Green v. Merlin Global Services CA2/8

Filed 12/8/20 Green v. Merlin Global Services CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
GLORIA GREEN, B300432
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC697386)
v.
MERLIN GLOBAL SERVICES, LLC,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Holly J. Fujie, Judge. Affirmed.
Peter Law Group, Arnold Peter and Eyal Farahan for
Plaintiff and Appellant
Sheppard, Mullin, Richter & Hampton, Matthew S.
McConnell and Matthew G. Halgren for Defendant and
Respondent.
_____________________________
Plaintiff Gloria Green was terminated from her
employment with Merlin Global Services, LLC (Merlin) after she
took a week off of work allegedly without approval and in
violation of Merlin’s leave without pay policy. She sued Merlin
for race and gender discrimination, wrongful termination, and
intentional infliction of emotional distress. The trial court
granted summary judgment to Merlin, finding Green failed to
raise a triable issue of fact that Merlin’s reason for firing her was
pretext for discrimination. We agree and affirm.
BACKGROUND
Merlin specializes in providing flight operations, training,
maintenance, and logistics services for manned and unmanned
air vehicles. For many years, it subcontracted with General
Atomics to provide onsite services at the Grey Butte Field
Airport. Merlin maintains a team of five to 10 employees at Grey
Butte.
Merlin hired Green in August 2011 to work at Grey Butte
as a logistician, that is, a database manager. During Green’s last
year of employment, she reported to Jerry Roy, the Merlin site
lead at Grey Butte, and Brady Minich, the manager who oversaw
the Grey Butte team from Merlin’s headquarters in San Diego.
Prior to Minich, Jeremy Watrous was Green’s manager.
Merlin’s employee handbook governed the terms and
conditions of Green’s employment. When she was hired and
whenever a new version was issued, Green signed an
acknowledgement she received a copy. One policy in the
handbook covered paid time off (PTO). In order to use PTO, an
employee had to submit a request to his or her manager via the
Time and Attendance payroll system.
2
In January 2016, Green told her then-manager Watrous
that she was planning a trip to Belize in a few months. Because
she believed she would not have enough PTO saved, she asked
about requesting to go “negative” on her PTO. Watrous told her
she would need to complete and submit a form in order to get
approval. She submitted the form to go negative in her PTO by
74 hours, which Watrous approved.
In February 2017, Minich sent an email asking employees
to forecast their PTO use. Green responded she intended to use
PTO for several dates in May, and Minich informed her she had a
negative PTO balance of 55.99 hours. He explained, “It’s not
Merlin’s policy to allow negative PTO without approval and is
usually an exception made on only rare occasions.” Green
understood she needed approval and ended up not requesting the
time off.
In March 2017, Green told Jerry Roy she was planning to
take time off from June 27 to July 5 to move her mother from
Louisiana to California and she wanted to take a leave without
pay for it. Roy responded he would have to let her know if that
was acceptable. According to Green’s deposition testimony, this
was the first time she ever mentioned taking this time off.
In June 2017, Roy emailed Green and other employees
about availability for a quarterly meeting with Minich. Green
responded, “I will only be here on the 26th of that week. I’m on
vacation 27 June through 5 July.”
Minich visited Grey Butte on June 26, 2017, the day before
Green’s planned time off. He held a group meeting, which Green
attended. Green did not remember what was discussed, but a
major purpose of the meeting was to review various policies in
the recently released June 2017 version of the employee
3
handbook. Minich counseled employees on the PTO and leave
without pay policies. He explained employees would no longer be
able to obtain approval to go negative on their PTO; instead,
Merlin implemented a leave without pay policy to address special
circumstances where an employee might need to take time off
without sufficient PTO to cover it. He further explained that
“any request for leave without pay had to be done in writing
through Unanet, the Company’s electronic payroll and
timekeeping system, and it had to be approved by a manager.”
As written in the June 2017 handbook, the leave without
pay policy provided: “Leave without pay is not available to
employees unless specifically authorized by a manager, and
accompanied by a documented leave request. If leave is taken
without prior authorization it will result in disciplinary action.”
In his declaration in support of summary judgment, Watrous
reiterated this meant that any leave without pay “must be
requested in writing through the Company’s electronic
timekeeping and payroll system (Unanet) and it must then be
approved by a manager.”
