Opinion
C081747
10-25-2019
SANTIAGO CONTRERAS, Plaintiff and Appellant, v. UNITED AIRLINES, INC., Defendant and Respondent.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 34201500174953)
Following his discharge from United Airlines, Inc. (United), Santiago Contreras filed suit against United claiming he was unlawfully terminated because of his disability. United afterward filed a motion for summary judgment, contending that Contreras was instead fired for a legitimate, nondiscriminatory reason—namely, because Contreras had been dishonest and had violated company policy. To support its motion, United offered evidence showing Contreras had called in sick each day he was scheduled to work in September of 2014, and then to justify his absences, offered two conflicting doctor's notes. One of those notes claimed Contreras was under a doctor's care in Mexico from September 1 to 28, and was unable to return to the United States until September 28. But because Contreras had used his United flight benefits while out, United knew he had in fact returned to California on September 8, and had afterward flown to Florida and back to California—all during times he was allegedly in Mexico. After giving Contreras an opportunity to explain this discrepancy—during which time Contreras varied as to when he returned from Mexico—United terminated Contreras on the stated ground that he had violated United's policies relating to honesty, sick leave, and travel.
Further date references are to 2014 unless otherwise indicated.
The trial court granted summary judgment in favor of United. On appeal, Contreras raises three general arguments.
First, he argues the trial court failed to apply the appropriate standard of review for summary judgment. But he supports this argument with little reasoning, and we find the claim unfounded.
Second, he contends his offered evidence raised a reasonable inference that United's stated reason for firing him was actually a pretext for discrimination. But his offered evidence only shows that United never contacted his doctor in Mexico to learn more about his medical condition. Although United's failure to contact Contreras's doctor may assist a circumstantial showing of discrimination, it was not sufficient in itself to support a rational inference that intentional discrimination occurred.
Finally, Contreras claims the trial court wrongly opined that United had a nondiscriminatory intent. In Contreras's view, courts cannot assess evidence concerning an employer's intent or motive on summary judgment. Courts, however, routinely do so in summary judgment proceedings concerning alleged employment discrimination. It is true that many of these cases involve material disputes about an employer's motive, and summary judgment would be inappropriate in that event. But when, as here, an employer has made a sufficient showing of innocent motive, and the employee has not placed that showing in material dispute, a court may grant summary judgment in the employer's favor.
We affirm the judgment.
BACKGROUND
Contreras is a former employee of United who worked as a ramp service employee at Sacramento International Airport. His job entailed, among other things, loading and unloading luggage from aircraft.
Beginning on September 3, 2014, Contreras called United's automated sick line to report that he was sick and unable to show for work. He did the same for all 16 days he was scheduled to work in September of 2014. United paid Contreras for these absences.
When Contreras returned to work in early October of 2014, United asked him to produce a medical note to explain his absences. A month later, Contreras provided a note from a doctor in Mexico. The note, which was dated October 4, stated: "I hereby certify that Mr. Santiago Contreras was under my care from 9/1/14 to 9/28/14. He has been presenting gastric problems for the last 12 years. During his stay here in Mexico he had an acute flare up of his c[h]ronic gastritis. I kept him with oral treatment. Nevertheless, during the last week of the month he presented acute symptoms and was kept in rest and I.V. fluids and was able to go back to the U.S.A. the 28th/Sept./2014." Contreras reviewed the note before submitting it to United.
Shortly after Contreras provided this note, however, United realized that the timeline of Contreras's doctor's note conflicted with Contreras's flight records. As a United employee, Contreras was able to fly free using his United-provided travel benefits; but when he used these benefits, United had a record of his doing so. According to these records United found Contreras had flown from Mexico to California on September 8, from California to Florida on September 8, and from Florida to California on September 23.
