Melchionne v. Farmers Insurance Exchange CA2/2 ( 2021 )

Filed 3/25/21 Melchionne v. Farmers Insurance Exchange CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
ANTHONY MELCHIONNE, B302326
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC683538)
v.
FARMERS INSURANCE
EXCHANGE,
Defendant and
Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Teresa A. Beaudet, Judge. Affirmed.
Robert W. Thompson, Kirk D. Holman (pro hac vice) and
Aiman Dvorak (pro hac vice) for Plaintiff and Appellant.
Tharpe & Howell, Christopher S. Maile and Eric B. Kunkel
for Defendant and Respondent.
******
A long-time employee of an insurance company was
demoted as part of an organizational restructuring. He
thereafter sought, but did not get, two promotions because he did
not meet the geographical eligibility requirement for those jobs.
He is a white man in his 50s. He sued the company, claiming
that he was the victim of race, gender, and age discrimination as
well as retaliation. The trial court granted summary judgment
for the company. We independently agree that summary
judgment was appropriate, and affirm the dismissal of his
lawsuit.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
A. Demographics
Anthony Melchionne (plaintiff) is a 55-year-old white man.
He lives in Olathe, Kansas.
B. Work history
In September 1989, plaintiff started working for the
company that is now Farmers Insurance Exchange (Farmers).
1. Demotion in 2016
In 2015, plaintiff was working as a Director in the business
unit within Farmers called Claims Shared Services. During
plaintiff’s tenure, plaintiff’s boss was initially Rob Howard
(Howard) and then Mitchell Crawford (Crawford). While in that
unit, plaintiff’s performance was “successful,” although he had
several areas that still needed improvement.
In late 2015, Crawford did a business plan evaluation and
concluded that the Claims Shared Services unit was over-staffed;
Crawford proposed a restructuring of the unit that shifted several
of the employees who reported to plaintiff to other reporting
hierarchies and consequently necessitated the elimination of
2
plaintiff’s unnecessary “Director” position. A Farmers human
resources employee signed off on the proposed restructuring.
In mid-January 2016, Crawford and a human resources
employee met with plaintiff and informed him that his “Director”
position was being eliminated. Rather than terminate plaintiff,
however, Farmers offered him a position as a Vendor
Management Consultant in the Claims Shared Services’s
business unit. Because the salary for the Vendor Management
Consultant position was approximately $30,000 less than the
now-eliminated “Director” position, Farmers offered to continue
plaintiff’s “Director” salary for an additional 12 months before
allowing the new, lower salary to take effect. When plaintiff
asked for further accommodation, Farmers agreed to pay him a
blended salary (at the mid-point between the salary of the two
positions) for an additional six months. Plaintiff then accepted
the new position.
There is some dispute whether, at the January 2016
meeting, plaintiff expressed his feeling that his “Director”
position was eliminated because of his “age” and because he “was
close to retirement eligibility,” and that “this was unfair”;
plaintiff says he did, while Crawford and the human resources
employee say he did not. At some point thereafter, plaintiff
“explicitly outlined” to unnamed “superiors” his belief that his
demotion was the product of “discrimination.”
2. Failure to be hired for Strategy & Process
Consultant position
In the summer of 2017, plaintiff was approached by Callie
O’Hara (O’Hara), who was the “Head” of Process & Strategy for
the Claims Litigation business unit. O’Hara was based in
Farmers’s headquarters in Woodland Hills, California. O’Hara
needed help negotiating vendor contracts for Westlaw, and
3
Crawford had recommended plaintiff. O’Hara was impressed
with plaintiff’s work on those contracts.
Around the same time, O’Hara got authorization to create a
new position called Strategy & Process Consultant to support her
role as “Head.”
O’Hara encouraged plaintiff to apply for this new position,
and initially supported him getting that position, going so far in
one instant message exchange to tell him: “I know from
experience that you are the dude we need. We’ll make it
happen.”
In late August 2017, O’Hara posted the announcement for
the new position. This iteration of the posting did not specify
that relocating to Woodland Hills was either “required” or
“preferred.”
One day later, O’Hara updated the posting to specify that
applicants willing to relocate to Woodland Hills were “strongly
preferred” over those unwilling to do so.
