Castro v. Bank of America, Nat. Assn. CA2/4 ( 2020 )

Filed 11/6/20 Castro v. Bank of America, Nat. Assn. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 publication
or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published
for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
RITA CASTRO, B294396
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC664647)
v.
BANK OF AMERICA, NATIONAL
ASSOCIATION et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Steven J. Kleifield, Judge. Affirmed.
Law Offices of Victor L. George, Victor L. George,
Wayne C. Smith and Elvis Tran; Esner, Chang & Boyer and
Shea S. Murphy for Plaintiff and Appellant.
Davis Wright Tremaine, Camilo Echavarria, and
Elizabeth J. Carroll for Defendants and Respondents.
INTRODUCTION
In January 2017, respondent Bank of America, N.A.
(the Bank) fired appellant Rita Castro, the Financial Center
Manager of its Tarzana financial center, after concluding
that Castro had abused and bullied employees at the
financial center. Castro subsequently sued the Bank,
respondent Andrew Downes Ah Moo (her former supervisor),
and respondent Brian Jones (her second-level supervisor).
The operative complaint claimed her termination was the
result of impermissible discrimination based on her age,
gender, and disability, and was retaliation for reporting
improper sales practices. The trial court granted
respondents’ motion for summary judgment, finding that
while Castro had made a prima facie case for age
discrimination and retaliation, she had made an insufficient
showing to overcome the Bank’s proffer of legitimate reasons
for her termination. On appeal, Castro challenges the
court’s ruling, arguing that the evidence she presented
raised triable issues of material fact whether her
termination resulted from impermissible discrimination or
retaliation. We affirm.
STATEMENT OF RELEVANT FACTS
A. Background
Castro was born in November 1950 and has suffered
from rheumatoid arthritis (RA) since approximately 2005.
Prior to her termination in January 2017, she had been
2
employed by the Bank for over 30 years. Starting in 2010,
she managed the Bank’s financial center in Tarzana, holding
the title of Financial Center Manager (FCM). She was an at-
will employee.
Castro underwent multiple surgeries while employed
by the Bank. In 2011, she had rotator cuff surgery. In 2014,
she had surgery on her left foot. In 2015, she had another
surgery on her left foot. She also had both knees replaced at
different times. For each surgery, she either took medical
leave or elected to use her vacation time.1 Castro expressed
no concerns with how the Bank handled her time off for
surgeries.
Because of Castro’s RA, she had trouble using an iPad
that employees used to help direct customers who entered
the financial center. When customers entered the lobby, an
employee would ask for their name or debit card and enter
this into an iPad the employee was holding. The iPad would
display the customer’s history and accounts with the Bank,
helping the employee direct the customer to whomever could
assist them. Castro had trouble holding the iPad, so when
she was directing customer traffic, she would instead go to
her computer to input the customer’s name or debit card,
and direct the customer thereafter. Castro was not required
to be the employee directing customer traffic; as the FCM,
she had the authority to delegate the task to others.
1 Castro testified that using vacation time to undergo
surgery was her decision, not one requested by the Bank.
3
From August 2015 to July 2016, respondent Andrew
Downes Ah Moo (Downes) supervised several banking
centers, including the one in Tarzana. While his office was
not located in the Tarzana center, Downes was Castro’s
supervisor. During the period he supervised her, she claims
he made the following comments to her:
–He asked whether she wanted to transfer to a
smaller branch because she was “‘getting older
and it might be easier.’”
–When Castro stated she did not remember a
certain customer, he asked her, “‘What’s wrong
with your memory?’”
–He commented she would be carried out of the
Bank “‘feet first.’”
–He asked why she could not get along with
millennials.
–He asked why she was not using the iPad.
–He asked, “‘How many more surgeries can you
have?’” and once said, “‘Come here, gimpy’”
when she was limping.2
2 Castro testified at deposition that she did not hold the
“gimpy” comment against Downes and thought Downes might be
joking.
4
Castro claimed that after Downes began supervising
her in 2015, she was “marginalized.” She was no longer
invited to town hall meetings or “roundtables,” where six to
eight managers in a region would be asked to meet with
senior managers. She also stopped receiving perks, such as
tickets to baseball games or concerts. She claimed her age
was a “big joke” at any Bank events, though she admitted
she herself frequently said she would not retire until she was
100 years old, and they would have to carry her out of the
workplace.
In July 2016, Downes transferred to a different market
and no longer supervised Castro. He had no interaction with
her after his transfer, and had no involvement in her
discharge or the investigation preceding it. Thereafter, Sai
Savant became Castro’s supervisor. Respondent Brian Jones
was Castro’s second-level supervisor. Castro claimed that
Jones also asked her why she was not using the iPad and,
when Castro explained that her RA prevented her from
doing so, he responded, “‘Oh, so you’re missing sales
opportunities.’” Castro alleged that “[e]very time” senior
management visited her financial center, they would ask her
why she was not using the iPad and she would explain about
her RA. Castro was never disciplined for not using the iPad,
and the issue never arose in her performance reviews.
Also working at the Tarzana center was Michael
Sanchez, who at the time of the incident held the title of
Market Sales Manager and managed the personal bankers.
Castro testified at deposition that Sanchez had said to her a
5
few times, “‘I don’t know how you’re able to do this. Look
how swollen your hands are.’”
B. The Incident
On September 14, 2016, Castro, Eugene Karachun (a
relationship manager working at the Tarzana center), and
three other employees were meeting in an office, regarding a
dispute Karachun and another employee were having. Video
footage of this meeting shows that approximately six
minutes into the meeting, Castro emerged from behind the
desk in the room and walked toward the door. Before she
reached it, she turned around, approached an employee, and
waved her fist at her. She then turned toward Karachun
and waved her fist in his direction.3 Karachun then left the
room. After a pause, Castro walked toward the door and,
upon reaching it, fell to the ground. While the footage
contained no audio, Castro alleged that in response to a
request to spit out his gum, Karachun responded, “It’s
always got to be your way or fuck off.”
C. The Investigation
Two days later, Castro reported the incident to advice
and counsel, the Bank’s equivalent of a human resources
department. Castro also reported other concerns regarding
3 While Castro claimed she could not form a fist and the
Bank did not dispute this, we have reviewed the video footage
and Castro’s hand does, indeed, appear to be balled into a fist. In
any event, the video depicts Castro twice raising her hand in a
threatening gesture.