After noticing these discrepancies, Contreras's supervisor scheduled a meeting with Contreras to discuss his doctor's note. A representative from Contreras's union also joined the meeting. At the meeting, Contreras's supervisor showed him the discrepancy between his flight records and the doctor's note. He then asked both about the discrepancy in the dates and about Contreras's delay in providing a doctor's note. In response, and with the help of his union representative, Contreras prepared and signed a statement stating he was in Mexico until the "latter part of September"—an assertion that was consistent with his doctor's note. He also explained in the statement that he initially had difficulty getting the doctor to send the note, but his sister in Mexico was ultimately able to pick up the note from the doctor. Contreras told his union representative what to write in the statement, and after the representative read the statement back to him, Contreras signed it. Following the meeting, United suspended Contreras.
Shortly after, United scheduled a hearing for December of 2014 to consider whether Contreras should be terminated for failing to "meet job expectations and the guidelines of Company pass travel, honesty, and sick leave." The referenced guidelines were United's Working Together Guidelines, and they provided the policies governing Contreras's employment. Among other things, the guidelines directed employees to "[b]e truthful in all communications," and warned that "abuse of sick leave. . . may result in discipline." In discussing sick leave, the guidelines added that "in most instances a co-worker who is too sick to work is also too sick to travel using his or her company travel privileges," and explained that employees with questions about the appropriateness of traveling while on sick leave "can clear travel with [their] supervisor or HR Partner prior to travel."
Contreras attended the hearing on his proposed termination with three representatives from his union. United management from Sacramento International Airport presented the case for Contreras's termination, and the union representatives argued on Contreras's behalf. United's general manager for San Jose International Airport, Urban Grass, presided over the hearing.
At some point in the hearing, Contreras shared a second doctor's note (from the same doctor in Mexico) that was dated October 2, 2014—two days before the date listed on the first note. Like the first note, this note said Contreras was under a doctor's care from September 1 to 28. But unlike the first note, it added that Contreras was kept in rest and treated with intravenous fluids "during the first week" of the month, not the last, and made no mention as to when Contreras returned to the United States. The second note also flipped the sequence of Contreras's treatment. In the first note, Contreras was initially given "oral treatment," but when that proved inadequate, he was "kept in rest and I.V. fluids." But in the second note, Contreras was first treated "with bed rest and I.V. fluids and medication," and then afterward "continued with oral treatment and diet measures." The note's author did not explain the reason for the changes.
Following the hearing, Grass issued a decision finding that Contreras's termination was warranted, explaining that Contreras "fell short of meeting the Working Together Guidelines in the areas of Honesty, Pass Travel, and Sick Leave." Grass wrote that Contreras, by submitting the first doctor's note about his absences, was "alleging he was under Dr. Agustin de Jesus Oceguera H.['s] care in Mexico" at a time when he was flying from California to Florida and back. This and United's other evidence, Grass wrote, showed that "Contreras was not open and honest in his communication with the company." A United human resources manager from Denver later affirmed the decision after Contreras filed a grievance.
In February of 2015, Contreras filed an administrative complaint with the Department of Fair Employment and Housing (DFEH), in which he alleged that United took adverse actions against him because of his "Disability, Medical Condition - including Cancer." Contreras contended these actions violated the California Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.)—an act that, as relevant here, makes it unlawful "[f]or an employer, because of the . . . physical disability. . . of any person, . . . to discharge the person from employment . . . or to discriminate against the person in compensation or in terms, conditions, or privileges of employment." (Gov. Code, § 12940, subd. (a).) Although Contreras sought to file a civil complaint against United, he was first required to obtain a "right-to-sue" letter from DFEH because he was alleging claims under the FEHA. (See Gov. Code, § 12965, subd. (b); Rojo v. Kliger (1990) 52 Cal.3d 65, 72.) To that end, Contreras filed his complaint with DFEH, and asked DFEH to immediately grant him a right to sue United. DFEH issued a "right-to-sue" letter the same day of his request.
Two days after DFEH issued its "right-to-sue" letter, Contreras filed this action. His complaint, as later amended, alleged two causes of action against United: (1) disability discrimination in violation of the FEHA, and (2) retaliation and wrongful termination in violation of public policy.