In early September, plaintiff participated in a screening
interview for the position. He was 52 years old at the time. He
told the screener that he was unwilling to relocate to Woodland
Hills and instead proposed that Farmers make an exception for
him. Because of his unwillingness to relocate, he was not called
back for a second interview.
Two applicants were called for second interviews—namely,
Carrie Lane-Johnson (a 48-year-old black woman) and William
Houglam (a 58-year-old white man). Lane-Johnson was
ultimately offered the job of Strategy & Process Consultant.
3. Failure to apply for the Vendor Staff Manager
position
In early 2018, plaintiff’s supervisor got promoted, which
left the supervisory Vendor Staff Manager position vacant. The
4
supervisor was Christopher Britton (Britton). Britton was based
in Woodland Hills, California.
Britton encouraged several people, including plaintiff, to
apply for the opening.
Britton ended up making three postings for the Vendor
Staff Manager position. Initially, the posting specified that
relocating to Woodland Hills was “require[d].” When no one
applied during the posting’s first week, Britton amended the
posting to specify that the position was open to persons located in
any of the cities where Farmers had a “hub” office, which
included Olathe, Kansas. When Britton started receiving
applications from persons located in, or willing to relocate to,
Woodland Hills, Britton amended the posting a second time to
once again specify that a willingness to relocate to Woodland
Hills was a “strong requirement.”
Plaintiff never applied for this position because he was
unwilling to relocate to Woodland Hills.
A 39-year-old black woman was ultimately offered the job
of Vendor Staff Manager.
II. Procedural Background
Plaintiff sued Farmers1 for (1) discrimination in violation of
the Fair Employment and Housing Act (FEHA) on the basis of
race, gender, and age (Gov. Code, § 12940 et seq.),2 (2) retaliation
in violation of FEHA for complaining about his 2016 demotion,
1 Plaintiff also sued Farmers Insurance Group, Inc., later
substituted Farmers Group, Inc., in its place, and ultimately
stipulated to dismiss Farmers Group, Inc.
2 All further statutory references are to the Government
Code unless otherwise indicated.
5
(3) failure to prevent discrimination under FEHA, and (4)
wrongful termination in violation of public policy.3
Farmers moved for summary judgment or, alternatively,
summary adjudication, and supported its motion with nearly 800
pages of evidence. Plaintiff opposed, and supported his
opposition with an additional 400 pages of exhibits. Farmers
filed a reply.
After a hearing, the trial court issued a 16-page written
order granting summary judgment to Farmers on all of plaintiff’s
claims.
Following entry of judgment dismissing plaintiff’s lawsuit,
plaintiff filed this timely appeal.
DISCUSSION
Plaintiff argues that the trial court erred in granting
summary judgment for Farmers on all of his claims. Summary
judgment should be denied only when there are “genuine” or
“triable” issues of fact to be resolved at trial—that is, when “the
evidence would allow a reasonable trier of fact to find . . . in favor
of the party opposing the [summary judgment] motion.” (Serri v.
Santa Clara University (2014) 226 Cal.App.4th 830, 860 (Serri),
citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 845;
see also Davis v. Kiewit Pacific Co. (2013) 220 Cal.App.4th 358,
365.) We review a trial court’s summary judgment ruling
independently, without regard to its conclusions or its reasoning.
(Minish v. Hanuman Fellowship (2013) 214 Cal.App.4th 437,
455.) In so doing, we may not weigh conflicting evidence or
3 Plaintiff alleged a claim for wrongful discrimination in
violation of public policy, but the trial court construed it as a
claim for wrongful termination in violation of public policy.
Plaintiff does not dispute this construction on appeal.
6
assess the credibility of witnesses (Sandell v. Taylor-Listug, Inc.
(2010) 188 Cal.App.4th 297, 319), and must resolve any doubts
against summary judgment and in favor of trial. (Salas v. Sierra
Chemical Co. (2014) 59 Cal.4th 407, 415.) We will examine
plaintiff’s four claims separately.
I. Race, Gender, and Age Discrimination Under FEHA
A. Pertinent law regarding FEHA and summary
judgment
Among other things, FEHA makes it unlawful “[f]or an
employer, because of . . . race, . . . gender . . . [or] age . . . to
discriminate against [a] person in compensation or in terms,
conditions, or privileges of employment.” (§ 12940, subd. (a);
Wallace v. County of Stanislaus (2016) 245 Cal.App.4th 109, 122.)
