeling he had from the time he was first promoted to supervisor.

By mid-2004 plaintiff had reached the point where, he claimed, he could not take anymore and “went outside of United’s human resources department to complain to Sandra Rossi of United’s employee assistance program regarding the discrimination and harassment [he] was experiencing.” Plaintiff met with Rossi on August 16, 2004, and described the mistreatment, including from his manager Petersen. Plaintiff took a test Rossi provided, the results of which, according to plaintiff, showed he was depressed. Rossi recommended the names of medical professionals, and also recommended that plaintiff speak to Francine Banford, the director of human resources. He did, on August 20, 2004, and among other things told Banford that the discriminatory mistreatment from his peers and Petersen, and Petersen’s failure to investigate or take any action in response to his complaints, was causing him stress. In accordance with Rossi’s advice, plaintiff began seeing a therapist.

On September 20, 2004, plaintiff went to Petersen to tell him personally that he was taking a medical leave of absence at the direction of his doctor, Laura Davies, M.D. According to plaintiff, he told Petersen unequivocally that treatment he received from his coworkers in the facilities maintenance department had made him ill and he needed professional help to recover. Plaintiff began CFRA leave that day, and would not be released to return to work until January 2005. During the leave, plaintiff was in contact with United’s own doctor, Joseph Semkiu, M.D., and with Rossi, who monitored the situation. But even the leave period was not without incident.

In mid-December 2004, plaintiff met with Dr. Semkiu, Rossi, and Petersen to coordinate his return to work. They discussed the conditions in the facilities maintenance department, and Petersen asked plaintiff why he would want to return to his management position if it caused him so much pain, suggesting that he take a demotion back to mechanic. Plaintiff refused, and on January 11, 2005, returned to work.

On February 4, 2005, plaintiff talked to Petersen about plaintiff’s need for more electricians on his crew. Petersen’s response was to “make fun” of plaintiff and to “suggest that [he] should slap a tool belt on one of [his] lead mechanics and get him to work harder.” Plaintiff complained to Anita Davis of the human resources department.

On March 7, 2005, plaintiff was given his 2004 performance evaluation (dated Feb. 23, 2005), in which he was rated as “needs improvement,” the first time he had ever been rated less than “meets expectations.” Plaintiff discussed the evaluation with Petersen, who told plaintiff he “should try harder to make friends with the people who were responsible for harassing” him.

On April 4, 2005, plaintiff asked Petersen if he could work four hours and train for four hours; Petersen said “no.” Plaintiff reminded Petersen that he needed this training to comply with his goals for his performance evaluation, but Petersen said he would approve the request only if plaintiff contacted all of the other supervisors and gave them the opportunity to also go for training.

In April 2005 plaintiff met with Victoria Keliihoomalu, the new human resources liaison to the facilities maintenance department. Plaintiff complained about the mistreatment he was enduring, and gave Keliihoomalu examples of the types of things to which he had been subjected. Plaintiff also told her that he did not think he would ever be treated fairly in his circle of management, and that he considered the performance review he received from Petersen on March 7, 2005, just two months after his return from extended medical leave, to be retaliation.

Plaintiff testified that he not only complained about Petersen to various people at the United facility where he worked, but on occasion he would complain to “higher management” or “world headquarters” in Illinois. Petersen was asked about this at deposition, whether plaintiff told him he had made a complaint about him to higher management. Petersen initially answered, however evasively, “he had a discussion, they asked him questions.” Petersen later admitted—indeed, his own notes confirmed—that as early as 2002 plaintiff had “sent information to United Airlines World Headquarters against [Petersen] and [his] lack of action on individuals [who] did not respect him.” Petersen also admitted he had heard that plaintiff complained to Larry Smith that “members of management, including Petersen, were prejudiced.” And, Petersen admitted, at no time did he “ever discipline anyone for anything they did” regarding plaintiff.

On April 18, 2005, plaintiff discovered that his office had been vandalized, that his computer had been tampered with and the lock on his door glued shut. Plaintiff complained to Petersen about this. His response was to “laugh.”