Minich met with each employee individually on June 26,
2017, including Green. Minich went over a self-evaluation and
discussed various policies with her, including leave without pay
and PTO. Green told him she “would be out the rest of the week,”
but she did not say anything else about her leave request.
As planned, Green went to Louisiana on June 27, 2017.
At her deposition, she recalled having only the three
communications described above prior to leaving—the March
2017 conversation with Roy; the June 2017 email to Roy about
her availability; and the June 26, 2017 conversation with Minich.
She had a negative PTO balance and understood she needed to
4
comply with the leave without pay policy for this time off. Yet,
she did not submit a written request to take leave without pay for
the trip. According to Minich and Watrous, Green never
requested or obtained authorization to take leave without pay for
these dates.
Shortly after the June 26, 2017 meeting, Roy called Minich
to ask if Green was out on approved leave. Minich said he had
not approved any leave and informed human resources about her
unapproved absence. Watrous—who was at that point the Vice
President of Operations and General Manager at Merlin—
reviewed the situation and brought in third-party human
resources consultant Alisa Guralnick.
Watrous concluded Green had neither submitted the
required written request for her leave nor received authorization
from Minich. As a result, she had violated Merlin’s leave without
pay policy, despite having been counseled on it the day before she
left. He concluded Green’s employment should be terminated.
When Green returned to work on July 5, 2017, she met
with Roy, Minich, and Watrous, the latter two participating by
phone. Watrous told her she had violated the leave without pay
policy by taking an unapproved leave. According to Watrous,
Green responded, “Okay. So I screwed up. What’s going to
happen? Am I fired?” When asked about this at her deposition,
Green testified, “I don’t remember saying that, but I don’t
remember the call really.” Watrous told her she was being
terminated immediately.
Green gathered her belongings and left Grey Butte. Later
that day, she received a letter that said, “In accordance with our
policy on Leave Without Pay, and due to your failure to secure
approval of the [leave without pay] prior to taking the time off,
5
we are terminating your employment effective immediately, July
5, 2017.” Green testified at her deposition she was not “provided
any other reasons for [her] termination from Merlin” beyond
what was stated in this letter.
At her deposition, Green testified she did not know who
was involved with the decision to terminate her employment.
She admitted she never provided “any type of documented leave
request for leave without pay” in writing.
Green sued Merlin, alleging claims for race and gender
discrimination in violation of the Fair Employment and Housing
Act (FEHA) (Gov. Code, § 12940, subd. (a); all undesignated
statutory citations refer to the Government Code); wrongful
termination in violation of public policy; and intentional infliction
of emotional distress.
Merlin moved for summary judgment. It argued Green’s
violation of Merlin’s leave without pay policy constituted a
legitimate, nondiscriminatory reason for her termination, and
she presented no evidence to show this reason was pretext for
discrimination. As evidentiary support, it submitted excerpts
from Green’s own deposition, as well as declarations from Minich,
Watrous, and consultant Guralnick.
Merlin anticipated Green would rely on an argument that
two male non-African American Merlin employees—Tyler
Moorehead and Steve Ward—were treated less harshly than she
was for workplace incidents. Minich addressed the Moorehead
situation in his declaration: “On June 8, 2017, Tyler Moorehead
sent an email to Steven Yamaguchi in which he voiced his
concerns about Yamaguchi’s leadership. I was Mr. Moorehead’s
manager and I was copied on the email. Mr. Moorehead was a
Flight Test Engineer. Mr. Yamaguchi worked for Summaria,
6
which was the largest subcontractor at Grey Butte. The email
copied numerous high ranking members of the Air Force and
Summaria. Although I did not believe that Mr. Moorehead
violated any Company policies by sending the email, I did not
think it was the right approach to raise concerns. As a result, I
counseled Mr. Moorehead about the email and the better options
for raising such concerns in the future.”
Watrous addressed the Ward situation in his declaration:
“In approximately August 2016, I learned about a complaint by a
General Atomics employee that a Merlin employee by the name of
Steve Ward had knocked over a chair in a threatening manner at
the Grey Butte facility. I personally visited Grey Butte to
conduct an investigation. Mr. Ward was a Crew Chief Support
Sr. for Merlin. Mr. Ward told me that he did not intentionally
knock over the chair. I was unable to find any witnesses or other
evidence to deny or confirm the complaint. Although I was
unable to determine whether Mr. Ward intentionally knocked
over a chair in a threatening manner, I made the decision to
remove the site lead responsibilities from Mr. Ward.”