6
Karachun’s conduct and attendance and stated she feared
him. The matter was assigned to Elisa Bain (an employee
relations manager who had conducted or been involved in
employee investigations for the Bank for over 20 years) and
Mikael Andersson (a security manager who had been with
the Bank for nine years). Bain was to investigate whether
Karachun had violated Bank policy, and Andersson was to
investigate whether Karachun posed a safety threat.
On September 20, 2016, Bain and Andersson called
Castro to interview her. Castro appeared frustrated and
asked Bain (to whom she had not previously spoken), “‘How
many more times was I gonna say this story?’” Bain later
testified that it took a long time to calm Castro down
sufficiently to answer questions; Castro initially claimed to
be a Senior Vice President and challenged why she was
being questioned. She eventually informed Bain that
Karachun was often under the influence of alcohol, was
frequently late, used racist and antigay slurs, made a
comment about “easy access” in reference to a coworker’s
skirt, dated customers, and used profanity. The Bank placed
Karachun on administrative leave pending an investigation.
Bain interviewed several employees regarding Castro’s
allegations, including Karachun himself. When interviewed
on September 20, 2016, Karachun alleged Castro had been
abusing and bullying the employees in the center. Specific
allegations included that she threatened his job and pitted
employees against each other. She called male employees
“‘pussy’” and a female employee “‘fat,’” comparing her to
7
Jabba the Hut. She taunted an employee for previously
calling advice and counsel to complain about her. She also
mocked elderly customers. Based on Karachun’s allegations,
as well as the video footage showing Castro’s threatening
gestures, Bain and Andersson opened an investigation into
Castro as well.
On September 22, 2016, Savant (Castro’s supervisor)
telephoned Castro and asked her to come to a meeting;
Castro became upset and stated she could not come because
she had a doctor’s appointment. Castro expressed
frustration at being interviewed again, and her husband
came on the line to yell at Savant.4 The next day, the Bank
placed Castro on paid administrative leave.
Bain interviewed more than a dozen employees in her
investigation of Castro. In the interviews, she was told that
Castro:
–constantly called an employee “fat ass,” and
called other employees “bitch” and “pussy”
–suggested an employee get a “lap band” because
of her weight
–called a teller “stupid” and insinuated employees
were not smart enough to do their jobs
4 Castro claimed she told Savant to call her if she wanted
Castro to come in after her doctor’s appointment, but that Savant
never called.
8
–told one employee she lacked common sense and
could not speak English
–commented on an employee’s body during
pregnancy
–mocked elderly customers
–raised her hands in anger, pointed her finger in
employees’ faces, and grabbed employees’ arms
when angry
–was accusatory regarding sick time and
questioned the legitimacy of an employee’s
bereavement leave when the employee’s father
died
–pitted employees against each other
–used profanity
–disclosed other employees’ personal information
–did not consistently treat employees in a
respectful manner
–became emotional and defensive when a peer,
who had heard about a “not good” environment,
had attempted to discuss concerns with her
–gave an employee a hard time about changing
clothes after he was asked to move furniture,
when moving furniture was not part of his job
duties
9
–potentially attempted to influence one
employee’s testimony regarding Karachun by
reminding him that Karachun had “punched”
him months earlier (in his own interview, the
employee described the punch as playful, not
violent)
Castro did not dispute the employees made these
statements but noted that several of them also praised her,
and/or denied seeing or suffering any abuse. She also noted
she had previously reported three of those interviewed
(Christine Torres, Regina Sarfati, and Jena Takvoryan) for
improper sales practices.5 However, several employees who
were not the subject of Castro’s reports -- Monica Alonzo,
Marissa Robeson, Raphael Gallardo, Mandana Bourbour,
and Michael Sanchez -- also said negative things regarding
5 The parties disputed whether Jones, who made the
ultimate decision to terminate Castro, was aware of these
reports. In a declaration submitted in opposition to the Bank’s
motion for summary judgment, Castro alleged she specifically
told Jones of these improper sales practices. In her deposition
testimony, however, she failed to name Jones as among the
individuals she had informed of the improper sales practices. In
December 2016, Castro asked Jones’s assistant to set up a
meeting between her and Jones, because she had decided to “go
higher up regarding [her] concerns,” something she had not yet
done.
10
Castro’s behavior.6 Castro testified at deposition that if the
allegations made about her were true, her termination would
have been appropriate.
6 Alonzo stated that Castro commented on the size of her
belly when she was pregnant, which Alonzo did not appreciate.
Alonzo also said she sometimes felt verbally abused by Castro,
who made her feel that she did not know what she was doing or
was not smart enough for the job. She was afraid to call in sick
because Castro would make comments to other employees that
they did not look sick. Alonzo reported that Castro would use
profanity, comment on other employees (e.g. telling an employee
to be careful around another employee, because the employee
would call HR), and grab employees when upset. Alonzo did not
complain about the abuse because she feared losing her job.
Alonzo believed other employees felt similarly.
Robeson stated Castro told her in front of others that
Robeson lacked common sense. She had seen Castro raise a fist
to other employees, and believed Castro needed to control her
temper and would benefit from anger management.
Gallardo stated Castro had reminded him before the
interview of the time when Karachun had punched him on the
shoulder. Gallardo, too, said that Castro used profanity.
Bourbour stated she “absolutely [did] not” get the support
she needed from Castro, and that Castro “absolutely [did] not”
demonstrate the Bank’s “role model behaviors” or treat all
employees equally with dignity and respect.
Sanchez stated there was tension in the center and relayed
one incident at which he was present when Karachun told Castro
he felt harassed and retaliated against, and Castro began crying
and saying it might be time for her to retire. Castro also claimed
people were trying to “gang up” on her.
11
After the employee interviews, Bain believed she had
the information she needed, and had a “high level of
confidence” that the allegations regarding Castro were true.
Bain found it significant that the first time she interviewed
some of the employees (about Castro’s allegations regarding
Karachun), their testimony “somewhat protected” Castro,
and it was not until the second interview that they revealed
their issues with Castro’s behavior; Bain believed this
evidenced a lack of bias because these employees did not
know there would be a second interview.7 Taking into
account the evidence she had already collected, Castro’s
frustration when Bain had originally called her to speak
about Karachun, Castro’s subsequent refusal to come in for a
meeting when Savant had called to request one, and Castro’s
husband’s outburst at Savant during that call, Bain chose
not to interview Castro. Bain testified in deposition that
there was no value in interviewing Castro because of the
“overwhelming amount of evidence to support her poor
leadership skills.” Bain opined she had “never seen a
situation quite like this one where we had such an
overwhelming amount of evidence regarding Ms. Castro’s
behavior.”8
7 Though Castro’s allegations regarding Karachun were the
focus of the initial interviews, Bain believed her questions “were
broad enough to see if there was other additional behaviors [sic]
in the center.”