Three weeks later, on May 9, plaintiff was fired. The termination followed a short investigation of a complaint received by United on April 20, 2005, concerning a March 25 incident involving plaintiff and a female employee of an outside contractor. A detailed description of that incident and the investigation is also set forth in connection with the discrimination claim.

Plaintiff’s termination was confirmed by a letter from Petersen dated May 10, 2005, which letter described an internal appeal process. On May 19 plaintiff sent a letter to Greg Hall, senior vice-president, “Re: Termination of Iftikhar Nazir (Appeal).” The letter was four pages long, single spaced, and included what plaintiff called “examples of the discriminatory, harassing and retaliatory conduct I have been subjected to while employed by United.” The letter concluded with this: “In closing, I hope you will, please review everything. I am asking for a chance to continue working with a company I was proud to say I worked for over the years. I would like to thank you for your time in this matter, and look forward to hearing from you shortly.”

On June 1 Keliihoomalu sent an e-mail to plaintiff which, among other things, said, “[Y]our appeal was received, and currently being reviewed. I will contact you soon regarding the next step.” Five days later Keliihoomalu wrote again, answering a question for plaintiff, and concluding that “I will be contacting you soon with a scheduled hearing date.”

Nothing more is in the record about the appeal for many months, until an e-mail from Keliihoomalu of February 27, 2006, that she will “schedule a hearing as soon as possible, and get you the details of the time and date and hearing officer by Wednesday end of the day.” Such was apparently not forthcoming, and by e-mail of March 14, plaintiff said he was “still waiting for a response regarding my appeal hearing appointment.” Keliihoomalu replied that day, that she would check the calendar “for the appeal hearing and get it scheduled as soon as possible.” There is nothing more in the record.

Plaintiff also contacted the Department of Fair Employment and Housing (DFEH), and got it involved. What occurred vis-a-vis the DFEH is at the heart of the trial court’s holding that plaintiff failed to exhaust his administrative remedies, and the details of that are set forth in connection with discussion of that issue.

4. The Granting of Summary Judgment Was Error

A. The Summary Judgment Cannot Be Affirmed Based on Plaintiff’s Separate Statement

The penultimate paragraph of the order granting summary judgment reads as follows: “Alternatively, this Court finds that the 1,894 page Response to Defendants’ Separate Statement of Undisputed Fact fails to conform to the requirements of C.C.P. § 437c[(b)](3) and fails to follow the format requirements of CRC Rule 3.1350(f) and (h), and in fact, as the Plaintiff’s Memorandum of Points and Authorities concedes, was intended to constitute in large part a second Memorandum of Points and Authorities that grossly exceeds the 20 page limitation of CRC Rule [3.1113](d) and was filed without leave of court. The court further finds that the Opposition Separate Statement, which purports to dispute all but seven of the Undisputed Facts offered by Defendants, was designed in a manner calculated to make it time-consuming and difficult for the court to ascertain which purportedly disputed facts were actually controverted by admissible evidence. Thus, the Court would be at liberty to strike or disregard Plaintiff’s opposition in its entirety.”

Defendants first argue that the trial court’s “Alternative Ground for Granting Summary Judgment—[Plaintiff’s] Willful Failure to File a Proper Separate Statement—Should be Affirmed.” Such argument fails.

To begin with, notwithstanding the use of the word “alternatively,” the trial court did not grant summary judgment on the basis of an improper separate statement. Rather, the court said only that “it would be at liberty to strike or disregard” it. In any event, had the trial court stricken plaintiff’s separate statement, it would have been under the circumstances an abuse of discretion. (Security Pacific Nat. Bank v. Bradley (1992) 4 Cal.App.4th 89, 94-95 [5 Cal.Rptr.2d 220] [summary judgment reversed because defendant’s failure to file a responsive separate statement was not a willful refusal to comply with the statute].) “[A]n immediate grant of summary judgment is, in most instances, too harsh a consequence.” (Collins v. Hertz Corp., supra, 144 Cal.App.4th at p. 74.) “[T]he proper response in most instances, if the trial court is not prepared to address the merits of the motion in light of the deficient separate statement, is to give the opposing party an opportunity to file a proper separate statement . . . .” (Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co. (2005) 133 Cal.App.4th 1197, 1211 [35 Cal.Rptr.3d 411].)