In evaluating such claims, California uses a burden-shifting
mechanism. The plaintiff-employee must first establish a prima
facie case of discrimination by producing evidence to show that
“(1) he was a member of a protected class, (2) he was qualified for
the position he sought . . . , (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.” (Guz v. Bechtel National, Inc. (2000) 24
Cal. 4th 317, 355 (Guz).) If he meets this burden, it is rebuttably
presumed that the employer engaged in discrimination and the
burden shifts to the employer to set forth a legitimate,
nondiscriminatory reason for the “adverse employment action”
the plaintiff-employee suffered. (Id. at pp. 355-356, 361;
Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th
954, 964-965 (Swanson).) Once the employer sets forth such a
reason, the presumption disappears and the burden shifts back to
the plaintiff-employee to prove the employer “‘“engaged in
intentional discrimination.”’” (Swanson, at p. 965, quoting
7
McGrory v. Applied Signal Technology, Inc. (2013) 212
Cal.App.4th 1510, 1529 (McGrory).)
This burden-shifting mechanism works differently when
evaluating a summary judgment motion. (Serri, supra, 226
Cal.App.4th at p. 861.) Where, as here, the employer is the
movant for summary judgment, the employer bears the initial
burden to disprove an element of the employee’s prima facie case
or to adduce evidence supporting a legitimate, nondiscriminatory
reason for its adverse employment action. (Ibid.; Cheal v. El
Camino Hospital (2014) 223 Cal.App.4th 736, 741 (Cheal).) If it
does so, then the burden shifts to the employee to produce
“‘substantial evidence’” that (1) “‘the employer’s stated reasons
were untrue or pretextual,’” or (2) “‘the employer acted with a
discriminatory animus.’” (Serri, at p. 861, quoting Cucuzza v.
City of Santa Clara (2002) 104 Cal.App.4th 1031, 1038, italics
omitted; see also Guz, supra, 24 Cal.4th at p. 357.) For these
purposes, evidence is “substantial” only if it “‘permit[s] a rational
inference that the employer’s actual motive was discriminatory.’”
(Serri, at pp. 861-862, quoting Guz, at p. 361; Mamou v.
Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 715 [no
“substantial” evidence where “employee’s showing . . . is too weak
to sustain a reasoned inference in the employee’s favor”].) A
rational inference is one based on “‘specific’” evidence, and hence
“‘“based on more than mere speculation, conjecture, or fantasy.”’”
(Batarse v. Service Employees Internat. Union, Local 1000 (2012)
209 Cal.App.4th 820, 834 (Batarse); Cheal, at p. 755; McGrory,
supra, 212 Cal.App.4th at p. 1537.)
B. Analysis
The trial court correctly granted summary adjudication of
plaintiff’s claim that the decisions not to hire him for the
8
positions of Strategy & Process Consultant and Vendor Staff
Manager constituted discrimination under FEHA.4
Because it is undisputed that Farmers specified a job
qualification for both positions that gave a strong preference to
applicants willing to relocate to Woodland Hills and because it is
undisputed that plaintiff did not satisfy that qualification
because he was unwilling to relocate, plaintiff’s discrimination
claim ends up turning on whether Farmers adopted the
geographical qualification in order to disqualify him from
consideration based on his race, gender, or age.
1. Farmers carried its initial burden
Farmers carried its initial burden on summary judgment
because it “adduce[d] evidence supporting a legitimate,
nondiscriminatory reason” for the geographic preference for both
positions—namely, that it was very important that the person
who filled the two new positions be physically located in
Woodland Hills. (Serri, supra, 226 Cal.App.4th at p. 861.)
The Strategy & Process Consultant position was
specifically designed to aid O’Hara in her role as “Head” of her
business unit, and O’Hara was located in Woodland Hills. What
is more, the person holding the position would be tasked with
analyzing information regarding the litigation process,
evaluating the quality and accuracy of services provided by
O’Hara’s business unit, and proposing and implementing projects
to improve those services. As a result, the position would require
4 We need not address whether Farmers engaged in
discrimination prohibited by FEHA with respect to plaintiff’s
2016 demotion because the trial court found his FEHA-based
challenge to the demotion to be time-barred and because plaintiff
does not challenge that finding on appeal.