When questioned at her deposition about Moorehead and
Ward, Green admitted she had no personal knowledge of any
investigation or discipline of either employee, other than Ward’s
demotion from site lead.
In opposition to the motion for summary judgment, Green
argued Merlin’s legitimate reason was “inherently implausible”
and, as anticipated, she argued that Moorehead and Ward were
subject to lesser discipline for other incidents. In support of her
opposition, she presented her own two-page declaration
containing six paragraphs.
7
In her declaration, she testified to an “exemplary work
record” and “positive annual employment evaluations.” As for
her leave, she explained in paragraph 3: “In or about late May or
early June 2017, I verbally requested time off from June 27, 2017
to July 4, 2017 from Roy so that I could travel to Louisiana and
bring my 92-year-old mother back to California. Consistent with
past practice and policy, I sought and received advance verbal
approval from Roy for the absence. In addition, consistent with
past practice and procedure, I recorded my absence in a
department of the Air Force computer system that was designed
for and consistently used by Gray [sic] Butte staff to
communicate availability of Merlin’s employees with each other
and to the Air Force. Additionally, prior to taking my leave,
I confirmed my absence from June 27, 2017 to July 4, 2017 in an
email to Roy. Neither Minich nor Roy questioned me as to
whether my planned vacation had been approved in writing.”
In paragraph 6, she explained the circumstances
surrounding the June 26, 2017 meeting with Minich. When Roy
asked staff about availability for this quarterly check-up, she
“informed Roy that I was leaving to pick up my mother in
Louisiana on Tuesday, June 27 and his had [sic] been calendared
since as early as April 2017 and that Roy had approved the leave
in May or June 2017. Therefore, the check-up was scheduled for
Monday, June 26. During the check-up, Minich and I discussed
the fact that I was using Leave Without Pay (‘LWOP’). At no
time during the check-up did Minich mention that my LWOP was
not approved. Earlier, Roy informed me that Merlin employee
[sic] could no longer take LWOP, but that this particular LWOP
had been previously approved.”
8
On the issue of discipline of Tyler and Moorehead, Green
declared in paragraph 4: “While imposing lesser forms of
discipline as to these individuals, Defendant immediately and
abruptly terminated me for my alleged failure to obtain prior
written approval for my leave of absence.” She said nothing more
about Ward and Tyler or these incidents. She asserted in
paragraph 5 that she believed she was terminated because she
was an African-American woman, and she “was terminated when
other male and non-African employees were not terminated for
other instances of workplace misconduct.”
Finally, Green argued Merlin’s summary judgment motion
was deficient because Merlin did not include a blank column for
her responses in its separate statement of undisputed facts, as
required by rule 3.1350(h) of the California Rules of Court.
She did not respond to Merlin’s separate statement. Instead, she
submitted her own “Separate Statement of Undisputed Facts.”
She also objected to portions of the Guralnick declaration.
In reply, Merlin argued the court should ignore Green’s
declaration because it contradicted her deposition testimony.
It also argued she failed to offer evidence of pretext. It contended
Moorehead and Ward were not similarly situated to Green
because they held different positions and the incidents had
nothing to do with the leave without pay policy. It asserted
evidentiary objections to nearly all of the substantive statements
in Green’s declaration. And it argued the court should deem all
of its facts undisputed because Green did not respond to its
separate statement of undisputed facts.
9
The trial court granted the motion. The court found
Merlin’s separate statement of undisputed facts did not comply
with rules 3.1350(g) and (h) of the California Rules of Court, but
it exercised its discretion to consider the motion.
The court also sustained Green’s objections to the
Guralnick declaration and sustained all but three of Merlin’s
objections to Green’s declaration. As a result of sustaining
Merlin’s objections, Green’s declaration was essentially gutted of
substantive testimony. The court’s ruling excluded (1) the entire
paragraph 3 describing her alleged request for leave without pay;
(2) her claim in paragraph 4 that Ward and Moorehead were
subject to lesser discipline; (3) her statement in paragraph 5 that
she was terminated “when other male and non-African employees
were not terminated for other instances of workplace
misconduct”; and (4) her description of the June 26, 2017 meeting
with Minich in paragraph 6, including her positions that Roy
approved her leave without pay “in May or June, 2017” and that
she had discussed her leave without pay with Minich.