8 Castro testified to her belief that the Bank had a policy to
always interview the employee being investigated because in her
(Fn. continued on the next page.)
12
D. Disciplinary Actions
Regarding Karachun, Bain believed several allegations
(that he had used profanity and engaged in horseplay and
inappropriate behaviors such as blowing “canned air” on a
co-worker) were substantiated but many others (that he had
been under the influence, made an “easy access” comment in
reference to a co-worker’s skirt, or used racist or antigay
slurs) were not. The Bank disciplined Karachun with a
written “policy reminder,” advising him of what behaviors
were appropriate. He was not fired.
The Bank decided to fire Castro. It claimed to have
made this decision on October 14, 2016. However, before the
termination could be carried out, Castro requested medical
leave and the Bank decided to grant the request and proceed
with the termination after Castro’s return. Castro disputes
this, pointing to an entry made in the Bank’s Siebel
time at the Bank, her “experience was that you have to coach
your associate. You have to give them an opportunity to state
their side. It is not -- you don’t just take one side; you speak to
everyone.” Bain testified that “[i]t was our practice that I would
have talked to [Castro] maybe in some form in the -- I mean at
some point in the investigation. As I told you in this case, we did
not. And there was a reason why.” Even had the Bank failed to
follow its own procedures, that would not signify that the true
motive was discriminatory. (See Arnold v. Dignity Health (2020)
53 Cal. App. 5th 412, 430 (Arnold) [assuming employer failed to
follow its policies and procedures, summary judgment proper
when plaintiff failed to present evidence supporting rational
inference that discrimination was true reason for employer’s
actions].)
13
computer system (wherein Bain, per her usual practice, had
entered her notes regarding the Karachun and Castro
investigations) dated October 17. This entry contained
“talking points” for a call with Castro, in which Castro was
to be asked to meet with Jones and Bain. The talking points
stated that if Castro asked whether she should resign, Jones
would respond that this would be her decision, but that her
resignation would be accepted. However, if Castro refused to
meet, then she would be told the Bank “will need to make
decisions based on the information we have and as such her
employment will be terminated effective immediately” and
that “[f]ailure to cooperate in an investigation is a COC
violation.” It is undisputed that before anyone had such a
call with Castro, she requested and was granted medical
leave to undergo shoulder surgery.
Castro returned to work on January 23, 2017. That
morning, she met with Savant and Andersson, with Jones on
the phone. Jones informed Castro the Bank was terminating
her employment because it had lost trust in her leadership.
Castro’s replacement was a healthy male in his 30s.
In explaining the differences in the discipline between
Karachun and Castro, Misha Boyd-Harris, a human
resources manager, testified at deposition that: “Castro was
the leader in that financial center, therefore as the leader
she sets the tone and the culture. So as the leader -- and the
relationship manager [Karachun] is a subordinate. The
relationship manager was not term[inat]ed because if there
were behaviors unbecoming of a leader that were egregious
14
in nature and that sets the tone, then we would not
terminate the subordinate.”
E. Castro’s Suit
In June 2017, Castro filed a complaint against the
Bank, Jones, and Downes, alleging four causes of action: (1)
discrimination on the basis of age, gender, and disability in
violation of the Fair Employment and Housing Act (FEHA);
(2) termination in violation of public policy; (3) intentional
infliction of emotional distress; and (4) failure to
accommodate. In December 2017, Castro filed a first
amended complaint, which is the operative complaint,
adding a cause of action for retaliation in violation of Labor
Code section 1102.5. The individual defendants were named
only in the cause of action for intentional infliction of
emotional distress; the Bank was named in every cause of
action. All defendants answered the operative complaint.
F. Summary Judgment Motion and Ruling
In July 2018, respondents moved for summary
judgment or, in the alternative, summary adjudication.
Castro opposed the motion, respondents replied, and the
motion was heard and taken under submission in September
2018. The court subsequently issued a 13-page order
granting the motion. The portions relevant to this appeal
are summarized below.
The court first set forth the general legal principles:
“‘In employment discrimination cases under FEHA,
plaintiffs can prove their cases in either of two ways: by
15
direct or circumstantial evidence.’” It then delineated the
three-part test used in California: “‘“(1) The complainant
must establish a prima facie case of discrimination; (2) the
employer must offer a legitimate reason for his actions; (3)
the complainant must prove that this reason was a pretext
to mask an illegal motive”’” and addressed each cause of
action.
1. First Cause of Action for
Discrimination in Violation of FEHA
Regarding the first cause of action for discrimination
on the bases of age, gender, and disability, the court found
Castro had made a prima facie showing only as to age
discrimination. Regarding gender discrimination, the court
found the only evidence Castro presented was that she was
replaced by a man, and “[t]hat simply is not enough to
support a claim of gender discrimination.” Regarding
disability discrimination, the court found Castro had failed
to show she had suffered an adverse employment action
because of her disability. The court found that regardless of
any animus evidenced by Downes’s comments toward
Castro, it was undisputed that Downes played no part in the
investigation of Castro or her termination. Additionally,
Jones’s comment that Castro was missing sales
opportunities by not using the iPad, the fact that Castro had
to explain to senior management about her RA “every time”
they visited, and Sanchez’s comment about her swollen
16
hands and that he did not know how she could “do this,” did
not constitute evidence of animus based on disability.
The court found the Bank’s investigation into Castro
had uncovered “a plethora of events, including what [the
Bank] accurately describes in its points and authorities as
‘bullying’ and [‘]cruel, unprofessional, and controlling
behavior.’ The behavior included name calling (‘fat ass’,
[‘]bitch’, ‘stupid’, ‘pussy’); mocking of elderly customers;
disrespectful comments to employees; grabbing employees by
the arm when she was upset; disclosing private information;
and questioning the need for bereavement leave.” The court
further found the “findings were reported on and discussed”
and “[t]he decision was made to terminate Plaintiff from
employment” but “[b]efore the termination could be carried
out, Plaintiff requested and was granted a medical leave.”