9
“continual[] interact[ion] with members of both the Claims and
Claims Litigation departments to identify new ways for making
further improvements,” an interaction made easier if everyone
was in the same physical locale. These facts are all undisputed.
The Vendor Staff Manager served the needs of several
business units within Farmers, all of which relied upon the
Vendor Staff Manager and his staff within Claims Shared
Services to negotiate their contracts with outside vendors; the
key decisionmakers in these other units were located in
Woodland Hills. Siting the Vendor Staff Manager in Woodland
Hills therefore “facilitates the kind of day-to-day interaction and
feedback that the position requires to operate effectively.”
Although, due to a personal circumstance, Britton had lived in
Texas for the first two years he held the Vendor Staff Manager
position, he ended up traveling to Woodland Hills at least two
weeks every month and, after he moved to Woodland Hills, he
“found the job much easier to perform.” These facts are all
undisputed.
2. Plaintiff did not carry his responsive burden
a. As to the Strategy & Process Consultant
position
(i) Pretext
Plaintiff contends that he raised triable issues of fact as to
whether Farmers’s reasons for preferring the Strategy & Process
Consultant position be staffed by someone located in Woodland
Hills were “‘untrue or pretextual,’” and hence a smokescreen for
discriminatory animus based on race, gender, or age. (Serri,
supra, 226 Cal.App.4th at p. 861.) He offers what boil down to
three arguments.
First, he asserts that O’Hara offered conflicting reasons for
not hiring him—namely, that (1) plaintiff was not qualified for
10
the position because he was unwilling to move to Woodland Hills,
and (2) plaintiff lacked “the maturity and stability to perform”
the position, did not “exhibit[] appropriate behavior that would be
expected of him in” the position, and was not “forthcoming.” To
be sure, an employer’s inconsistent reasons for an adverse
employment action can create a triable issue as to pretext where
the “‘“inconsistencies . . . or contradictions in the employer’s
proffered legitimate reasons for its action [are such] that a
reasonable factfinder could rationally find them ‘unworthy of
credence,’”’” and thus pretextual. (Serri, supra, 226 Cal.App.4th
at p. 863, quoting Hersant v. Department of Social Services (1997)
57 Cal.App.4th 997, 1005; see also Guz, supra, 24 Cal.4th at p.
363.) But the record does not support plaintiff’s assertion that
there was any inconsistency here. What is at issue in this case is
whether the geographical preference for the Strategy & Process
Consultant position was pretextual. And here, the sole reason for
that preference was because having the position-holder in
Woodland Hills was integral to the position. Thus, Farmers
never offered inconsistent reasons for its geographical
requirement. Further, even if we assume that what matters is
the reason(s) why plaintiff did not get the position, there is still
no inconsistency because the sole reason was his unwillingness to
relocate. What plaintiff offers up as a second, allegedly
inconsistent reason was, in reality, O’Hara’s further opinion that
she would not have hired plaintiff even if he had been willing to
relocate because, in the days before he applied for the position, he
had spontaneously broken down in tears in front of her,
repeatedly aired suspicions that Howard was somehow “out to get
him,” and gave her incorrect information about his salary in
11
order to “manipulate” her in negotiations for the position.5
O’Hara’s further opinion was relevant to causation. At no point
did O’Hara state that her concerns about plaintiff’s emotional
maturity, stability, and honesty were the reason he was not given
a second interview; as a result, there are no inconsistencies
giving rise to an inference of pretext.
Second, plaintiff asserts that a trier of fact could reasonably
infer that the geographical preference was pretextual from the
facts that he was otherwise qualified for the Strategy & Process
Consultant position and that O’Hara thought well of him and had
5 Plaintiff further seems to suggest that O’Hara fabricated
these incidents because she did not make a contemporaneous
notation of them. He cites Wallace v. Seton Family of Hosps. (5th
Cir. 2019) 777 Fed.App’x. 83, 93, for the proposition that failing
to make “contemporaneous” “written documentation” of an event
can be evidence of pretext. But Wallace dealt with a supervisor’s
failure to contemporaneously document the later-proffered
reasons for a termination decision. Here, the undisputed facts
show that O’Hara did not take any action based on these
incidents and did not rely on them when not extending plaintiff a
second interview. Indeed, plaintiff himself does not dispute that
these incidents occurred.