The court also found “conflicts in Plaintiff’s declaration and
deposition testimony. . . . While the court sustained various
objections to Plaintiff’s declaration on evidentiary grounds as
explained below, Plaintiff’s deposition testimony conflicts with
statements in her declaration in many instances. Thus, even if
the court had allowed the entirety of Plaintiff’s declaration into
evidence, there would have existed instances of conflict with her
deposition testimony which is not allowed.”
On the merits, the court held Merlin showed a
nondiscriminatory reason for her termination and Green failed to
offer evidence of pretext. It rejected Green’s evidence regarding
Moorehead and Ward because “Plaintiff stated in her deposition
10
that she did not know if Moorehead was disciplined [citation] and
did not know what specific behavior of Moorehead led to his
counseling by Defendant. [Citation.] With respect to Ward,
Plaintiff testified at her deposition that she did not know whether
the only action taken against Ward with respect to his using foul
language against employees was his being demoted from his site
lead position.” The court found Green’s deposition testimony
conflicted with her declaration on these points. In any case, the
court noted it excluded the statement in her declaration about
Ward and Moorehead on evidentiary grounds. In other words,
the court doubly rejected this evidence—it found her declaration
statements about Ward and Moorehead inadmissible, and even if
admissible, they could not be considered because they conflicted
with her deposition.
The court granted the motion as to Green’s claims for
wrongful termination and intentional infliction of emotional
distress because they rested on the viability of Green’s
discrimination claim. The court also granted the motion as to
punitive damages. Green appealed.
DISCUSSION
1. Standards of Review
“Code of Civil Procedure section 437c, subdivision (c)
provides that summary judgment is properly granted when there
is no triable issue of material fact and the moving party is
entitled to judgment as a matter of law. (Code Civ. Proc., § 437c,
subd. (c).) As applicable here, moving defendants can meet their
burden by demonstrating that ‘a cause of action has no merit,’
which they can do by showing that ‘[o]ne or more elements of the
cause of action cannot be separately established . . . .’ [Citations.]
Once defendants meet this burden, the burden shifts to plaintiff
11
to show the existence of a triable issue of material fact.
[Citation.]” (Nazir v. United Airlines, Inc. (2009) 178 Cal. App. 4th
243, 253.) We review the grant of summary judgment de novo.
(Ibid.)
“In cases alleging employment discrimination, we analyze
the trial court’s decision on a motion for summary judgment
using a three-step process that is based on the burden-shifting
test that was established by the United States Supreme Court for
trials of employment discrimination claims in McDonnell Douglas
Corp. v. Green (1973) 411 U.S. 792.” (Serri v. Santa Clara
University (2014) 226 Cal. App. 4th 830, 860 (Serri).) The
employer “ ‘has the initial burden to present admissible evidence
showing either that one or more elements of plaintiff’s prima
facie case is lacking or that the adverse employment action was
based upon legitimate, nondiscriminatory factors.’ ” (Id. at
p. 861.) If the employer meets this burden, the employee must
“ ‘demonstrate a triable issue by producing substantial evidence
that the employer’s stated reasons were untrue or pretextual, or
that the employer acted with discriminatory animus, such that a
reasonable trier of fact could conclude that the employer engaged
in intentional discrimination . . . .’ ” (Ibid.)
The employee does not carry this burden by showing the
employer’s reason was unwise or incorrect. “ ‘[T]he ultimate
issue is simply whether the employer acted with a motive to
discriminate illegally. Thus, “legitimate” reasons [citation] in
this context are reasons that are facially unrelated to prohibited
bias, and which, if true, would thus preclude a finding of
discrimination.’ ” (Serri, supra, 226 Cal.App.4th at p. 861.)
In other words, “an inference of discrimination cannot be drawn
solely from evidence, if any, that the company lied about its
12
reasons.” (Guz v. Bechtel National, Inc. (2000) 24 Cal. 4th 317,
360 (Guz).)
Summary judgment is warranted for the employer
“ ‘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.’ [Citation.] It is not sufficient for an employee to
make a bare prima facie showing or to simply deny the credibility
of the employer’s witnesses or to speculate as to discriminatory
motive. [Citations.] Rather it is incumbent upon the employee to
produce ‘substantial responsive evidence’ demonstrating the
existence of a material triable controversy as to pretext or
discriminatory animus on the part of the employer.” (Serri,
supra, 226 Cal.App.4th at pp. 861–862.)
