Kebriaiy v. Union Bank CA2/1 ( 2015 )

Filed 10/29/15 Kebriaiy v. Union Bank CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
B255324
ALI KEBRIAIY,
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No. BC489318)
v.
UNION BANK, N.A.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles County. Mark V.
Mooney, Judge. Affirmed.
______
Cantor Law and Zachary Cantor for Plaintiff and Appellant.
Blank Rome and Michael L. Ludwig for Defendant and Respondent.
______
Ali Kebriaiy alleged that his former employer, Union Bank, N.A. (the Bank),
violated the Fair Employment and Housing Act (FEHA) by failing to promote him and,
later, terminating his employment based on his age and disability. The court entered
judgment in favor of the Bank after granting the Bank’s motion for summary judgment.
Kebriaiy appealed. Based on our independent review, we affirm the judgment.
FACTUAL SUMMARY
1. Background
The Bank hired Kebriaiy in August 2001 as a part-time Customer Service
Specialist. He was then 63 years old. During his 10 years with the Bank, Kebriaiy
received various awards and commendations for his work, occasional promotions, and
annual increases in pay. In March 2010, the Bank promoted him to the position of
“Operations Assistant II,” or “Operations Specialist.”
Kebriaiy worked in the Bank’s Foothill Ranch branch. In December 2010, there
was an opening in the Bank’s Mission Viejo branch for an Operations Specialist, the
same position Kebriaiy held. Kebriaiy applied for the position because the Mission Viejo
branch was closer to his home. Brian Skelton, a regional manager for the Bank, denied
his application without giving Kebriaiy a clear reason. Kebriaiy believed that Skelton did
not like him. When asked why he believed this, Kebriaiy said that Skelton would talk
with other employees when he visited the branch, but would not respond when Kebriaiy
said hello to him.
In January 2011, Jacqueline Williams became the Customer Service Manager at
the Foothill Ranch branch and Kebriaiy’s direct supervisor. Curtis Kang was the branch
manager.
In March 2011, the Bank received a letter from a lawyer asserting that the Bank
had mishandled a series of deposits for the lawyer’s client. Kang asked Williams to
investigate the claim. Williams determined that Kebriaiy and two other Bank employees
had made erroneous transactions. Kebriaiy’s error occurred more than a year earlier, in
February 2010, when he deposited checks totaling $3,000 into the account of someone
other than the payee of the checks. The day after it happened, the error was corrected;
2
neither the Bank nor a customer lost any funds. Kebriaiy’s supervisor at the time,
“Maggie,” orally admonished him to “be careful.”
In May 2011, Williams, unaware that her predecessor had spoken to Kebriaiy
about the mishandled deposit, prepared a “final written warning[]” to Kebriaiy based on
the error. She prepared similar warnings for the other two employees. Williams printed
Kebriaiy’s written warning on May 25, 2011, but did not give it to him until after she
denied him a promotion, as discussed below.
2. Williams Denied Kebriaiy a Promotion
Around the same time that Williams was preparing the written warnings regarding
the mishandled deposits, she was interviewing applicants for the position of Customer
Service Officer (CSO) in the Foothill Ranch branch. The duties of a CSO were similar to
the duties of an Operations Specialist—the position Kebriaiy then held—except that the
CSO had a higher level of signing authority. “Signing authority” refers to the authority
the Bank gives an employee to decide whether to place a hold on a deposit. At that time,
Kebriaiy had signing authority for deposits up to $25,000. According to Williams,
Kebriaiy was not only authorized to make decisions up to that amount, but was “expected
to make” such decisions.
Despite his decision-making authority, Kebriaiy would, at least one or two times
per week, seek second opinions from Williams or Kang (the Foothill Ranch branch
manager). Williams said he did so “routinely”; Kang said he did it “often.” Williams
and Kang thus believed that Kebriaiy was not comfortable with his existing level of
signing authority and did not have the required decision-making skills for the CSO
position.
Williams noted this issue in Kebriaiy’s March 2011 performance review.