Relatedly, plaintiff argues that the trial court
impermissibly weighed O’Hara’s credibility when it noted that
plaintiff’s evidence of O’Hara’s positive impression of his work did
“not . . . tend[] to undermine” the evidence of O’Hara’s later-
expressed concerns about his emotional maturity and stability.
But the court’s comments do not evince a court crediting one
explanation over another; instead, they reflect a court’s
observation that O’Hara’s positive comments about plaintiff’s
past work and qualifications are not, as a matter of logic,
inconsistent with her misgivings about his temperament for the
Strategy & Process Consultant position.
12
all but promised him the position. However, whether plaintiff
was otherwise qualified casts no shadow over whether the
geographical preference was warranted for the Strategy &
Process Consultant position. And O’Hara’s views about plaintiff’s
competence and her failure to honor plaintiff’s expectation of
getting the position—or, for that matter, even her promise to give
him the position—do not constitute evidence that he was denied
the position due to his race, gender, or age. (Accord, Guz, supra,24 Cal.4th at pp. 360-361 [because FEHA “prohibit[s]
discrimination” but not “lying,” “an inference of intentional
discrimination cannot be drawn solely from evidence . . . that the
[employer] lied . . .”].)
Third, plaintiff asserts that there was no evidence that
Lane-Johnson was already located in (or otherwise willing to
relocate to) Woodland Hills, and that the award of the position to
her—as an unqualified applicant—shows that the geographic
requirement was a pretext. Although no party called the trial
court’s attention to direct evidence in the record regarding Lane-
Johnson’s geographic qualification, her qualification is
reasonably inferred from the undisputed facts that Farmers
enforced the geographic qualification by informing all applicants
that those who were willing to relocate would be first-considered
and another applicant aside from plaintiff did not pass the
screening interview because he was unwilling to relocate.
Plaintiff urges that we must infer Lane-Johnson’s
disqualification from the absence of evidence about her location,
but that is not how it works: Courts draw inferences from
evidence, not from the nonexistence of evidence. (Mann v.
Columbia Pictures, Inc. (1982) 128 Cal.App.3d 628, 651 [“‘A legal
inference cannot flow from the nonexistence of a fact; it can be
13
drawn only from a fact actually established. [Citations.]’”]; cf.
Crouse v. Brobeck, Phleger & Harrison (1998) 67 Cal.App.4th
1509, 1524 [“reasonable inferences [are] drawn from the facts”],
italics added.) Because there is no evidence from which we may
infer Lane-Johnson was not geographically qualified, we are left
with the sole reasonable inference that she was; as a result, there
is no dispute of material fact on this issue.
(ii) Discriminatory animus
For the first time in his reply brief on appeal, plaintiff
argues that he presented evidence that Farmers acted with
discriminatory animus. Specifically, he points to passages in his
deposition where he testified that O’Hara had called him to
report that Howard and O’Hara’s boss told her to impose a
geographic requirement for the position because they wanted
Lane-Johnson to get the job because “she had better longevity”
than plaintiff, who was “closer to retirement.”
While this may constitute direct evidence of discriminatory
animus on the basis of age, plaintiff has forfeited his right to rely
upon it.
Plaintiff did not mention this evidence in his opposition to
Farmers’s summary judgment motion. He did not cite it in his
separate statement. He did not argue it at the hearing on the
motion. He did not raise it in his opening brief on appeal.
Instead, he waited until his reply brief on appeal to cite and
argue this evidence for the first time. Although this evidence was
contained in the papers submitted to the trial court when that
court considered the motion, it is found on only three pages
scattered throughout the 436-page transcript of plaintiff’s
deposition submitted by Farmers; what is more, Farmers had
14
highlighted the portions of the deposition it was using, but had
not highlighted the passages plaintiff now urges upon us.