B. Summary Adjudication of the FEHA-based Harassment Claims Was Error

1. The Law

Government Code section 12940, subdivision (j)(l) provides that it is an unlawful employment practice for “an employer ... or any other person, because of race, religious creed, color, national origin, ancestry ... to harass an employee .... Harassment of an employee . . . shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action. . . . An entity shall take all reasonable steps to prevent harassment from occurring. . . .”

The law prohibiting harassment is violated “[w]hen the workplace is permeated with discriminatory intimidation, ridicule and insult that is ‘ “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” ’ ” (Kelly-Zurian v. Wohl Shoe Co. (1994) 22 Cal.App.4th 397, 409 [27 Cal.Rptr.2d 457], quoting Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17, 21 [126 L.Ed.2d 295, 114 S.Ct. 367]; accord, Carrisales v. Department of Corrections (1999) 21 Cal.4th 1132, 1137 [90 Cal.Rptr.2d 804, 988 P.2d 1083].) This must be assessed from the “perspective of a reasonable person belonging to the racial or ethnic group of the plaintiff.” (McGinest v. GTE Service Corp. (9th Cir. 2004) 360 F.3d 1103, 1115.) And the issue of whether an employee was subjected to a hostile environment is ordinarily one of fact. (See Chin et al., Cal. Practice Guide: Employment Litigation (The Rutter Group 2008) ¶ 10:164, pp. 10-32 to 10-33 (rev. # 1, 2008) (Chin).)

Giving credence to plaintiff’s evidence, as we must, there was certainly a triable issue of fact as to harassment here.

2. The Motion and the Ruling

Defendants sought summary adjudication of the harassment claim in 17 issues, those numbered 5 through 21. With minor exceptions, defendants’ arguments can be distilled to two: (a) plaintiff failed to exhaust his administrative remedies, and (b) the “harassment allegations [were] untimely.” The trial court latched onto the failure to exhaust argument, as shown by the court’s vigorous questioning at the hearing. And the order devoted almost three pages to why the harassment claim failed for failure to exhaust administrative remedies.

This, we conclude, was error.

3. Plaintiff Presented Sufficient Evidence That He Exhausted His Administrative Remedies

On July 13, 2005, plaintiff submitted to DFEH his first precomplaint questionnaire. It is on a DFEH preprinted form, and the first question asks: “I believed I was discriminated against because of my (please circle).” In response, plaintiff checked the boxes for race, color, age, religion, disability, and national origin and ancestry. Notably, there is no box for harassment.

However, the next question says to circle the discriminatory treatment and indicate the date occurred. After this question, there is an entry for “Harassed,” next to which plaintiff entered “1991-2005.” Then, on what is apparently the first full page of text, plaintiff said that “[t]he discrimination and harassment have been nonstop since 1991.”

Plaintiff filled out a second precomplaint questionnaire on September 13; 2005. This questionnaire echoed some of the information on the earlier one, including that the harassment has been “nonstop since 1991.” This questionnaire was accompanied by a typed page of “additional information,” which included plaintiff’s complaints that he was “overwhelmed with the unfair treatment by [his] colleagues”; that his manager did not want him to return from stress leave in management; that he had “[ejndured relentless unfair and prejudicial treatment for years”; and that he had “always been treated unfairly during [his] employment [and] had informed H.R. on numerous occasions.”

Plaintiff’s first complaint for discrimination was filed with the DFEH on October 3, 2005. This complaint was prepared, according to plaintiff’s testimony, by someone at DFEH. The complaint was against United only, and checked boxes for discrimination on the basis of color, religion, and national origin/ancestry.