Following discovery in the case, United moved for summary judgment. After briefing and a hearing, the trial court granted the motion. Considering first Contreras's FEHA claim, the court found that United had presented sufficient evidence to show that Contreras was terminated "due to United's belief that he had been dishonest and had violated the Free Pass and Sick Leave programs" described in United's employee guidelines. And because, it added, Contreras had not rebutted this showing with "evidence that [United's] proffered reason for termination was a pretext for unlawful discrimination," Contreras's FEHA claim failed as a matter of law. The court then found Contreras's second cause of action failed for similar reasons, as it was based on the same allegations of discrimination as the FEHA claim.
Contreras timely filed this appeal.
Contreras designated the record on appeal but mistakenly omitted the summary judgment order. To address this omission, United filed a motion to augment the record to add the trial court's order. We grant the request. United also suggested we deny Contreras's appeal altogether for failing to provide an adequate record. Because United's actions have ensured an adequate record, however, we decline to impose that remedy. --------
STANDARD OF REVIEW
A trial court may grant a motion for summary judgment "if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) The parties' pleadings determine the scope of relevant legal issues on summary judgment, and the legal issues in turn determine the types of facts that are material to the case. (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 172 & fn. 21.)
To meet its burden on summary judgment, a moving defendant must show either that one or more elements of the plaintiff's causes of action fail or that there is a complete defense to the plaintiff's case. (Code Civ. Proc., § 437c, subd. (p)(2).) If the defendant meets this initial burden, the burden then shifts to the plaintiff to show that a triable issue of one or more material facts exists. (Ibid.)
Courts have expanded on the application of these principles in employment discrimination cases. In those cases, when a moving defendant contends it has a complete defense to the plaintiff's claims, it may satisfy its initial burden by showing that the adverse employment action against the plaintiff was based on legitimate, nondiscriminatory factors. (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 861.) If the defendant meets this burden, the burden then shifts to the plaintiff to " 'demonstrate a triable issue by producing substantial evidence that the employer's stated reasons were untrue or pretextual, or that the employer acted with a discriminatory animus, such that a reasonable trier of fact could conclude that the employer engaged in intentional discrimination or other unlawful action.' [Citation.]" (Ibid.)
We review an order granting summary judgment de novo, and " 'liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.' [Citation.]" (Hartford Casualty Ins. Co. v. Swift Distribution, Inc. (2014) 59 Cal.4th 277, 286.)
DISCUSSION
I
The Trial Court's Application of Summary Judgment Standards
Contreras first argues the trial court failed to apply the appropriate standard of review for summary judgment. He claims the court's decision was based in part on an impermissible judgment of credibility, and further contends the court wrongly granted summary judgment even though it had doubts about material facts.
A. The Trial Court's Consideration of Credibility
We consider first Contreras's claim that the trial court issued its summary judgment order in part based on its evaluation of Contreras's credibility. To support the claim, he notes the court " 'rejected any implication' that [Contreras's] suspension and termination was due to a disability," "was 'puzzled' and 'perplexed' by [Contreras's] medical condition and medical notes," and "gave a disproportional weight" to the inconsistency between his signed statement—which claimed he returned to the United States in the "latter part" of September—and his travel records—which showed he returned to the United States on September 8. The court's doing so, Contreras claims, shows it found Contreras not credible.
We agree that a court generally cannot resolve questions of credibility in a summary judgment proceeding. (See Miller v. Department of Corrections (2005) 36 Cal.4th 446, 476.) But Contreras has failed to provide a reasoned argument to support his claim that the court below made such an error. He contends the court did so, for example, by "reject[ing] any implication" that his suspension and termination was due to a disability. But we do not see how the court's saying so demonstrates that it passed judgment on Contreras's credibility. The court rejected Contreras's legal conclusion, true; but that is not the same as judging Contreras's credibility. Contreras never attempts to explain why we should find otherwise. Nor does he cite to anything in the record to support his point. The same is true for each of his contentions—they are neither explained nor supported by any record citations. We find his arguments here forfeited as a result. (See Cal. Rules of Court, rule 8.204(a)(1)(B)-(C); Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 ["When an appellant . . . asserts [a point] but fails to support it with reasoned argument and citations to authority, we treat the point as waived"].)