Plaintiff is therefore inviting us to reverse the trial court on
the basis of evidence that he insists the trial court should have
discovered on its own after combing through nearly 1,000 pages
of record. We decline this invitation. Although a trial court has
discretion to consider evidence not set forth in a party’s separate
statement (Castillo v. Glenair, Inc. (2018) 23 Cal.App.5th 262,
283), “summary judgment should not be reversed on [the]
grounds that the [trial] court should have considered
. . . evidence” that is “not referenced [by the parties], is hidden in
voluminous papers, and is not called to the attention of the court
at all.” (San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002)
102 Cal.App.4th 308, 316; see also, North Coast Business Park v.
Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 31 & fn. 6
[trial court is tasked with “impossible burden of determining both
the existence and significance of facts unmentioned by the
parties,” particularly when it is “buried in the middle of a one-
inch-thick set of documents”]; Lewis v. County of Sacramento
(2001) 93 Cal.App.4th 107, 116 [trial court “does not have the
burden to conduct a search for facts that counsel failed to bring
out”].) The unfairness of reversing in these circumstances is only
exacerbated where, as here, the party has waited until his reply
brief to mention this evidence, thereby denying the opposing
party any opportunity to respond. (E.g., Tyler v. Children’s Home
Society (1994) 29 Cal.App.4th 511, 526, fn. 8 [“[I]t is unfair to
raise new arguments for the first time in a reply brief”].)
Plaintiff’s sole justification for waiting this long is to point to the
allegations in his operative complaint that Howard told O’Hara
that Lane-Johnson had “greater longevity compared to
15
[p]laintiff,” and then to blame Farmers for not making a
summary judgment motion that “address[ed all] the material
facts set forth in th[at] complaint” (Teselle v. McLoughlin (2009)
173 Cal.App.4th 156, 168). This is no justification at all. It does
not explain plaintiff’s delay in bringing this evidence to the
attention of any court, and it ignores that once Farmers put forth
evidence showing a nondiscriminatory reason for failing to hire
plaintiff, it was incumbent upon plaintiff to respond with
evidence and not merely the allegations in his complaint. It goes
without saying that allegations are not evidence (e.g., Soderstedt
v. CBIZ Southern California, LLC (2011) 197 Cal.App.4th 133,
154), and we reject plaintiff’s attempt to equate the two in order
to excuse his thirteenth-hour attempt to overturn the trial court’s
summary judgment ruling on the basis of evidence plaintiff
plainly knew about, but elected not to present to that court.
b. As to the Vendor Staff Manager position
(i) Pretext
Plaintiff argues that he also raised a triable issue of fact as
to whether the geographic requirement for the Vendor Staff
Manager position was a pretext because Britton was able to do
the job from Texas for two years. It is undisputed, however, that
Farmers had hired Britton for that position with the
understanding he would move to Woodland Hills within the first
year of the job; that Farmers accommodated his personal
circumstances by allowing him to travel to Woodland Hills for at
least two weeks out of every month for another 12 months; that
Britton did relocate to Woodland Hills; and that the job was
“much easier” for Britton “to perform” once he did. That it was
possible for Britton to manage doing the job remotely but with
frequent, extended travel does not create a triable issue of fact as
16
to whether Farmers had a legitimate, nondiscriminatory reason
for requiring or strongly preferring that the person hired to
replace Britton be located in Woodland Hills. And it certainly
raises no inference that the geographic requirement was
motivated by discriminatory animus against plaintiff.
(ii) Discriminatory animus
Plaintiff suggests that the trial court erred, when finding
that there were no triable issues of material fact as to animus, in
relying upon Britton’s declaration that he did not consider race,
gender, or age when fashioning the geographic requirement or in
filling the position. In plaintiff’s view, Britton’s statement was
not competent evidence because it constituted a legal conclusion
and because “affidavits must cite evidentiary facts, not legal
conclusions or ‘ultimate facts.’” (Hayman v. Block (1986) 176
Cal.App.3d 629, 639.) We reject plaintiff’s suggestion for several
reasons. To begin, ignoring Britton’s statement does not create a
triable issue of material fact because ignoring it still leaves the
undisputed fact that the geographical requirement was justified
for nondiscriminatory reasons. More to the point, whether or not
Britton’s statement might encompass a legal conclusion, it was
also a factual statement about his reasons for implementing the
geographical requirement and for hiring. If we were to accept
plaintiff’s view that an employer accused of discrimination is
categorically barred from disclaiming a discriminatory motive for
the employment decisions being challenged in a lawsuit, then
summary judgment would never be appropriate. That is most
certainly not the law.