Although the review was generally positive, Williams wrote that Kebriaiy “‘needs to
work on his decision making skills. Although he has a signing authority limit, he is not
confident in making approvals within that limit.’” Kebriaiy disagreed with this criticism,
stating in his deposition that he requested second opinions from others because he did not
“want to make [a] problem for [him]self” in the event a customer complained. Kebriaiy
3
also pointed out that neither Williams nor Kang ever told him to stop requesting second
opinions and that Skelton testified at his deposition that seeking a second opinion
might be appropriate when “there’s something about the transaction that you feel is not
right . . . .”
No one told Kebriaiy about the opening for the CSO position; he found out about
it after he noticed individuals coming into the branch for interviews. When Kebriaiy
asked Williams why she did not tell him about the opening, Williams told him he was not
qualified for the position. When Kebriaiy asked Williams why he was not qualified,
Williams told Kebriaiy he could apply for the position. He did, and Williams arranged
for an interview.
After interviewing Kebriaiy and three other candidates in late May 2011, Williams
selected Arsalan Vakilian to be the CSO. Vakilian was about 30 years old at the time.
Skelton was not involved in the CSO hiring decision. In a declaration supporting the
Bank’s motion for summary judgment, Williams stated that she did not consider
Kebriaiy’s “age or mental or physical condition” when making her decision; she did not
hire Kebriaiy as the CSO because she did not believe he was qualified for the position.
3. Williams Gives Kebriaiy the Formal Written Warning and Kebriaiy has a
Panic Attack
On May 31, 2011, five days after Williams interviewed Kebriaiy for the CSO
position, Williams gave Kebriaiy the final written warning she had prepared regarding
the February 2010 mishandled deposit. Kebriaiy points out several anomalies about the
written final warning. First, the 15-month gap between Kebriaiy’s error and the written
warning is inconsistent with the Bank’s practice of giving written warnings close to the
date the incident occurred or was discovered. Second, contrary to protocol, Williams
did not have the employee relations department review the warning in advance.
Third, Williams explained the failure to consult with employee relations by stating that
Skelton had agreed to her “course of action”; however, Skelton’s approval, if given at
all, appears to have been based on the fact that Kang incorrectly informed Skelton that
4
Employee Relations had approved of the warning.1 After the Bank’s Senior Employee
Relations Consultant learned that Kebriaiy had been given the warning, she emailed
Williams stating that “the level of action taken and the rational” for the action did “not
appear” to be consistent with the Bank’s guidelines.
Almost immediately after Williams gave Kebriaiy the written warning, Kebriaiy
had a panic attack. He experienced anxiety, loss of sleep, chest pains, and numbness in
his lip. On June 6, 2011, Kebriaiy provided the Bank with a doctor’s note stating that
Kebriaiy had chest pain and was advised to rest at home. The Bank placed Kebriaiy on
a leave of absence. On June 20, 2011, the Bank received a second doctor’s note stating
that Kebriaiy had a panic attack and was advised to rest. A few days later, in a note
stating that Kebriaiy had been examined for arthritic pain, the doctor released Kebriaiy to
return to work on June 27, 2011.
4. Termination of Kebriaiy’s Employment
In 2011 the Bank implemented a “Branch Optimization Initiative” to make the
Bank, in Skelton’s words, “become more effective, capture efficiencies[,] and be better
positioned to deal with market realities.” This “broadly-based initiative . . . involved
bringing staffing needs and numbers in line with business requirements.” As a result,
Skelton needed to eliminate nine “full time equivalent[]” positions from within the
16 branches he managed. Skelton testified that he first learned of the layoffs in
August 2011.
To determine which positions to eliminate, Skelton considered “objective criteria,”
such as the number of transactions a branch handled, whether the number of transactions
was increasing or decreasing, and the ratio of employees with signing authority to
employees without signing authority. The Foothill Ranch branch, he determined, was a
relatively small office with declining transaction volume and staffed with too many
1
When asked at his deposition how he learned that Kebriaiy was getting a final
written warning, Skelton answered: “The branch manager [Kang] let me know that they
were going to give [Kebriaiy] a final written, and so I said, ‘Did you, you know, discuss
that with employee relations and they were in agreement.’ He said, ‘Yes,’ and I said,
‘Okay.’”