B. The Trial Court's Characterization of the Facts
Contreras further claims the trial court erred in granting summary judgment when it had "unresolved doubts" about material facts. He bases the argument on the court's exclaiming that it was perplexed and puzzled by some of the evidence—statements he suggests show the court had doubts about United's basis for terminating him. According to Contreras, if the court had "unresolved doubts" about United's reason for terminating him, it should not have resolved the matter in United's favor, because "[o]ne plausible view of the evidence is that [United] terminated [Contreras] . . . because of his disability."
But Contreras misconstrues the court's ruling. The court never expressed doubt or confusion about United's reason for terminating him. It instead expressed puzzlement over certain perceived inconsistencies in the evidence. The court, for example, noted that Contreras provided a doctor's note saying he was treated in Mexico until he returned to the United States on September 28, even though Contreras actually returned to the United States on September 8. It also noted that Contreras later provided a second doctor's note that conflicted with (and purportedly predated) the first doctor's note. In stating it was perplexed by these inconsistencies, the court was not suggesting it held doubts about any material fact in the case. Rather, the court was expressing its understanding that United itself could have been perplexed by these inconsistencies, and as a result, reasonably could have harbored doubts about Contreras's veracity. Contreras's contrary claim that the court had "unresolved doubts" about materials facts simply does not follow from his cited facts.
II
Contreras's Showing of Pretext
Contreras next claims his offered evidence raised a reasonable inference that United's stated reason for firing him was actually a pretext for discrimination. Contreras contends three sets of facts support his argument: (1) United never tried to interview his doctor to learn more about his condition; (2) United's firing of Contreras conflicted with its own policies and its previous treatment of other employees; and (3) United was inconsistent about whether it believed Contreras was dishonest about his medical condition.
Before evaluating Contreras's claims, we first consider the strength of United's initial showing, for "[t]he stronger the employer's showing of a legitimate, nondiscriminatory reason, the stronger the plaintiff's evidence must be in order to create a reasonable inference of a discriminatory motive." (Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1159, citing Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 362 & fn. 25 (Guz).)
A. United's Evidence
United provided competent, admissible evidence that satisfied its initial burden to show that it terminated Contreras based on reasons unrelated to Contreras's alleged disability.
United explained that its policy directed employees to "[b]e truthful in all communications," and warned that "abuse of sick leave. . . may result in discipline." In discussing sick leave, the policy added that "in most instances a co-worker who is too sick to work is also too sick to travel using his or her company travel privileges"; employees with questions about the appropriateness of traveling while on sick leave "can clear travel with [their] supervisor or HR Partner prior to travel."
United then provided undisputed evidence sufficient to show it terminated Contreras based on its belief that Contreras had violated these policy requirements. This evidence showed Contreras had called in sick for every one of his scheduled workdays in September of 2014. After he returned to work, Contreras provided a doctor's note saying he had been under a doctor's care from September 1 to 28. The note added that "during the last week of the month he presented acute symptoms and was kept in rest and I.V. fluids and was able to go back to the U.S.A. the 28th/Sept./2014." But Contreras's flight records showed he had in fact returned to California from Mexico on September 8, and then afterward had flown to Florida and back to California—all at times when he was allegedly in Mexico. After United confronted Contreras about this discrepancy between his flight records and the doctor's note, Contreras signed a statement stating he was in Mexico until the "latter part of September"—backing up the timeline of the doctor's note. United suspended Contreras at this time and afterward initiated termination proceedings.
At the later hearing on Contreras's potential termination, the evidence showed, Contreras provided a second doctor's note that purportedly predated the first. This second note, like the first, said Contreras was under a doctor's care from September 1 to 28. But departing from the first note, it said Contreras was kept in rest and treated with intravenous fluids "during the first week" of September, not the last, and made no mention as to when Contreras returned to the United States. The author of the two notes, purportedly Doctor Agustín de Jesús Oceguera H., neither acknowledged the changes nor explained the reason for the changes.