17
c. As to both positions
(i) Pretext and animus
Plaintiff also makes three arguments as to why the
geographical requirement for both positions was pretextual or
otherwise motivated by discriminatory animus.6
First, he asserts that Farmers’s insistence that the person
who filled the Strategy & Process Consultant and Vendor Staff
Manager positions be in Woodland Hills is pretextual because
plaintiff is able to point to other positions within Farmers that
can be performed remotely. But plaintiff never presented any
evidence that those other positions were similar to the positions
at issue in this case with regard to their need for geographic
proximity. Without evidence of similarity, Farmers’s differential
treatment of the positions means nothing.
Second, plaintiff contends that an inference of
discriminatory animus can arise when an employer tailors a job’s
requirements in order to exclude an employee from eligibility for
that job. (E.g., Edwards v. Occidental Chemical Corp. (9th Cir.
1990) 892 F.2d 1442, 1447); Coble v. Hot Springs School Dist.
(8th Cir. 1982) 682 F.2d 721, 728-729.) Because the geographical
requirements for both positions he applied for excluded him,
plaintiff continues, he has raised an inference of pretext. He is
wrong. The principle plaintiff relies upon applies where the
exclusionary requirement is unnecessary; it does not apply
where, as here, the undisputed facts show that the requirement
6 Before the trial court, he made a fourth and fifth such
argument—namely, that he was able to point to stray remarks
made by supervisors at Farmers regarding age discrimination
and to “me too” evidence regarding other Farmers employees
claiming to be victims of age discrimination. However, plaintiff
does not renew either of these arguments on appeal.
18
has a reasonable business justification. What is more, the fact
that plaintiff presented evidence that O’Hara was pressured to
add the job requirement does not create a triable issue as to
discrimination where, as here, it is undisputed that the
requirement is justified.
Lastly, plaintiff contends that, even if he did not
demonstrate any pretext as to each position individually, he has
demonstrated pretext when the cumulative totality of the
evidence is taken into account. Because we have not found any
evidence of pretext as to either position, adding them together
adds nothing to the equation. Zero plus zero still equals zero.
(ii) Trial court analytical errors
Plaintiff asserts that the trial court made several errors in
its summary judgment ruling insofar as it applied the wrong
standard and/or made analytical missteps. These assertions are
irrelevant because we are independently reviewing the ruling
applying the appropriate standards and because we have, in the
analysis set forth above, addressed—and rejected—each of the
alleged analytical missteps.
* * *
For all these reasons, we conclude that plaintiff failed to
satisfy his burden of producing “substantial evidence” that
Farmers’s reasons for the geographical requirement were
pretextual or that Farmers otherwise acted with a discriminatory
animus. (Serri, supra, 226 Cal.App.4th at p. 861.) Summary
adjudication of his FEHA-based discrimination claim was
accordingly appropriate.
II. Retaliation Under FEHA
FEHA also makes it unlawful “[f]or any employer . . . to
discharge, expel, or otherwise discriminate against any person
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because the person has opposed any practices forbidden under
this part . . . .” (§ 12940, subd. (h).) To prevail on a retaliation
claim, the plaintiff-employee must prove that “(1) he . . . engaged
in a ‘protect activity,’ (2) the employer subjected the employee to
an adverse employment action, and (3) a causal link existed
between the protected activity and the employer’s action.”
(Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) A
claim for retaliation uses the same, three-step burden shifting
mechanism as a claim for discrimination under FEHA. (Ibid.)
The trial court properly granted summary adjudication of
plaintiff’s retaliation claim for two reasons.
First, he forfeited this claim by presenting no argument
defending the retaliation claim in his papers opposing the motion.
(Wright v. Fireman’s Fund Ins. Companies (1992) 11 Cal.App.4th
998, 1011 [“It is clear that a defendant may waive the right to
raise an issue on appeal by failing to raise the issue . . . in
opposition to [a] summary judgment motion”].) He made passing
mention of his retaliation claim, but offered no argument. This
was insufficient to preserve the issue.