Notably, Green has not challenged any of the trial court’s
evidentiary rulings excluding most of her declaration from
consideration on summary judgment. “ ‘Where a plaintiff does
not challenge the superior court’s ruling sustaining a moving
defendant’s objections to evidence offered in opposition to the
summary judgment motion, “any issues concerning the
correctness of the trial court’s evidentiary rulings have been
waived. [Citations.] We therefore consider all such evidence to
have been ‘properly excluded.’ [Citation.]” ’ ” (Roe v. McDonald’s
Corp. (2005) 129 Cal. App. 4th 1107, 1113 (Roe).)
2. The Court Properly Considered Merlin’s Separate
Statement of Undisputed Facts
Green initially argues the judgment should be reversed
because Merlin’s separate statement of undisputed facts did not
comply with formatting requirements in rule 3.1350(h) of the
California Rules of Court. That rule requires the separate
13
statement contain two columns: a left column setting forth each
undisputed material fact and citations of the supporting
evidence; and a right column left blank for the opposing party’s
response. (Ibid.) Merlin acknowledges its separate statement
did not comply with the rule because it omitted the blank right
column for Green’s response and instead placed the citations of
its supporting evidence in that column.
Due to this formatting error, Green did not respond to the
undisputed facts set out in Merlin’s separate statement. Instead,
she objected to it on formatting grounds. She suggested Merlin
did not send her the file in Word format (Cal. Rules of Court, rule
3.1350(i)), so she claimed the only way she could respond “was to
reconstruct the Separate Statement consisting of 42 pages with
416 allegedly separate statements.” She filed her own “Separate
Statement of Undisputed Material Facts.” It set forth 22
allegedly undisputed facts, supported by citations of her own
declaration, the declarations from Minich and Waltrous, and the
June 2017 employee handbook.
In its summary judgment reply brief, Merlin explained it
sent Green the moving papers over four months before her
opposition was due, but Green never once complained about the
separate statement formatting. Nor did Green request an
electronic copy of the document until just days before the
opposition was due. Merlin provided an electronic copy. Green
did not complain until she raised the issue in her opposition to
the motion for summary judgment. Merlin claimed this was a
tactical decision, so the court should consider all of Merlin’s facts
undisputed.
14
The trial court found Merlin’s separate statement violated
formatting rules, which caused Green’s separate statement to be
formatted incorrectly. The court nonetheless exercised its
discretion to consider the motion. (Code Civ. Proc., § 437c,
subd. (b)(1).)
We review the trial court’s decision to overlook the
formatting error for abuse of discretion. (Rush v. White Corp.
(2017) 13 Cal. App. 5th 1086, 1097.) We find none. The court was
free to credit Merlin’s explanation that Green did not object to
the formatting error for months and did not request an electronic
copy until days before her opposition brief was due. Regardless,
she did not stand idly by: she filed her own separate statement
setting forth her claimed undisputed facts with supporting
citations of her evidence.1 This case was not complex. The
evidentiary record was not voluminous. The court’s decision to
overlook the parties’ formatting failures hardly “fall[s] outside
the bounds of reason.” (Id. at p. 1098, internal quotation marks
omitted.)
1 Green claims she suffered prejudice because the trial court
failed to consider evidence that Roy had approved her leave and
Ward and Moorehead were issued lesser forms of discipline for
more serious conduct. She is apparently referring to her own
declaration on these points. The court declined to consider this
evidence not because the parties’ separate statements were
formatted incorrectly, but because it sustained Merlin’s
objections to these statements.
15
3. There Is No Triable Issue of Race or Gender
Discrimination
Merlin Has Shown a Legitimate, Nondiscriminatory Reason
for Green’s Termination
Both in the trial court and on appeal, Merlin assumed
Green presented a prima facie case of race and gender
discrimination, so it presented its legitimate, nondiscriminatory
reason for Green’s termination: her violation of the leave without
pay policy. As outlined above, Minich and Watrous submitted
declarations showing Green violated the leave without pay policy
because she did not submit a documented leave request and
obtain approval from her manager, Minich. She took her
unauthorized absence the day after she was specifically trained
on the June 2017 employee handbook and the new leave without
pay policy. Merlin’s “explanation of nondiscriminatory reasons
was credible on its face” (Guz, supra, 24 Cal.4th at p. 357), and
“ ‘unrelated to unlawful discrimination’ ” (Serri, supra, 226
Cal.App.4th at p. 861).