On December 26, 2005, plaintiff sent a letter to DFEH investigator Richard Swiderski, elaborating on plaintiff’s position. The letter was eight pages long, single spaced, and began by thanking Swiderski for “returning my call regarding the response from United Airlines.” The letter referred, among other things, to the fact that at the time plaintiff was terminated he was in active discussions “with H.R.’s Victoria Keliihoomalu” about various issues, among which was “[t]he unfair treatment [he] was receiving from [his] manager and colleagues . . . [and] [f] . . . [f] [t]he hostile environment [he] was working in.” The letter then went on to identify 45 individuals who plaintiff asserted could shed light on various aspects of his version of facts. There is no indication in the record that anyone at DFEH ever contacted any of these people.

On March 30, 2006, DFEH wrote plaintiff of its conclusion that “the evidence and information did not support a finding that a violation of the FEHA occurred.” Apparently leading to that conclusion, the DFEH’s letter recited the following; “As you were informed on 03/30/2006, the investigation did not reveal sufficient evidence or information to establish that a violation of the FEHA occurred. ...[][] The employer presented a copy of the notes and interview record forming the investigation in charges of sexual harassment made against you on 4/20/05 by the employee of a vendor performing services in your area of employment. The notes include a chronology of the charges and investigation, interviews with the complainant, with her supervisor, and with three witnesses together with your statements. The employer also presented a copy of a disciplinary letter and final notice dated 7/25/03 and placed in your file, and a copy of your termination letter dated 5/10/05.”

On May 5, 2006, plaintiff filed two more complaints with the DFEH, one against United and one against Petersen. These complaints checked, among other things, that plaintiff was “harassed,” and asserted that he “was harassed and fired in retaliation for taking medical leave and in retaliation for opposing harassment against me on the basis of my religion (Muslim), my color (dark), and my national origin (parents from Pakistan, bom in Kuwait).”

On May 23, 2006, the DFEH sent plaintiff a notice of case closure because “an immediate right to sue letter was requested.”

Eschewing any meaningful discussion of what was before the DFEH, defendants argued that plaintiff could rely only on the May 5 complaints, as only they were complaints that mentioned harassment. And, the argument ran, what was in those complaints was time-barred. The trial court bought the argument, “finding” as follows: “All of the alleged acts of harassment occurred more than one year prior to May 5, 2006, [plaintiff’s harassment] claims are barred for failure to exhaust administrative remedies.”

Attempting to support the trial court’s holding, defendants assert five arguments here, including that (1) the precomplaint questionnaires do not make plaintiff’s claims timely; (2) the factual statement in the October 2005 DFEH complaint makes no reference to being harassed; and (3) harassment is not “like or related to” discrimination. They also assert that plaintiff’s failure to timely bring a harassment claim is not equitably excused and that the “continuing violation” doctrine is inapplicable. Defendants’ arguments have no merit, not in the face of the record here.

A leading treatise describes the approach that is to be taken, doing so in the context of the analogous EEOC (Equal Employment Opportunity Commission) law: “The administrative exhaustion requirement is satisfied if the allegations of the civil action are within the scope of the EEOC charge, any EEOC investigation actually completed, or any investigation that might reasonably have been expected to grow out of the charge. Thus, the judicial complaint may encompass any discrimination ‘like and reasonably related to’ the allegations of the EEOC charge. [Citations.] [f] . . . Administrative charges are to be construed liberally because they are often drafted by claimants without the assistance of counsel. Accordingly, ‘[i]t is sufficient that the EEOC be apprised, in general terms, of the alleged discriminatory parties and the alleged discriminatory acts.’ [Sosa v. Hiraoka (9th Cir. 1990) 920 F.2d 1451, 1458 . . . ; see also B.K.B. v. Maui Police Dept. (9th Cir. 2002) 276 F.3d 1091, 1110—EEOC charges construed ‘with utmost liberality’] [H] ... [][]•• • Plaintiffs may proceed on claims not explicitly set forth in a charge of discrimination if the claim is ‘like or reasonably related to the EEOC charges’ and could reasonably be expected to grow out of an EEOC investigation of the charge. [Citation.]” (Chin, supra, ¶ 16:195 et seq., p. 16-27 (rev. # 1, 2007), some italics omitted.) Applying those principles to the setting here compels the conclusion that the trial court’s decision was error. So, too, does the applicable case law.