5
employees with signing authority. The branch, in his view, did not “need a higher paid
employee with signing authority to do teller transactions that were declining.” So, in
September, he “decided to eliminate the Operations Specialist position at the Foothill
Ranch branch,” i.e., Kebriaiy’s position, and “backfill with a less expensive part-time
teller.” Neither Williams nor Kang were involved in the decision.
In his declaration, Skelton stated that he did not base any action with respect to
Kebriaiy’s employment, including termination of employment, on Kebriaiy’s age, mental
condition, or physical condition.
Before Skelton told Kebriaiy of his decision, Kebriaiy went on a vacation to visit
family in Iran. After arriving in Iran, Kebriaiy became seriously ill. On October 5, 2011,
Kebriaiy sent a note to the Bank from a doctor in Iran stating that Kebriaiy had symptoms
that included “vertigo, nausea and digestive problems,” and he would need “10 days
treatment and rest.” On October 15, 2011, the doctor stated that Kebriaiy needed an
additional “10 days treatment and rest.” On October 26, 2011, a doctor released Kebriaiy
“to work without limitation.”
While Kebriaiy was in Iran, Skelton told Williams and Kang of the decision to
eliminate Kebriaiy’s position. Williams subsequently sent Skelton an email expressing
her concern that Kebriaiy might “have a panic attack” or heart attack when he is informed
of the layoff. She recalled that Kebriaiy was “on disability for 3 weeks due to chest pains
when [she] delivered his final warning to him earlier this year.”
When Kebriaiy returned to work on October 27, 2011, Skelton informed him that
his position would be eliminated effective December 26, 2011. Kebriaiy immediately
suffered a panic attack and was transported by ambulance to a hospital. Kebriaiy was
74 years old at that time.
As part of the reorganization initiative, Skelton hired or transferred a teller from
another branch to the Foothill Ranch branch to work 20 hours per week at a pay-grade
lower than Kebriaiy’s. The new teller was in his “early 20s.” As of the date of the
summary judgment motion, the branch had not hired a new Operations Specialist.
6
5. Procedural Background
Kebriaiy filed a complaint with the Department of Fair Employment and Housing
in June 2012. He immediately requested and promptly received a right to sue letter.
He filed his complaint in the Superior Court in July 2012 alleging 11 causes of action.
He has abandoned all but the following three: (1) disability discrimination; (2) age
discrimination; and (3) wrongful termination in violation of public policy.
The Bank filed its motion for summary judgment in September 2013. The motion
was initially set for a hearing on November 22, 2013. On November 4, 2013, Kebriaiy
filed motions to compel further responses to discovery. The motion for summary
judgment and the discovery motions were heard together on November 27, 2013. After
granting the motion for summary judgment, the court declared the discovery motions
moot and declined to address them. Judgment was thereafter entered in favor of the
Bank.
DISCUSSION
1. FEHA and Summary Judgment
FEHA prohibits discrimination against persons “in terms, conditions, or privileges
of employment” based upon age, physical disability, or mental disability, among other
protected classes. (Gov. Code, § 12940, subd. (a).) A plaintiff establishes a prima facie
case of discrimination under FEHA by producing evidence that (1) he is a member of a
protected class (e.g., is over the age of 40 or has a disability); (2) he was qualified for
the position (in the case of a failure to hire or promote) or was performing competently
in the position (in the case of termination); (3) he suffered an adverse employment
action (e.g., termination, demotion, or denial of an available job); and (4) some other
circumstance suggests discriminatory motive. (Guz v. Bechtel National, Inc. (2000)
24 Cal.4th 317, 355 (Guz).) If the employee establishes such a prima facie case, a
presumption of discrimination arises. (Ibid.) An employer may rebut the presumption
by producing admissible evidence that it took the challenged action for a legitimate
nondiscriminatory reason. (Id. at pp. 355-356.) The plaintiff then has “the opportunity to
7
attack the employer’s proffered reasons as pretexts for discrimination, or to offer any
other evidence of discriminatory motive.” (Id. at p. 356.)
A trial court properly grants summary judgment when there are no triable issues of
material fact and the moving party is entitled to judgment as a matter of law. (Code Civ.
Proc., § 437c, subd. (c); Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 486.)