Considering these facts, a United hearing officer issued a written decision terminating Contreras, explaining that Contreras "fell short of meeting the Working Together Guidelines in the areas of Honesty, Pass Travel, and Sick Leave."
In providing this evidence, United satisfied its initial burden to show it terminated Contreras based on a legitimate, nondiscriminatory reason. This then placed the burden on Contreras to "rebut this facially dispositive showing by pointing to evidence which nonetheless raises a rational inference that intentional discrimination occurred." (Guz, supra, 24 Cal.4th at p. 357.)
B. Contreras's Evidence
We now turn to Contreras's rebuttal evidence. We begin with Contreras's claim that United was "inconsistent" about whether it believed Contreras was being honest. Contreras argues United was inconsistent because although it suggested it did not believe Contreras's claim that he was sick, it never alleged Contreras's medical notes were fake or forged.
But those positions are not necessarily inconsistent. United could certainly harbor doubts about the legitimacy of the claims made in Contreras's medical notes without believing the notes were faked or forged. And the evidence presented in the trial court showed this was in fact the case. The United employee who issued the decision terminating Contreras, for example, found the doctor's note made claims that were plainly false—since they were contradicted by Contreras's travel records—though that same employee later testified he had "no idea" who wrote the note and so could not speak to whether it was faked or forged. We do not find those statements to be in any way inconsistent, even applying lenient summary judgment standards. Although Contreras, here and below, suggests United would have found the medical notes fake or forged if it really mistrusted Contreras's claim that he was sick, we find the claim unfounded and unsupported by Contreras's offered evidence.
Contreras next claims United's firing of him conflicted with its past treatment of other employees and its own policy requiring lesser discipline before termination. But neither claim is supported by the record.
First, Contreras contends that United's firing of him conflicted with its previous treatment of employees, but in support, he only provides indirect evidence based on his own attorney's testimony at the summary judgment hearing. His attorney there claimed that Urban Grass—the United employee who issued the decision terminating Contreras—testified in his deposition that two other United employees, who apparently made mistakes in baggage handling, were punished less harshly than Contreras. But Contreras failed to provide the underlying evidence supporting these claims in the appellate record. Although he provided parts of Grass's deposition transcript, he does not appear to have included those portions discussing United's disciplining of other United employees. We thus find the argument forfeited. (See Cal. Rules of Court, rule 8.204(a)(1)(C) [parties must "[s]upport any reference to a matter in the record by a citation . . . where the matter appears"]; Protect Our Water v. County of Merced (2003) 110 Cal.App.4th 362, 364 ["if it is not in the record, it did not happen"].)
Contreras's claim that United's policy required progressive disciplinary action before termination suffers from a similar defect. Although United's policy discusses various types of disciplinary actions short of termination, Contreras has failed to cite creditable evidence showing United was required to impose lesser discipline before resorting to termination. United's policy, in fact, appears to reject Contreras's characterization. United's Working Together Guidelines provide that termination may be appropriate when a prior "performance improvement process is unsuccessful," but it adds that termination may also occur "when the severity of an incident warrants immediate termination." United's policy, in other words, appears to contemplate that some employees will be terminated after progressive discipline (e.g., following an unsuccessful "performance improvement process") and other employees will be terminated without it. Contreras has offered no evidence to support his contrary claim that United's policy required intermediate discipline before termination.
Lastly, Contreras contends United's failure to contact his doctor further evidences pretext. It is true that United did not appear to contact Contreras's doctor to learn more about Contreras's medical condition. Its reason for not contacting the doctor, however, is not entirely clear. According to Contreras, United once told him that Mexico was a "corrupt country" and so it believed it would not be able to get through to the doctor. Whatever United's reason, we acknowledge that an employer's failure to interview witnesses with potentially exculpatory information can evidence that an employer's stated reason for terminating an employee was in fact pretextual. (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 280.)