Second, and even if we overlook plaintiff’s forfeiture, he
presented no evidence of a causal link between his protected
activity and the employer’s action. Plaintiff presented evidence
that he engaged in protected activity by “explicitly outlin[ing]” to
“superiors” his belief that his January 2016 demotion was the
product of “discrimination.” Plaintiff also presented evidence
that he did not receive the two promotions he sought in 2017 and
2018. But he presented no evidence to connect the dots between
the two. More specifically, he presented no evidence indicating
that decision-makers regarding the two possible promotions had
any knowledge of his earlier complaints about his January 2016
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demotion. Plaintiff states in his appellate briefs that Howard
was involved in the January 2016 demotion and in the denials of
his two promotions, but the citations to the record he offers in
support of that statement at most establish that Howard was
involved in the denial-to-promote decisions. No evidence
suggests that Howard, O’Hara, or Britton had any knowledge of
his complaints about discrimination. (Arnold v. Dignity Health
(2020) 53 Cal.App.5th 412, 429 [summary judgment appropriate
where “there is no evidence that anyone involved in the decision
to terminate plaintiff’s employment knew about the complaint or
that it factored into their determination”].) At bottom, plaintiff
asks us to infer that the unnamed supervisors to whom he
complained somehow told Howard, O’Hara, or Britton about
those complaints, but this inference is based on nothing but
speculation and hence cannot constitute substantial evidence.
(Batarse, supra, 209 Cal.App.4th at p. 834.)
III. Failure to Prevent Discrimination Under FEHA
FEHA also prohibits “an employer” from “fail[ing] to take
all reasonable steps necessary to prevent discrimination . . . .”
(§ 12940, subd. (k).) This claim is by its nature derivative:
Without actionable discrimination, there can be no failure to
prevent discrimination. (Thompson v. City of Monrovia (2010)
186 Cal.App.4th 860, 880.) Because, as noted above, plaintiff’s
claim of discrimination under FEHA is subject to dismissal on
summary judgment, so too is his claim for failure to prevent that
same discrimination.
IV. Wrongful Termination in Violation of Public Policy
To prevail on a claim for wrongful termination in violation
of public policy, the plaintiff-employee must prove “‘(1) an
employer-employee relationship, (2) the employer terminated the
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plaintiff’s employment, (3) the termination was substantially
motivated by a violation of public policy, and (4) the discharge
caused the plaintiff harm.’ [Citation.]” (Nosal-Tabor v. Sharp
Chula Vista Medical Center (2015) 239 Cal.App.4th 1224, 1234-
1235.) The public policy at issue must be “(1) fundamental, (2)
beneficial for the public, and (3) embodied in a statute or
constitutional provision.” (Turner v. Anheuser-Busch, Inc. (1994)
7 Cal.4th 1238, 1256.) At least some courts have extended this
cause of action to reach “disciplinary action[s]” short of
termination. (Garcia v. Rockwell Internat. Corp. (1986) 187
Cal.App.3d 1556, 1562.)
The trial court properly granted summary adjudication of
plaintiff’s claim for wrongful termination in violation of public
policy.
Because plaintiff’s public policy-based claim in this case
rests on the public policy against discrimination and retaliation
embodied in FEHA, the propriety of summary judgment on
plaintiff’s FEHA-based challenges to his failure to be hired for
the Strategy & Process Consultant and Vendor Staff Manager
positions applies with equal force to his public policy-based
challenges to those same employment decisions. (See Mendoza v.
Western Medical Center Santa Ana (2014) 222 Cal.App.4th 1334,
1338.)
That leaves plaintiff’s public policy-based challenge to his
2016 demotion, on which the trial court made no FEHA-based
ruling because those FEHA-based claims were time-barred.
Plaintiff’s 2016 demotion was certainly not the product of
improper retaliation because he did not complain about the
demotion until after he was demoted. And his 2016 demotion was
also not the product of any discrimination on the basis of race,
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gender, or age because (1) Farmers offered undisputed evidence
that the elimination of his “Director” position was the product of
a legitimate restructuring of his business unit, and (2) plaintiff
offered nothing in response beyond his own surmise and
speculation that the restructuring was motivated by
discriminatory animus, which is plainly insufficient to raise a
triable issue of material fact.
DISPOSITION
The judgment of dismissal is affirmed. Farmers is entitled
to its costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
CHAVEZ
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