In the context of a FEHA claim, an employer moving for summary judgment has the
initial burden of producing evidence that either negates one or more elements of
plaintiff’s prima facie case or establishes a legitimate nondiscriminatory reason for the
adverse employment action. (Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th
994, 1003 (Hicks); Swanson v. Morongo Unified School District (2014) 232 Cal.App.4th
954, 966.) A “legitimate” reason is one that is “facially unrelated to prohibited bias, and
which, if true, would thus preclude a finding of discrimination.” (Guz, supra, 24 Cal.4th
at p. 358.) If the reason is legitimate in this sense, it “need not necessarily have been
wise or correct.” (Ibid.)
If the employer meets its initial burden, “‘the plaintiff then has the burden to
produce ‘substantial evidence that the employer’s stated nondiscriminatory reason for
the adverse action was untrue or pretextual, or evidence the employer acted with a
discriminatory animus, or a combination of the two, such that a reasonable trier of fact
could conclude the employer engaged in intentional discrimination.’ [Citation.]”
(Hicks, supra, at p. 1003; see also Sandell v. Taylor–Listug, Inc. (2010) 188 Cal.App.4th
297, 314.) To satisfy this burden, the employee may not “simply deny the credibility
of the employer’s witnesses or . . . speculate as to discriminatory motive.” (Serri v.
Santa Clara University (2014) 226 Cal.App.4th 830, 862). Nor is it enough to show
that the employer’s reasons were unsound, wrong, or mistaken. (Hersant v. Department
of Social Services (1997) 57 Cal.App.4th 997, 1005.) Rather, the employee “‘must
demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the employer’s proffered legitimate reasons for its action that a
reasonable factfinder could rationally find them “unworthy of credence,” [citation],
8
and hence infer “that the employer did not act for the [the asserted] non-discriminatory
reasons.” [Citations.]’ [Citations.]” (Ibid.)
If, “considering the employer’s innocent explanation for its actions, the evidence
as a whole is insufficient to permit a rational inference that the employer’s actual motive
was discriminatory,” the employer is entitled to summary judgment. (Guz, supra,
24 Cal.4th at p. 361.)
“We review the trial court’s decision de novo, liberally construing the evidence
in support of the party opposing summary judgment and resolving doubts concerning
the evidence in favor of that party.” (State of California v. Allstate Ins. Co. (2009)
45 Cal.4th 1008, 1017-1018.)
2. The Failure to Promote Kebriaiy to the CSO Position2
Kebriaiy contends that the Bank discriminated against him based on his age
when it failed to promote him to the position of CSO in May 2011.3 For purposes of his
prima facie case, there is no dispute that Kebriaiy is over 40 years old (and therefore
within the class of persons protected against age discrimination), that the Bank’s
failure to promote him was an adverse employment action, and that the Bank hired a
2
On appeal, the Bank argues that Kebriaiy’s failure-to-promote claim is untimely
because he did not file his FEHA claim within one year of that decision. (See Gov. Code,
§ 12960, subd. (d).) A potential problem with this argument is that the Bank first
raised the FEHA statute of limitations as a ground for summary judgment in its reply
memorandum of points and authorities. Ordinarily, it would be error to grant or affirm
summary judgment based on such a belatedly raised ground. (See Ramsey v. City of Lake
Elsinore (1990) 220 Cal.App.3d 1530, 1546.) Kebriaiy, however, does not assert this
defect in the Bank’s argument and, therefore, has arguably waived it. Instead, Kebriaiy
argues that his failure to promote claim is not barred by the statute of limitations based on
the continuing violation doctrine. (See Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th
798, 823.) In any case, because we hold that summary judgment is appropriate for other
reasons, we decline to address these issues.
3
Although Kebriaiy appears to allege in his complaint that the denial of his
application for the Operations Specialist position at the Mission Viejo branch in 2010
was a violation of FEHA, he does not argue this point in his briefs on appeal. He has
therefore forfeited or abandoned that basis for his claim. (Wall Street Network, Ltd. v.
New York Times Co. (2008) 164 Cal.App.4th 1171, 1177.)
9
significantly younger person for the position. The parties disagree as to whether Kebriaiy
can establish the remaining element of his prima facie case—that he was qualified for the
CSO position. Even if there is a triable factual issue as to this element, the Bank has met
its initial burden by producing evidence that it had a legitimate nondiscriminatory reason
for denying Kebriaiy the CSO position: Kebriaiy lacked sufficient decision-making skills
and confidence for the position.