The court found the Bank had established nondiscriminatory
reasons for the termination.
The court reiterated that Castro had failed to make a
prima facie showing of gender and disability discrimination
and had presented “no evidence that her age was discussed
or taken into account by” those who fired her. The court
noted that “[t]he establishment of a prima facie case, without
more, is insufficient to show a discriminatory motive, a
necessary fact to show pretext.”
The court further determined that Castro had failed to
raise a triable issue of fact that the Bank’s proffered reasons
for terminating her employment were pretextual. The court
noted that “[t]he fact that the investigation may not have
17
been perfect, or that one or more of the interviewed
employees may have had a grudge against Plaintiff, does not
establish discriminatory intent. . . . [A]t most it ‘would give
rise to an inference that the employer had other unstated
reasons for the termination, but it would not necessarily give
rise to a reasonable inference that Employer's motivation
was illegal.’” Recognizing the Bank had not interviewed
Castro during its investigation, the court found the Bank
had no obligation to do so. Thus, the court concluded Castro
had failed to establish a triable issue of fact as to the first
cause of action.
2. Second Cause of Action for
Termination in Violation of Public
Policy
The court found the Bank was entitled to summary
adjudication on the second cause of action because it was
based on the same facts as the first cause of action.
3. Third Cause of Action for Retaliation
in Violation of Labor Code Section
1102.5
Noting it was illegal for an employer to retaliate
against an employee for disclosing information to a person
with authority over her if the employee had reasonable cause
to believe the information disclosed a violation of state or
federal statute, the court found Castro had established a
prima facie case for retaliation because she had presented
evidence of reporting improper sales practices to Jones, who
18
was the individual who ultimately fired her. However, the
court noted that “as described at length above, Plaintiff was
terminated for legitimate, nondiscriminatory reasons, and
there is no evidence to support any inference that this was
[sic] one report was the basis for the termination.”
4. Fourth Cause of Action for Intentional
Infliction of Emotional Distress
The court noted that the first element for a cause of
action for intentional infliction of emotional distress was
“‘extreme and outrageous conduct by the defendant with the
intention of causing, or reckless disregard of the probability
of causing, emotional distress.’” The court concluded the
comments made by Downes and Jones did not “rise to the
level of extremity and outrageousness required to support”
this cause of action.
5. Fifth Cause of Action for Failure to
Accommodate
The Bank argued that Castro received all
accommodations she requested or needed. Castro disagreed,
arguing she was not “fully accommodated” because instead of
providing an alternative to the iPad used for directing
customer traffic, Jones accused her of missing sales
opportunities. She also claimed the Bank once conducted a
“surprise visit” of the Tarzana center on a Thursday when
Castro was typically at doctor’s appointments, “in an
attempt to sandbag her.”
19
The court found Castro’s claims did “not relate to any
particular accommodation which she claims was denied, but
instead suggest[ed] that (a) she was accused of being slow
because of her accommodation and (b) her medical absences
were used as opportunities to build a case against her. Such
allegations do not fit within the rubric of a claim for failure
to accommodate. They may form part of the basis for a
disability or harassment claim, but even if true, they are not
evidence of a failure to accommodate.”
The court entered judgment in November 2018. Castro
timely appealed.
DISCUSSION
“On appeal after a motion for summary judgment has
been granted, we review the record de novo, considering all
the evidence set forth in the moving and opposition papers
except that to which objections have been made and
sustained. [Citation.] Under California’s traditional rules,
we determine with respect to each cause of action whether
the defendant seeking summary judgment has conclusively
negated a necessary element of the plaintiff’s case, or has
demonstrated that under no hypothesis is there a material
issue of fact that requires the process of trial, such that the
defendant is entitled to judgment as a matter of law.” (Guz
v. Bechtel National, Inc. (2000) 24 Cal. 4th 317, 334 (Guz).)
20
A. Discrimination in Violation of FEHA
1. Principles of Law
“California has adopted the three-stage burden-shifting
test established by the United States Supreme Court for
trying claims of discrimination, including age discrimination,
based on a theory of disparate treatment.” (Guz, supra, 24
Cal.4th at 354.) “Generally, the plaintiff must provide
evidence that (1) he was a member of a protected class, (2) he
was qualified for the position he sought or was performing
competently in the position he held, (3) he suffered an
adverse employment action, such as termination, demotion,
or denial of an available job, and (4) some other
circumstance suggests discriminatory motive.” (Id. at 355.)
Once the employee satisfies this burden, “the burden shifts
to the employer to rebut the presumption by producing
admissible evidence, sufficient to ‘raise[] a genuine issue of
fact’ and to ‘justify a judgment for the [employer],’ that its
action was taken for a legitimate, nondiscriminatory
reason.”9 (Id. at 355-356.) “If the employer sustains this
burden, the presumption of discrimination disappears.
[Citations.] The plaintiff must then have the opportunity to
attack the employer’s proffered reasons as pretexts for
discrimination, or to offer any other evidence of
discriminatory motive.” (Id. at 356.)
9 “Legitimate” reasons are those “facially unrelated to
prohibited bias, and which, if true, would thus preclude a finding
of discrimination.” (Guz, supra, 24 Cal.4th at 358.)
21
“A defending employer seeking summary judgment in a
discrimination case may meet its burden by showing that
one or more of these prima facie elements is lacking, or that
the adverse employment action was based on legitimate
nondiscriminatory factors.” (Cucuzza v. City of Santa Clara
(2002) 104 Cal. App. 4th 1031, 1038.) An employer is also
entitled to summary judgment “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.” (Guz, supra,
24 Cal.4th at 361.) “To defeat the motion, the employee then
must adduce or point to evidence raising a triable issue, that
would permit a trier of fact to find by a preponderance that
intentional discrimination occurred.” (Kelly v. Stamps.com
Inc. (2005) 135 Cal. App. 4th 1088, 1098.)