Green attacks Merlin’s showing by claiming Merlin offered
“conflicting reasons” for her termination—both the violation of
the leave without pay policy and “job abandonment.” Her
argument is premised on a single sentence taken out of Watrous’s
declaration: “Based on my investigation, I concluded that Ms.
Green had violated Merlin policy despite having been specifically
trained on it on June 26, 2017. I concluded that Ms. Green did
not submit the required written request for time off without pay,
nor did she receive authorization from her manager, Mr. Minich.
I felt that by disregarding Company policy and taking time off
without approval, Ms. Green had in essence abandoned her job.
Based on the circumstances, and in particular the very recent
16
training on the time off policies, I made the decision to terminate
Ms. Green’s employment.” (Italics added.)
As Watrous’s full statement makes plain, no plausible
reading of his testimony could support an inference that a
separate and conflicting reason for Green’s termination was “job
abandonment.” Watrous’s comment simply explained how he
viewed her violation of the leave without pay policy. At the time
Green was fired, no one from Merlin suggested she was being
terminated for “job abandonment” as opposed to violating the
leave without pay policy. During the July 5, 2017 meeting,
Watrous specifically told her she violated the leave without pay
policy and was being terminated. The letter she received later
the same day confirmed her termination was based on her leave
policy violation. Most telling, Green herself testified at her
deposition she was not “provided any other reasons for [her]
termination from Merlin” beyond what appeared in this letter.
Watrous’s isolated and after-the-fact comment in his declaration
does not create a genuine issue of material fact that Green was
terminated for any reason other than violating the leave without
pay policy.
Next, Green contends she did not actually violate the leave
without pay policy. Instead, she claims she obtained “verbal
approval” from Roy and documented it in an email and in the “Air
Force computer system.”2 The only evidence she offered for this
2 Minich explained this “Air Force computer system” “is not a
Merlin system, and it is not accessible except when onsite at Grey
Butte and possessing an active Air Force network account.
No Merlin employee at corporate headquarters can access this
system. This system has nothing to do with Unanet (Merlin’s
electronic payroll and timekeeping system), nor does it have
17
position was paragraph 3 of her declaration. The trial court
sustained Merlin’s objections to that paragraph, so we may not
consider it. (Roe, supra, 129 Cal.App.4th at p. 1113.)3 Green also
argues the leave without pay policy required only a “documented
leave request,” not the use of the Unanet system as Minich
claimed. She offered no evidence to rebut Minich’s testimony
that he told employees at the June 26, 2017 training to use the
Unanet system to request leave without pay, which was
consistent with the policy that any leave without pay request be
“documented.” In any case, Green did not comply with the leave
without pay policy even as she understood it. Regardless of how
a leave request must be “documented,” she testified she never
provided “any type of documented leave request for leave without
pay” in writing.
anything to do with Company policy as to the process for
submitting requests for time off including leave without pay.
Prior to recently reviewing the pages marked as Exhibit 22, I did
not ever see them before, nor did I ever access the Air Force
calendaring system while I was Plaintiff’s manager at Grey
Butte, as this system was not a tool used by Merlin management
including myself.” At her deposition, Green similarly testified
the Air Force computer calendaring system was used to
communicate with Air Force and on site Merlin personnel, but
entries did not go to Merlin’s corporate office.
3 Green suggests we must accept her statement that she
obtained approval from Roy because Merlin did not submit a
declaration from Roy. She fails to acknowledge the court
excluded her statement on evidentiary grounds, so no rebuttal
evidence was necessary.
18
Merlin discharged its burden on summary judgment to
provide a legitimate, nondiscriminatory reason for Green’s
termination.