The primary feature distinguishing the CSO position and Kebriaiy’s then-current
position was the level of signing authority. As Williams indicates, by giving an
employee a certain level of signing authority, the Bank not only grants the employee the
authority to make decisions about the handling of deposits, but also expects the employee
to make such decisions. Contrary to this expectation, by his own admission Kebriaiy
sought out Williams and Kang for second opinions on decisions within his signing
authority at least once or twice per week. Kang said he did this “often”; Williams said it
occurred “routinely.” Kebriaiy’s practice of seeking out second opinions, Kang and
Williams explained, indicated a lack of the decision-making skills required for the
CSO position. Because Kebriaiy “was not comfortable with the lower signing authority
he already had,” Williams stated, he “was not qualified for the CSO position.
The legitimacy of Williams’s reason for not hiring Kebriaiy is supported by the
evidence of Williams’s written review of Kebriaiy’s performance more than two months
before Kebriaiy applied for the CSO position. In that review, Williams wrote that
Kebriaiy “is not confident in making approvals within [his signing] limit.” The reason
was not, therefore, expressed for the first time in Williams’s and Kang’s summary
judgment declarations.
Because the Bank’s reason for denying Kebriaiy the CSO position is legitimate
and nondiscriminatory, Kebriaiy had the burden to produce either substantial evidence
that the reason was untrue or pretextual, or that the Bank acted with a discriminatory
animus, or a combination of the two, such that a reasonable trier of fact could conclude it
engaged in intentional discrimination. Kebriaiy has failed to do so.
10
Kebriaiy points to Williams’s failure to inform Kebriaiy of the opening for the
CSO position to show discriminatory animus. But the reason for not hiring Kebriaiy—
his lack of decision-making confidence and skills—also explains why Williams did not
inform Kebriaiy of the opening: Williams did not believe Kebriaiy was qualified for the
position. Failing to inform Kebriaiy of the opening, therefore, is entirely consistent with
the reason given for not promoting him.
Kebriaiy next points to his disagreement with Williams’s use of the word
“routinely” to describe the frequency with which he sought second opinions. He explains
that he did so only once or twice weekly, and only when the circumstances required it.
Indeed, Skelton stated during his deposition that seeking a second opinion might be
appropriate when the transaction does not “feel . . . right” to the employee. The
argument, however, suggests only that Williams’s judgment about Kebriaiy’s practice
of seeking second opinions was wrong or mistaken, not that it was a pretext for unlawful
discrimination.
Next, Kebriaiy asserts that Williams made her hiring decision before she
interviewed Kebriaiy. He relies on: (1) an email confirming that Kebriaiy’s interview
had been scheduled for May 27, 2011, and (2) an email Williams sent in the afternoon
of May 26 stating that she had completed her interviews. Williams explained in
a declaration, however, that her interview of Kebriaiy, though initially scheduled for
May 27, was moved up to May 26, and that she sent her May 26 email after she
completed her interview of Kebriaiy. Kebriaiy does not refute this explanation or point
to any evidence that his interview actually took place on May 27.
Kebriaiy also points to the fact that the person hired for the position was 40 years
younger than he. Although this fact supports a prima facie case of age discrimination,
it does not support an inference that the Bank’s stated reason was untrue or pretextual.
Kebriaiy also cites the fact that Williams drafted the final written warning around the
time she told Kebriaiy he could apply for the CSO position. If the reason for denying
Kebriaiy the promotion was that he had made the deposit error in February 2010, then
Kebriaiy’s argument would have some force. Williams, however, did not rely on
11
Kebriaiy’s transactional error in denying him the promotion. Because there is no
evidence that the prior mistake had any bearing on Williams’s decision, evidence of
Williams’s written warning about the incident is immaterial.
Kebriaiy further asserts that during his interview he saw a piece of paper with the
names of persons selected as candidates for the position that did not include his name,
and that Williams, contrary to an email she sent, never actually told Kebriaiy he did not
get the promotion. Kebriaiy does not explain, however, how these facts imply pretext or
a discriminatory animus.