“The ultimate issue when discriminatory discharge is
alleged is what the employer’s true reasons were for
terminating the employee.” (McGrory v. Applied Signal
Technology, Inc. (2013) 212 Cal. App. 4th 1510, 1524
(McGrory).) “[A]n employer need not have good cause to
terminate an at-will employee. The reason for termination
need not be wise or correct so long as it is not grounded on a
prohibited bias.” (Ibid.) “Logically, disbelief of an
Employer’s stated reason for a termination gives rise to a
compelling inference that the Employer had a different,
unstated motivation, but it does not, without more,
reasonably give rise to an inference that the motivation was
a prohibited one.” (Id. at 1531-1532.) “Unless at-will
22
employers are to be held to a good-cause standard for
termination, no inference of discrimination can reasonably
be drawn from the mere lack of conclusive evidence of
misconduct by the employee.” (Id. at 1533.)
Additionally, while discrimination may be proven
circumstantially, the “‘[c]ircumstantial evidence of
“‘pretense’ must be ‘specific’ and ‘substantial’ in order to
create a triable issue with respect to whether the employer
intended to discriminate” on an improper basis.’” (Batarse v.
Service Employees Internat. Union, Local 1000 (2012) 209
Cal. App. 4th 820, 834.)
2. The Court Did Not Err in Granting
Summary Adjudication as to Castro’s
FEHA Claim
In a single cause of action Castro alleged that her
termination constituted discrimination on the bases of age,
gender, and disability in violation of FEHA. In ruling on the
Bank’s motion, the court found Castro had made a prima
facie showing of age discrimination, but had failed to make
one regarding gender or disability. The court further found
the Bank had produced sufficient evidence to establish a
nondiscriminatory reason for firing Castro, and that Castro
failed to present sufficient evidence to raise a triable issue of
fact whether the Bank’s reasons were false or pretextual.
Castro contends the court erred in finding: (a) she failed to
make a prima facie showing regarding gender and disability
23
discrimination; and (b) she failed to establish a triable issue
of fact with respect to pretext.
(a) Castro Failed to Make a Prima
Facie Showing Regarding Gender
and Disability Discrimination
Castro contends the court erred in finding she failed to
make a prima facie showing because the prima facie burden
is light, and because the court impermissibly resolved
disputes of fact against her. We disagree. “While the
plaintiff’s prima facie burden is ‘not onerous’ [citation], he
[or she] must at least show ‘“actions taken by the employer
from which one can infer, if such actions remain
unexplained, that it is more likely than not that such actions
were ‘based on a [prohibited] discriminatory criterion . . . .’”’”
(Guz, supra, 24 Cal.4th at 355.)
Regarding gender discrimination, Castro contends she
met her burden by showing she was a woman and her
replacement was a man. Our Supreme Court has stated that
to make a prima facie showing of discrimination based on
age, gender, or disability, a plaintiff must show that “some
other circumstance suggests discriminatory motive.” (Guz,
supra, 24 Cal. 4th 317 at 355.) Castro cites no authority
holding the mere fact that a terminated employee’s
replacement is of a different gender qualifies as a
circumstance suggesting a discriminatory motive.
Regarding disability discrimination, a plaintiff
demonstrates a prima facie case “by presenting evidence
24
that demonstrates, even circumstantially or by inference,
that he or she (1) suffered from a disability, or was regarded
as suffering from a disability; (2) could perform the essential
duties of the job with or without reasonable
accommodations, and (3) was subjected to an adverse
employment action because of the disability or perceived
disability. [Citation.] To establish a prima facie case, a
plaintiff must show ‘“‘“actions taken by the employer from
which one can infer, if such actions remain unexplained, that
it is more likely than not that such actions were ‘based on a
[prohibited] discriminatory criterion . . . .’”’”’” (Sandell v.
Taylor-Listug, Inc. (2010) 188 Cal. App. 4th 297, 310.) Castro
argues she “more than cleared” this hurdle by submitting
evidence of the comment from Jones about missing sales
opportunities by not using the iPad, and the comment from
Sanchez about her swollen hands. We disagree. Jones’s
comment can only reasonably be interpreted as a concern
that sales opportunities were being missed because Castro
was not using the iPad -- a concern she addressed by using
her computer. Castro admitted she was never disciplined for
not using the iPad, nor was it ever raised in a performance
review. Sanchez’s comments can only reasonably be
construed as evidencing concern for Castro’s wellbeing
and/or admiration for her ability to work with swollen
hands. Even without further explanation from the Bank, no
reasonable factfinder could infer from these two pieces of
evidence that Castro’s termination was motivated by animus
25
based on her disability. “Light” as the burden may be to
make a prima facie showing, Castro failed to meet it.
Moreover, it is unclear what facts Castro now contends
the court impermissibly resolved against her. The Bank did
not dispute that she was replaced by a healthy male, or that
Jones and Sanchez made the statements Castro alleged. In
its ruling, the court acknowledged that Castro’s replacement
was male and that Jones and Sanchez made the alleged
remarks. The court made no mention that Castro’s
replacement was not disabled, but nothing in the record
indicates it found otherwise. We find the court did not
impermissibly resolve these facts against Castro, and agree
Castro failed to make a prima facie case for gender or
disability discrimination.10
(b) Castro Failed to Raise a Triable
Issue of Fact Regarding Pretext
The court found the Bank had proffered evidence of a
nondiscriminatory reason for the termination. Castro does
not dispute this, but argues the court erred in finding she
had not demonstrated the existence of triable issues of
material fact whether the Bank’s proffered reasons were
false or pretextual.
10 In any case, the court found the Bank proffered legitimate
reasons for Castro’s termination and Castro does not contend
otherwise. Because we, like the trial court, conclude Castro
failed to raise a triable issue whether the Bank’s proffered
reasons for firing her were false or pretextual, it would be
irrelevant whether Castro had made these prima facie showings.
26
Castro first argues the trial court erroneously believed
she was required to provide direct evidence of
discrimination. The record demonstrates otherwise. The
court’s ruling expressly recognized that “‘[i]n employment
discrimination cases under FEHA, plaintiffs can prove their
cases in either of two ways: by direct or circumstantial
evidence.’” When the court later found “no evidence that
[Castro’s] age was discussed or taken into account by the
decision-makers,” nothing in the record indicates the court’s
use of the word “evidence” referred only to “direct” evidence.
“We presume the trial court knew and properly applied the
law absent evidence to the contrary.” (McDermott Will &
Emery LLP v. Superior Court (2017) 10 Cal. App. 5th 1083,
1103.)