Baker v. Children’s Hospital Medical Center (1989) 209 Cal.App.3d 1057 [257 Cal.Rptr. 768] (Baker) was an action by an African-American college student who worked part time at the hospital. During the school year, he worked only on weekends, but during the summer he was “on call” for numerous shifts, and in fact worked many hours during the summers of 1982 and 1983. However, in the summer of 1984, Baker’s supervisor did not give him any additional work hours. Baker complained and filed an internal grievance in August 1984. The following May he filed his DFEH charge, claiming that he was the victim of racial discrimination during the summer of 1984. Baker’s subsequent lawsuit alleged that the hospital harassed him, subjected him to disparate treatment and biased evaluations, engaged in racial epithets, denied him promotions, and stopped calling for “on-call” work shifts after he filed his grievance. (Id. at pp. 1060-1061.) The trial court granted summary judgment for failure to exhaust administrative remedies. Our colleagues in Division Five reversed.

The court first discussed three case: Jones v. Los Angeles Community College Dist. (1988) 198 Cal.App.3d 794 [244 Cal.Rptr. 37], Sanchez v. Standard Brands, Inc. (5th Cir. 1970) 431 F.2d 455, and Oubichon v. North American Rockwell Corp. (9th Cir. 1973) 482 F.2d 569. (Baker, supra, 209 Cal.App.3d at pp. 1062-1064.) Quoting from Sanchez, described as “the leading case,” the court confirmed: “ ‘the specific words of the charge of discrimination need not presage with literary exactitude the judicial pleadings which may follow, [f] [T]he allegations in a judicial complaint filed pursuant to Title VII “may encompass any kind of discrimination like or related to allegations contained in the charge and growing out of such allegation during the pendency of the case before the [EEOC]” [Citation.] In other words, the “scope” of the judicial complaint is limited to the “scope” of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination. [][] The logic of this rule is inherent in the statutory scheme of Title VIL A charge of discrimination is not filed as a preliminary to a lawsuit. On the contrary, the purpose of a charge of discrimination is to trigger the investigatory and conciliatory procedures of the EEOC. Once a charge has been filed, [EEOC] carries out its investigatory function and attempts to obtain voluntary compliance with the law. Only if the EEOC fails to achieve voluntary compliance will the matter ever become the subject of court action. Thus it is obvious that the civil action is much more intimately related to the EEOC investigation than to the words of the charge which originally triggered the investigation.’ ” (Baker, supra, 209 Cal.App.3d at p. 1064.)

The court then concluded: “The record before us does not reveal the extent of the DFEH’s investigation of appellant’s complaint, or the reason it issued the right to sue letter. However, the allegations of harassment and differential treatment encompass the allegations of discrimination in his DFEH complaint. Moreover, it is reasonable that an investigation of the allegations in the original DFEH complaint would lead to the investigation of subsequent discriminatory acts undertaken by respondents in retaliation for appellant’s filing an internal grievance. Consequently, we conclude the instant action is not barred by the exhaustion doctrine.” (Baker, supra, 209 Cal.App.3d at p. 1065.)

We discern from the above that what is submitted to the DFEH must not only be construed liberally in favor of plaintiff, it must be construed in light of what might be uncovered by a reasonable investigation. That this is so is confirmed by a case defendants heavily rely on, Cole v. Antelope Valley Union High School Dist. (1996) 47 Cal.App.4th 1505 [55 Cal.Rptr.2d 443]. Cole was an action against the district and three administration officials, Dr. Kenneth Brummel, Darlene Hinkel, and E. Michael Rossi. Brummel and Hinkel “were not named in either the caption or the body of plaintiff’s initial and amended charges filed with the [DFEH]”; Rossi was “named in the body, but not the caption, of both the initial and amended charges.” (Id. at p. 1509.) The Court of Appeal affirmed the summary judgment for Brummel and Hinkel, but reversed as to Rossi. The reason: “If there had been an administrative investigation, Mr. Rossi would have been put on notice of the charges, and would have had an opportunity to participate.” (Id. at p. 1511.)