Finally, Kebriaiy asserts that Williams had asked Kebriaiy when he was going to
retire and how old he was. He points to his deposition testimony that Williams had
asked him about retirement four or six months before his employment was terminated.4
Asking an employee about his or her retirement plans does not imply a discriminatory
animus.5 Kebriaiy also testified that others had asked his age, but could not recall anyone
in particular, identifying only “[t]hose people working over there.” Later in his
deposition, Kebriaiy testified that Williams had asked Kebriaiy how old he was and that
he answered, “64.” This places the conversation sometime around 2001, and therefore
immaterial. There is nothing in his deposition to suggest that Williams’s question to
Kebriaiy about his age occurred around the time she asked him in 2011 about retirement.
The facts raised by Kebriaiy are insufficient to raise a triable issue as to the
question of whether the Bank’s proffered reason for not hiring Kebriaiy as the CSO was
4
In response to Williams’s question about retiring, Kebriaiy answered, “two years or
maybe more if I have good condition and good health.”
5
During oral argument, Kebriaiy’s counsel referred us to France v. Johnson
(9th Cir. 2015) 795 F.3d 1170, a failure-to-promote, age discrimination case that involved a
decisionmaker, Gilbert, who “had repeated retirement discussions” with the plaintiff, despite the
plaintiff’s “clear indications that he did not want to retire.” (Id. at p. 1172.) In one conversation,
Gilbert commented that if he were in plaintiff’s position, “he would retire as soon as possible.”
(Ibid.) The Ninth Circuit held that evidence of the frequency, nature, and timing of these
discussions was sufficient to create a triable issue as to pretext. (Id. at pp. 1176-1177.) We do
not disagree with France’s analysis. Our case, however, involved only one alleged inquiry about
Kebriaiy’s retirement and therefore does not raise the specter of prevarication.
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untrue or pretextual, or that the Bank’s decision was motivated by a discriminatory
animus. The Bank is therefore entitled to summary judgment on that claim.
3. Termination of Kebriaiy’s Employment
Kebriaiy contends that the Bank violated FEHA by terminating his employment
based on his age and his alleged disability. Because Kebriaiy is over 40 years of age,
he is within the class of persons protected against age discrimination. (See Gov. Code,
§ 12926, subd. (b).) He also contends he has a mental or physical disability for purposes
of FEHA based on the evidence of his June 2011 panic attack and related chest pains,
lip numbness, and fits of crying and insomnia, as well as the illness he suffered while in
Iran in October 2011. Even if such conditions do not constitute a disability per se,
Kebriaiy points out that FEHA also protects employees who are “regarded or treated” by
the employer as having a disability. (See former Gov. Code, § 12926, subds. (i)(4) &
(l)(4) [now subds. (j)(4) & (m)(4)].)
Even if we assume that Kebriaiy had (or was regarded as having) either a mental
or physical disability and otherwise established the elements of his prima facie case for
his unlawful termination claims, the Bank satisfied its initial burden by producing
evidence of a legitimate nondiscriminatory reason for the action—Kebriaiy’s position
was eliminated as part of the Bank’s reorganization initiative. According to Skelton,
he applied objective criteria to determine which branches would be affected and, within a
branch, which positions would be eliminated. Kebriaiy’s position was identified because
the Foothill Ranch branch had declining transactional volume and more employees
with signing authority than it needed. “Age,” Skelton declared, “was not a factor.”
More specifically, Skelton stated that he did not consider Kebriaiy’s age and mental and
physical condition in making the decision. Consistent with the cost-cutting plan, Skelton
hired or transferred a lesser-paid, part-time teller. Thereafter, the branch operated with
the same complement of employees and without an Operations Specialist. The reason
is legitimate and nondiscriminatory and, therefore, shifted the burden to Kebriaiy to
show that the reason is untrue or pretextual, or that the decision was motivated by
discriminatory animus.
13
Kebriaiy points to interrogatory responses showing that two tellers, including a
“Sr. Teller,” were hired in August 2011, shortly before Skelton made his layoff decisions.