Castro next argues she demonstrated triable issues of
material fact by presenting: (i) evidence that the reasons the
Bank proffered for investigating her in the first place were
false; (ii) evidence that the investigation was not fairly
conducted; (iii) evidence that the results of the investigation
did not support the conclusions that led to her termination;
(iv) evidence that Karachun was investigated and disciplined
in a significantly different way than Castro; and (v) other
evidence indicating the Bank’s animus toward her age and
disability. We address each contention in turn.
27
(i) Initiation of the
Investigation
Castro argues that, because she was a 5-foot tall, 66-
year-old woman who suffered from rheumatoid arthritis and
was unable to form a fist, she could not possibly be a safety
threat. Therefore, the Bank’s decision to investigate
whether she was a safety threat based on a video of her
supposedly shaking her fist at Karachun raised a triable
issue of fact whether the Bank’s reasons were false or
pretextual because the investigation itself was begun on a
pretext. We disagree.
We have reviewed the video and it clearly shows Castro
shaking a clenched hand in a threatening manner at two
employees. Moreover, no evidence in the record
demonstrates that when the investigation was begun, Bain
or Andersson had any knowledge that Castro suffered from
RA or claimed an inability to form a fist. Thus, no
reasonable factfinder could have concluded that the Bank’s
reasons for firing Castro were false or pretextual because it
lacked any basis for investigating whether she was a safety
threat.
(ii) Conduct of the Investigation
Castro complains the investigation was unfair because
the Bank chose not to interview her in violation of its policy
to always interview the affected employee, and because it
refused to gather or consider exculpatory evidence.
28
Interviewing Castro
As to the Bank’s alleged policy to interview affected
employees, Castro points to two pieces of evidence: her own
testimony that “you have to coach your associate. You have
to give them an opportunity to state their side. It is not --
you don’t just take one side; you speak to everyone”; and
Bain’s testimony that “[i]t was our practice that I would
have talked to [Castro] maybe in some form in the -- I mean
at some point in the investigation. As I told you in this case,
we did not. And there was a reason why.”
We find Castro’s testimony irrelevant -- the Bank did
not employ her as an investigator, and her testimony relates
to how a manager resolves issues among employees, not how
the Bank investigates employees accused of violating Bank
policy. Bain’s testimony, read in the light most favorable to
Castro, established that an investigator would typically talk
to the affected employee, but that it was not a Bank policy
that such an interview must occur. Moreover, after the Bank
began investigating Castro, Savant attempted to meet with
her, but she refused to come in for the meeting, citing a
doctor’s appointment.11 In any case, as an at-will employee,
Castro had no right to a hearing or to be informed of the
11 Castro’s claim that she offered to come in after the
appointment if Savant called her creates no triable issue of
material fact. Assuming she made such an offer, Savant’s
original request that Castro come in for a meeting is undisputed
evidence the Bank was not intentionally refusing to meet with
her.
29
allegations against her. (See, e.g., McGrory, 212 Cal. App. 4th
at 1536 [“As to the investigation being flawed and biased,
Employee complains that he was not informed of the charges
against him by Employer or [the investigator]. But he cites
no provision of his employment contract or employment law
in general entitling an at-will employee to advance notice
and a hearing before termination”].) On this record, no
reasonable factfinder could conclude from the Bank’s failure
to interview Castro that the reasons for terminating her
were false or pretextual.
Exculpatory Evidence
Castro also claims the Bank refused to gather
exculpatory evidence, refused to consider the effect of
Castro’s reporting three of the employees interviewed for
improper sales practices, and ignored the fact that Castro’s
disability rendered it impossible for her to form a fist or grab
employees.
Castro provides no factual support for her contention
that the Bank refused to gather exculpatory evidence, and
indeed, she herself demonstrates otherwise. In her appellate
brief, Castro points out that several of the interviewed
employees praised Castro and denied seeing or suffering
abuse. Castro’s knowledge of these statements comes largely
from the notes Bain entered into the Bank’s Siebel system --
demonstrating the Bank did in fact gather “exculpatory
evidence.”
30
As to the fact that Castro had reported three of the
employees for improper sales practices, there is no evidence
Bain was aware of such reports and in any case, several
employees who were not subjects of Castro’s reports --
Alonzo, Robeson, Gallardo, Bourbour, and Sanchez -- also
gave statements attesting to Castro’s improper behavior.
Bain did become aware of Castro’s RA during the
investigation but regarding the extent of any impairment,
Bain testified to having viewed the same video footage that
we have viewed -- where Castro is clearly seen raising her
hand in a threatening manner at two employees. Castro has
failed to raise a triable issue of material fact as to whether
the investigation was conducted fairly.
(iii) The Results of the
Investigation
The trial court found the Bank had presented evidence
of “a plethora of events, including what [the Bank]
accurately describes in its points and authorities as ‘bullying’
and cruel, unprofessional, and controlling behavior. . . . The
behavior included name calling (‘fat ass’, [‘]bitch’, ‘stupid’,
‘pussy’); mocking of elderly customers; disrespectful
comments to employees; grabbing employees by the arm
when . . . upset; disclosing private information; and
questioning the need for bereavement leave.” These are self-
evidently legitimate reasons for firing Castro.
Castro argues she raised triable issues of material fact
whether the Bank’s proffered reasons were pretextual
31
because “[w]ithin the notes taken by [the Bank]’s
investigators there is simply no evidence of ‘significant
mistreatment’ of employees, or that Plaintiff was bullying
employees. Rather, the evidence demonstrates that Plaintiff
was, broadly speaking, providing the support needed by [the
Bank]’s employees, and was exhibiting [the Bank]’s role
model behavio[r]s.” Castro is mistaken. Within the notes
taken by the Bank’s investigators there is ample evidence of
significant mistreatment and bullying of employees. For
example:
–Monica Alonzo stated Castro made comments
about the size of her stomach when she was
pregnant and sometimes made her feel
incompetent, but she was afraid to speak up
because she thought she would be fired. Alonzo
also reported Castro would question her sick
leave (i.e., you don’t look so sick) and stated
employees were scared of Castro. Castro shared
other employees’ confidential information,
yelled at customers, used profanity, and called a
teller stupid. Castro would also wave her hands
around when upset, point fingers in employees’
faces, and sometimes grab employees.
–Marissa Robeson said Castro scolded her, told
her she lacked common sense, and joked she did
not understand English. Robeson believed
Castro could use anger management classes.
–Mandana Bourbour stated she “absolutely [did]
not” get the support she needed from Castro,
32
and that Castro “absolutely [did] not”
demonstrate the Bank’s “role model behaviors”
or treat all employees equally with dignity and
respect.