Here, the matter of prelitigation investigation is a particularly pertinent one, and one distinctly favoring plaintiff. The materials he submitted to the DFEH are certainly adequate to specify the nature of his problems at the workplace. In both his questionnaires, he expressly claimed to be the victim of constant harassment: “The discrimination and harassment have been non stop since 1991 to the day my services were terminated.” In both questionnaires, plaintiff used up all the available space provided. And the second questionnaire was accompanied by a typed page of “additional information,” which included plaintiff’s complaints that he was “overwhelmed with the unfair treatment by [his] colleagues”; that his manager did not want him to return from stress leave in management; that he had “[e]ndured relentless unfair and prejudicial treatment for years”; and that he had “always been treated unfairly during [his] employment [and] had informed H.R. on numerous occasions.” And plaintiff’s lengthy December 26, 2005 letter to DFEH investigator Swiderski—sent, not incidentally, after plaintiffs’ formal complaint—referred, among other things, to “the unfair treatment [he] was receiving from [his] manager and colleagues . . . [and] . . . [t]he hostile environment [he] was working in.” This, we conclude, demonstrates a triable issue as to whether plaintiff exhausted his administrative remedies, a conclusion supported by the most recent United States Supreme Court case on the subject: Federal Express Corp. v. Holowecki (2008) 552 U.S. 389, 404 [170 L.Ed.2d 10, 128 S.Ct. 1147, 1159] (Holowecki).

Holowecki was a case brought under the Age Discrimination in Employment Act of 1967 (ADEA; 29 U.S.C. § 621 et seq.), which the district court dismissed on the ground the employee had not filed a charge with the EEOC at least 60 days before filing suit. The Second Circuit reversed, a reversal affirmed by the Supreme Court. The employee’s argument in Holowecki was that she had filed a valid charge by “submitting EEOC Form 283,” a form the EEOC labels an “Intake Questionnaire.” (Holowecki, supra, 552 U.S. at p. 394 [128 S.Ct. at p. 1153].) Concluding that this met the ADEA test, the Supreme Court held as follows: “In this case, however, the completed questionnaire filed in December 2001 was supplemented with a detailed six-page affidavit. At the end of the last page, respondent asked the agency to ‘[p]lease force Federal Express to end their age discrimination plan so we can finish out our careers absent the unfairness and hostile work environment created within their application of Best Practice/High-Velocity Culture Change. ’ [Citation.] This is properly construed as a request for the agency to act.” (552 U.S. at p. 405 [128 S.Ct. at pp. 1159-1160].)

So, too, the voluminous, and detailed, papers plaintiff filed here were a request for the DFEH “to act.” And it is reasonable to presume that a thorough DFEH investigation would uncover a great many of the particulars of the 14 continuous years of “harassment,” and “the unfair treatment [he] was receiving from [his] manager and colleagues . . . [and] . . . [t]he hostile environment [he] was working in.”

But even if plaintiff’s extensive submission to the DFEH were not sufficient, his claim would still be timely, saved by the continuing violation doctrine.

4. The Continuing Violation Doctrine

Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798 [111 Cal.Rptr.2d 87, 29 P.3d 175] involved a disabled employee who resigned from her job, but only after several years during which she claimed her employer refused to reasonably accommodate her. Many of the claimed incidents of disability occurred outside the FEHA one-year limitations period. Affirming a jury verdict for the plaintiff, our Supreme Court set forth what has come to be known as the continuing violation doctrine, holding as follows;

“[W]e hold that an employer’s persistent failure to reasonably accommodate a disability, or to eliminate a hostile work environment ... is a continuing violation if the employer’s unlawful actions are (1) sufficiently similar in kind—recognizing, as this case illustrates, that similar kinds of unlawful employer conduct, such as acts of harassment . . . may take a number of different forms [citation]; (2) have occurred with reasonable frequency; (3) and have not acquired a degree of permanence. [Citation.] . . .