The same responses, however, show that a Senior Teller who had been with the Bank for
four years stopped working at the branch in late July. (The record does not disclose why
the teller left the branch.) The Senior Teller Kebriaiy points to was hired approximately
three weeks later. The facts thus strongly suggest that Williams hired a Senior Teller in
mid-August to fill the position vacated by the departure in July of a Senior Teller; there
was no net increase in staffing as a result.
The hiring or transfer of the second, part-time teller is entirely consistent with
Skelton’s explanation that the Bank needed to reduce the number of full-time employees
and that the Foothill Ranch branch had more employees with signing authority than
needed. The Operation Specialist position (a position with signing authority) was
eliminated and a part-time teller was added. The effect was a reduction in the branch’s
full-time staff.
Contrary to Skelton’s testimony that he was notified about layoffs in August 2011
and that he told Kang and Williams of the layoffs in October 2011, Kebriaiy asserts that
Skelton and Williams actually knew of the Bank’s plans for layoffs in April 2011. If so,
they knew of the layoffs before Williams hired the CSO in May and the Senior Teller in
August. Kebriaiy asserts that these facts, when viewed together with Williams’s question
to Kebriaiy about retiring and the “procedurally outlandish” final written warning,
suggest that “the lay-off was a mere pretext to terminate Kebriaiy due to his age and
disability.” The evidence Kebriaiy cites to establish Skelton’s and Williams’s prior
knowledge of the layoffs is deposition testimony by Connie Alcaraz-Ford, a Bank
employee in the Employee Relations department, regarding the Bank’s announcement of
“[o]peration excellence” in April. Alcaraz-Ford described operation excellence as “a
review . . . of all the business units and the bank as a whole,” out of which “there may be
some additions to jobs in certain departments and also some impact to jobs.” There is
nothing more in our record about operation excellence or how it relates to other events in
the case. Even if operation excellence is another name for the “Branch Optimization
14
Initiative” that led to the October layoffs, Alcaraz-Ford’s vague reference to the
possibility of “some additions to jobs” and “some impact to jobs” is not evidence that
Skelton or Williams was notified in April that layoffs would occur.
The evidence Kebriaiy submitted, in short, is insufficient to raise a reasonable
inference that the Bank’s reason for eliminating Kebriaiy’s position was a pretext for
unlawful discrimination based on either a disability or Kebriaiy’s age. The Bank was
therefore entitled to judgment on the disability and age discrimination claims arising from
the termination of Kebriaiy’s employment.
4. Wrongful Termination in Violation of Public Policy
Kebriaiy’s cause of action for wrongful termination in violation of public policy is
based solely upon the alleged FEHA violations. Because Kebriaiy’s FEHA claims fail as
a matter of law, so does his public policy claim. (See Arteaga v. Brink’s, Inc. (2008)
163 Cal.App.4th 327, 355; Higgins-Williams v. Sutter Medical Foundation (2015)
237 Cal.App.4th 78, 87-88.)
5. The Court’s Failure to Address Kebriaiy’s Pending Discovery Motion
At the time of the hearing on the Bank’s summary judgment motion, the court also
had before it Kebriaiy’s motions to compel further discovery responses. After the court
granted the summary judgment motion, it ruled that the discovery motions were moot and
declined to address them. Kebriaiy contends that the court should have either continued
the hearing on the summary judgment motion or denied the motion “because of [the]
Bank’s delay tactics.” We disagree.
Code of Civil Procedure section 437c, subdivision (h) provides a means for a party
opposing a summary judgment motion to request a continuance to allow the party to
obtain discovery of facts to support the opposition. The request must be supported by
affidavits showing “that facts essential to justify opposition may exist but cannot, for
reasons stated, then be presented.” (Ibid.) These affidavits must be “submitted on or
before the due date for the opposition to the motion for summary judgment.” (Ambrose
v. Michelin North America, Inc. (2005) 134 Cal.App.4th 1350, 1357.) Kebriaiy did not
make a timely request under this section or submit any affidavit with the required
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information. The court did not, therefore, err by failing to continue the motion for
summary judgment. (See Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th
1081, 1083.) Nor was there any basis for denying the motion based on speculation as
to whether and what further discovery responses might have been forthcoming.
DISPOSITION
The judgment is affirmed. The Bank shall recover its costs on appeal.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
JOHNSON, J.
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