Castro spends several pages of her opening brief
pointing out that some employees praised Castro or reported
no mistreatment or bullying. But such statements do not
contradict the statements of those who did report or
experience mistreatment, and therefore do not give rise to a
reasonable inference that the Bank did not believe Castro
had mistreated at least some of her employees.
Finally, Castro explains that she submitted a
declaration denying she abused or bullied her employees.
But the trial court was not considering whether there was a
triable issue of material fact whether Castro actually
behaved as the Bank alleged. “In demonstrating that an
employer’s proffered nondiscriminatory reason [for
terminating an employee] is false or pretextual, ‘“[an
employee] cannot simply show that the employer’s decision
was wrong or mistaken, since the factual dispute at issue is
whether discriminatory animus motivated the employer, not
whether the employer is wise, shrewd, prudent, or
competent. . . . 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,’ . . . and
hence infer ‘that the employer did not act for the [asserted]
33
non-discriminatory reasons.’”’” (Sandell v. Taylor-Listug,
Inc., supra, 188 Cal.App.4th at 314.) Castro’s denial of
wrongdoing does not demonstrate weaknesses,
implausibilities, inconsistencies, incoherencies, or
contradictions in the proffered reasons such that a
reasonable juror could find those reasons “unworthy of
credence.”
(iv) The Investigation and
Treatment of Karachun
Castro argues that the difference between how she (an
older, disabled female) and Karachun (a young, able-bodied
male) were investigated and disciplined constitutes
circumstantial evidence of discrimination because the Bank
interviewed Karachun as part of its investigation and,
although it substantiated some of the allegations against
him, punished him with only a written “policy reminder.” In
contrast, the Bank did not interview Castro as part of its
investigation and fired her.
“To establish discrimination based on disparate
discipline, it must appear ‘that the misconduct for which the
employer discharged the plaintiff was the same or similar to
what a similarly situated employee engaged in, but that the
employer did not discipline the other employee similarly.’
[Citation.] What appears here is that Employee was a
manager while [the other employees] were his subordinates.
Further, [the investigator] concluded that they engaged in
some different conduct. . . . ‘Different types and degrees of
34
misconduct may warrant different types and degrees of
discipline . . . .’ [Citations.] No inference of discrimination
reasonably arises when an employer has treated differently
different kinds of misconduct by employees holding different
positions.” (McGrory, supra, 212 Cal.App.4th at 1535-1536.)
As the Bank’s human resources manager Boyd-Harris
testified at deposition: “Castro was the leader in that
financial center, therefore as the leader she sets the tone and
the culture. So as the leader -- and the relationship manager
[Karachun] is a subordinate. The relationship manager was
not term[inat]ed because if there were behaviors unbecoming
of a leader that were egregious in nature and that sets the
tone, then we would not terminate the subordinate.”
Because Castro and Karachun were not similarly situated,
the differences in their investigation and discipline raise no
inference of pretext.
(v) Other Alleged Evidence of
Pretext
Finally, Castro argues she demonstrated pretext by
showing that the Bank decided to terminate her shortly after
she asked for medical leave, there was a culture of
discrimination at the Bank, and Jones told her she was
missing sales opportunities after she stated she could not
use an iPad due to her disability.
35
Temporal Proximity
“Pretext may be inferred from the timing of the
discharge decision . . . .” (Hanson v. Lucky Stores, Inc. (1999)
74 Cal. App. 4th 215, 224.) Castro argues she raised a triable
issue of material fact whether the Bank decided to fire her
before or after she requested medical leave in October 2016.
The Bank contends the evidence showed the decision to fire
Castro occurred before she requested medical leave.
In granting the Bank’s motion, the court resolved this
dispute in favor of the Bank. Castro challenges this
resolution, pointing to an October 17 entry in the Bank’s
Siebel computer system listing talking points for a
conversation with Castro, asking her to come in for a
meeting, and stating that, should Castro refuse, she would
be told that the Bank “will need to make decisions based on
the information we have and as such her employment will be
terminated effective immediately.” (Italics added.) It is
undisputed this conversation did not occur before Castro
requested medical leave. We therefore find there was
sufficient evidence to raise a triable issue whether the Bank
decided to terminate Castro before or after her request for
medical leave.
But while this conclusion could potentially have
affected the determination whether Castro had made a
prima facie showing of disability discrimination -- an
argument Castro does not make and that we therefore do not
address -- it would have made no difference to the ultimate
outcome of the motion. Even had the Bank decided to fire
36
Castro after her request for medical leave to undergo
shoulder surgery, Castro herself testified that, prior to
October 2016, she had taken time off from work for no fewer
than five surgeries since 2011, and had had no issues with
how the Bank handled her departure and return for those
surgeries. Other than temporal proximity, no evidence
linked the sixth surgery to the Bank’s decision to fire Castro.
As Castro herself recognizes, “temporal proximity . . . does
not, without more, . . . satisfy the secondary burden borne by
the employee to show a triable issue of fact on whether the
employer’s articulated reason was untrue and pretextual.”
(Loggins v. Kaiser Permanente Internat. (2007) 151
Cal. App. 4th 1102, 1112.)
Culture of Discrimination
Castro alleges she presented evidence of a “culture of
discrimination,” pointing to the comments from Downes and
others. However, Castro cites no authority permitting the
requisite animus to be imputed to the employer based on
remarks made by individuals uninvolved in the adverse
employment action. (See, e.g., Arnold, supra, 53 Cal.App.5th
at 427-428 [age-related comments made by some of plaintiff’s
supervisors insufficient to defeat summary judgment when
those supervisors were not materially involved in plaintiff’s
termination].) The sole remark attributed to anyone
involved in Castro’s termination was Jones’s statement that
Castro was missing sales opportunities because she was not
using the iPad. We find this remark insufficient to establish
37
that the Bank’s true reason for firing Castro was
impermissible animus.
Inability to Use iPad
Finally, Castro argues that Jones’s remark regarding
missing sales opportunities is “direct evidence” that his
actual motivation in firing her was her disability. We
disagree. As explained above, we find the remark does not
constitute either direct or indirect evidence of such animus.