Green Failed to Offer Admissible Evidence of Pretext or
Intentional Discrimination
Green can only survive summary judgment if she offers
“ ‘substantial responsive evidence’ demonstrating the existence of
a material triable controversy as to pretext or discriminatory
animus.” (Serri, supra, 226 Cal.App.4th at p. 862.) Green offered
no direct evidence of discriminatory animus. At her deposition
she admitted she had none. She instead attempts to undercut
Merlin’s reason for terminating her—and thereby raise an
inference of intentional discrimination—because (1) male non-
African American employees Ward and Moorehead were subject
to lesser discipline for workplace incidents; and (2) Merlin failed
to follow its own internal policies prior to terminating Green.
We reject both points.
Initially, Green devotes significant effort to arguing the
trial court erred when it disregarded portions of her declaration
as conflicting with her deposition testimony. (See, e.g., Whitmire
v. Ingersoll–Rand Co. (2010) 184 Cal. App. 4th 1078, 1087.)
We need not address this issue. Despite any conflicts between
Green’s declaration and deposition testimony, the court
independently excluded nearly all of Green’s declaration based on
Merlin’s evidentiary objections. Green completely ignores these
evidentiary rulings, so we must disregard the substantive
portions of her declaration anyway. (Roe, supra, 129 Cal.App.4th
at p. 1113.)
19
On the merits, Green is correct that evidence of differential
treatment of other employees can show pretext. (See Wills v.
Superior Court (2011) 195 Cal. App. 4th 143, 172 (Wills).)
However, the comparable employees must be similarly situated to
the plaintiff. (Ibid.) “Another employee is similarly situated if,
among other things, he or she ‘ “engaged in the same conduct
without any mitigating or distinguishing circumstances.” ’ ”
(Ibid.) When disparate discipline is involved, “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.’ ” (McGrory v. Applied Signal
Technology, Inc. (2013) 212 Cal. App. 4th 1510, 1535 (McGrory).)
The undisputed evidence showed the Ward and Moorehead
incidents bore no resemblance to Green’s leave policy violation.
Moorehead sent an email that Minich did not think was the
“right approach to raise concerns” but did not violate company
policy. Ward was the subject of an unconfirmed complaint for
knocking over a chair “in a threatening manner,” which led
Watrous to remove him as site lead. In contrast, Green clearly
and directly violated the leave without pay policy despite being
trained on the policy the day before she left. These disparate
situations involved exactly the type of “ ‘ “mitigating or
distinguishing circumstances” ’ ” that justifies different
treatment. (Wills, supra, 195 Cal.App.4th at p. 172; see McGrory,
supra, 212 Cal.App.4th at p. 1536 [“ ‘Different types and degrees
of misconduct may warrant different types and degrees of
discipline.’ ”].)
20
Green’s second pretext argument is that Merlin failed to
follow its own internal procedures when it terminated her. This
contention is a repackaging of her claim she had complied with
the leave without pay policy, which we have rejected. She adds
that the leave without pay policy provides that a violation of the
policy could result in “disciplinary action,” not necessarily
termination. From that, she suggests, “Consistent with its
pattern and practice, Green should have been afforded some
lesser form of progressive discipline relative to the nature of her
alleged offense, as were Ward and Moorehead.” She has cited no
evidence to show a “pattern and practice” at Merlin for
“progressive discipline” that supported some lesser step before
termination for a leave policy violation.
Finally, Green attempts to bolster her claim by citing
recently enacted section 12923, subdivision (e), which provides
that “[h]arassment cases are rarely appropriate for disposition on
summary judgment.” (§ 12923, subd. (e), italics added.) She has
not asserted a harassment claim. Even if it she had, this
provision cannot substitute for her lack of “ ‘substantial
responsive evidence’ ” rebutting Merlin’s showing of a legitimate,
nondiscriminatory reason for her termination. (Serri, supra, 226
Cal.App.4th at p. 862.)
Summary judgment on her discrimination claim was
proper.
4. Summary Judgment Was Proper on Green’s
Remaining Claims
On appeal, Green does not separately address her wrongful
termination claim and appears to concede her intentional
infliction of emotional distress claim rests on the viability of her
discrimination claim. Because there is no triable issue of
21
discrimination, summary judgment on these dependent claims
was proper. (See Gibbs v. Consolidated Services (2003) 111
Cal. App. 4th 794, 801.) Without valid underlying claims, the trial
court properly granted summary judgment on Green’s request for
punitive damages.
DISPOSITION
The judgment is affirmed. Respondent is entitled to costs
on appeal.
BIGELOW, P. J.
We Concur:
STRATTON, J.
WILEY, J.
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