“Thus, when an employer engages in a continuing course of unlawful conduct under the FEHA . . . and this course of conduct does not constitute a constructive discharge, the statute of limitations begins to run, not necessarily when the employee first believes that his or her rights may have been violated, but rather, either when the course of conduct is brought to an end, as by the employer’s cessation of such conduct or by the employee’s resignation, or when the employee is on notice that further efforts to end the unlawful conduct will be in vain.” (Richards v. CH2M Hill, Inc., supra, 26 Cal.4th at p. 823; accord, Dominguez v. Washington Mutual Bank (2008) 168 Cal.App.4th 714, 721 [85 Cal.Rptr.3d 705].)

The Supreme Court has extended the continuing violation doctrine to retaliation claims. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1059 [32 Cal.Rptr.3d 436, 116 P.3d 1123].) And the doctrine also applies to racial harassment claims. (See Chin, supra, ¶ 16:100, p. 16-17 (rev. # 1, 2007).) Indeed, as we observed in Morgan v. Regents of University of California, supra, 88 Cal.App.4th 52, 65: “Cases alleging a hostile work environment due to racial or sexual harassment are often found to come within the continuing violations framework. (E.g., Accardi v. Superior Court [(1993) 17 Cal.App.4th 341,] 349-351 [21 Cal.Rptr.2d 292] [10-year course of sexual harassment of female police officer]; Watson v. Department of Rehabilitation (1989) 212 Cal.App.3d 1271, 1291 [261 Cal.Rptr. 204] [‘campaign of retaliatory harassment’ against employee who complained about employer’s failure to promote her]; Anthony v. County of Sacramento (E.D.Cal. 1995) 898 F.Supp. 1435, 1443 [‘hostile environment harassment ... by its nature involves an ongoing course of conduct rather than a single discrete act’].)”

This is another such case, as plaintiff raised triable issues of fact on all three components: sufficient similarity; reasonable frequency; and the conduct had not acquired a degree of permanence. (See generally Dominguez v. Washington Mutual Bank, supra, 168 Cal.App.4th 714 [summary judgment reversed as continuing violation doctrine presented triable issues of fact as to timeliness of complaint].)

C. Summary Adjudication on the Discrimination Claims Was Error

Plaintiff’s third and fourth causes of action alleged discrimination, respectively in violation of FEHA and in violation of public policy and the California Constitution. Defendants sought summary adjudication on these claims in two issues (Nos. 23 & 24), on the sole basis that there was a “legitimate non-discriminatory reason for the termination.” As defendants summarized their argument, plaintiff’s claims are “untenable under the California Supreme Court’s decision in Cotran v. Rollings Hudig Hall Internat., Inc. (1998) 17 Cal.4th 93 [69 Cal.Rptr.2d 900, 948 P.2d 412] (Cotran). To establish ‘good cause’ to terminate an accused harasser under Cotran an employer does not need to prove that harassment actually occurred, only that it conducted an ‘appropriate investigation’ and that its termination decision was not ‘arbitrary or pretextual.’ ”

Plaintiff argued vigorously that there was a triable issue that what occurred was pretextual. The trial court ruled against plaintiff, as follows: “Defendants have presented a legitimate non-discriminatory basis for terminating Plaintiff. Specifically his gender harassment and unwanted physical contact with the woman supervising the custodian services. (See Undisputed Material Facts Nos. 28-57.) The burden then shifted to Plaintiff to present specific detailed factual evidence demonstrating that the reason for termination was pretext and that the actual reason was discriminatory. Yet, Plaintiff failed to present any evidence controverting Material Undisputed Facts Nos. 28-57. . . . Most of the allegedly discriminatory conduct (by coworkers) occurred many years ago, and thus is remote in time from Plaintiff’s termination. Further, it is Defendant Petersen who gave Plaintiff a promotion to supervisor.”

Though the trial court never used these words, we interpret the ruling as implicitly concluding that the