Castro cites to three cases -- Lindahl v. Air France (9th
Cir. 1991) 930 F.2d 1434 (Lindahl); Cordova v. State Farm
Ins. Companies (9th Cir. 1997) 124 F.3d 1145 (Cordova); and
Sischo-Nownejad v. Merced Community College Dist. (9th
Cir. 1991) 934 F.2d 1104 (Sischo-Nownejad) -- none of which
assist her. In Lindahl, the Ninth Circuit found that
comments indicating a supervisor might have promoted a
male over a female due to stereotypical beliefs regarding
men and women, combined with several other factors
indicating the promoted male was less qualified than the
unpromoted female plaintiff, raised a genuine issue of fact
precluding the granting of summary judgment. (Lindahl,
930 F.2d at 1438-1439.) We fail to see how a statement that
Castro was missing sales opportunities evidences any sort of
the stereotyping discussed in Lindahl.
In Cordova, the Ninth Circuit held that “[c]alling
someone a ‘dumb Mexican’ is an egregious and bigoted
insult, one that constitutes strong evidence of discriminatory
animus on the basis of national origin.” (Cordova, supra,
38
124 F.3d at 1149.) Similarly, in Sischo-Nownejad, the Ninth
Circuit held that referring to a plaintiff as “‘an old war-
horse’” and to her students as “‘little old ladies’” and making
other derogatory remarks indicating age and gender bias
(such as making “sarcastic remarks regarding ‘you women’s
libbers’”), while at the same time subjecting the plaintiff to
less favorable working conditions, was sufficient to raise an
inference of discriminatory intent. (Sischo-Nownejad, supra,
934 F.2d at 1108, 1112.) Both examples are a far cry from
Jones’s remark to Castro. No reasonable factfinder could
have concluded that Jones’s remark was direct evidence of
his bias against Castro.
B. Termination in Violation of Public Policy
The court found the Bank was entitled to summary
adjudication on Castro’s cause of action for termination in
violation of public policy for the same reason it was entitled
to summary adjudication on Castro’s first cause of action for
discrimination in violation of FEHA. On appeal, Castro
argues this was erroneous because she presented sufficient
evidence to raise a triable issue of material fact whether the
Bank’s proffered reasons for her termination were false or
pretextual. As discussed above, she did not.
C. Retaliation
As with her claim of age discrimination, the court
found that while Castro had made a prima facie showing of
retaliation, she had failed to raise a triable issue of material
fact whether the Bank’s proffered reasons were false or
39
pretextual. On appeal, Castro makes two arguments. First,
as with her first two causes of action, she argues the court
erred in finding she failed to raise a triable issue of material
fact regarding the Bank’s reasons. We have disposed of that
argument above.
Second, Castro argues she raised issues of fact whether
the employees whose allegedly improper sales practices she
reported harbored retaliatory animus toward her, which
animus should be imputed to the Bank. However, Castro
cites no authority permitting the bias of a fired employee’s
subordinates to be imputed to the employer; the cases she
cites -- Reeves v. Safeway Stores, Inc. (2004) 121 Cal. App. 4th
95 (Reeves) and Poland v. Chertoff (9th Cir. 2007) 494 F.3d
1174 (Poland) -- hold only that in some circumstances, the
bias of an employee’s supervisor may be imputed to the
employer.
In Reeves, the court held that if a “supervisor annoyed
by a worker’s complaints about sexual harassment” decided
to “get rid of that worker by, for instance, fabricating a case
of misconduct, or exaggerating a minor instance of
misconduct into one that will lead to dismissal” and
“[a]nother manager, accepting the fabricated case at face
value” fired that employee “entirely without animus . . . [i]t
would be absurd to say that the plaintiff in such a case could
not prove a causal connection between discriminatory
animus and his discharge.” (Reeves, supra, 121 Cal. App. 4th
at 108-109.) But Reeves was careful to emphasize that only a
supervisor’s animus that could be so imputed: “Our
40
emphasis on the conduct of supervisors is not inadvertent.
An employer can generally be held liable for the
discriminatory or retaliatory actions of supervisors.
[Citation.] The outcome is less clear where the only actor
possessing the requisite animus is a nonsupervisory
coworker.” (Id. at 109, fn. 9.)
In Poland, the Ninth Circuit held that “if a
subordinate, in response to a plaintiff’s protected activity,
sets in motion a proceeding by an independent
decisionmaker that leads to an adverse employment action,
the subordinate’s bias is imputed to the employer if the
plaintiff can prove that the allegedly independent adverse
employment decision was not actually independent because
the biased subordinate influenced or was involved in the
decision or decisionmaking process.” (Poland, supra, 494
F.3d at 1181.) But the “subordinate” referenced was the
fired employee’s supervisor -- he was a “subordinate” of the
ultimate decisionmaker. (Id. at 1177, 1182.) Castro does not
cite, and we have not found, any authority permitting
animus felt by her subordinates to be imputed to her
employer.
D. Intentional Infliction of Emotional Distress
The court found that the comments made regarding
Castro’s age and disability did not rise to the level of
“extremity and outrageousness required to support” a cause
of action for intentional infliction of emotional distress. We
agree. On appeal, Castro does not address this holding;
41
instead she argues that “[g]iven that triable questions of fact
exist whether [the Bank] engaged in discrimination and
retaliation, triable questions of fact remain regarding
Plaintiff’s claim [of] Intentional Infliction of emotional
distress and are not preempted by workman’s
compensation.” As we conclude there are no triable issues of
fact whether the Bank engaged in discrimination and
retaliation, her claim necessarily fails. The Bank is entitled
to summary adjudication on this claim.
E. Failure to Accommodate
In opposing summary judgment, Castro claimed that,
contrary to the Bank’s arguments, she had not been “fully
accommodated” because: (1) rather than providing her with
an alternative to the iPad used to direct customer traffic,
Jones accused her of missing sales opportunities; and (2) the
Bank conducted a “surprise visit” of her financial center on a
Thursday when it was known that Castro was typically at a
doctor’s appointment. The trial court found Castro’s claims
“do not fit within the rubric of a claim for failure to
accommodate,” and therefore granted summary adjudication
on that cause of action. On appeal, Castro does not argue
the court erred in doing so. We therefore affirm the trial
court’s grant of summary adjudication as to Castro’s fifth
cause of action for failure to accommodate.
42
DISPOSITION
The judgment is affirmed. Respondents are awarded
their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICAL
REPORTS
MANELLA, P. J.
We concur:
COLLINS, J.
CURREY, J.
43