But that United failed to contact Contreras's doctor, even if tending to evidence pretext, is not sufficient in itself to support reversal. To rebut United's evidence and raise a rational inference that intentional discrimination occurred, Contreras discussed United's failure to contact his doctor, along with two other allegations he claimed showed that United's stated reason was actually a pretext for discrimination. But in the end, Contreras offered evidence sufficient to support only his claim that United never contacted his doctor.
That failure alone, however, is insufficient to support a rational inference that intentional discrimination occurred. To begin, we question the premise that Contreras's doctor had potentially exculpatory information. The doctor might have been able to explain the inconsistencies in his own notes, but he could not have explained Contreras's own offered explanation for his absence. United presented evidence showing it fired Contreras not because his doctor's explanations varied, but rather because Contreras knowingly used the doctor's notes to represent that he was sick in Mexico at a time when he was in fact flying from California to Florida and back. In other words, United's inquiry focused on Contreras's dishonest state of mind—something the doctor could not speak to.
In any event, assuming United should have contacted the doctor, courts have found that an employer's single shortcoming generally cannot be grounds for finding intentional discrimination. Even evidence, for example, that an employer lied about its reasons for terminating an employee does not alone suffice to raise an inference of intentional discrimination. (Guz, supra, 24 Cal.4th at pp. 360-362.) "Proof that the employer's proffered reasons are unworthy of credence may 'considerably assist' a circumstantial case of discrimination, because it suggests the employer had cause to hide its true reasons. [Citation.]" (Id. at p. 361.) But without more, evidence an employer lied about its reasons is insufficient to support a rational inference that intentional discrimination was the true cause of the employer's actions. (Id. at pp. 361-362.) Similar logic defeats Contreras's claim here. Although proof that an employer failed to contact a witness with potentially exculpatory information may "considerably assist" a circumstantial showing of discrimination, without more, it is not enough to overcome an employer's showing.
III
The Trial Court's Consideration of Intent
Finally, Contreras claims the trial court wrongly opined that United had a nondiscriminatory intent. According to Contreras, a court cannot assess intent or motive in summary judgment proceedings. Contreras then contends the court below wrongly did so by finding United "established that it harbored serious doubts regarding the veracity of [Contreras's] actions in being off work and a related violation of its own policies, not because [Contreras] had a disability of any sort." We disagree.
In a summary judgment proceeding, it is true a court may not weigh the admitted evidence as though it were sitting as a trier of fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 856.) And it follows that a court may not decide for itself that a party had a certain intent in the face of conflicting evidence. But although it may "not decide on any finding of its own," a court may decide "what finding . . . a trier of fact could make for itself" (ibid.); and in doing so, the court may conclude that reasonable triers of fact would have to find that a party had a particular intent or motive.
Courts in fact often make such findings in summary judgment proceedings involving alleged employment discrimination. The court's decision in Guz, supra, 24 Cal.4th 317, is a notable example. The plaintiff there alleged, among other things, that his employer terminated him because of his age in violation of the FEHA. (Id. at p. 353.) His employer countered the termination was instead based on a legitimate, nondiscriminatory reason, and successfully moved for summary judgment on this basis. (Ibid.) On appeal, the court affirmed the trial court's judgment, finding the employer had made a "sufficient showing of innocent motive," and the plaintiff had not placed this showing in material dispute by raising a triable issue. (Id. at p. 362.) The court, in other words, affirmed the judgment against the employee based on an assessment of the employer's showing of motive—precisely what Contreras claims courts cannot do. Other courts have similarly found summary judgment appropriate after assessing the employer's motive for firing an employee. (See, e.g., Gibbs v. Consolidated Services (2003) 111 Cal.App.4th 794, 799 ["Defendant had a legitimate, nondiscriminatory reason [i.e., motive] for terminating plaintiff's employment"]; id. at p. 800 [the defendant discharged plaintiff because of his "inability to [perform satisfactorily]"]; Le Bourgeois v. Fireplace Manufacturers, Inc. (1998) 68 Cal.App.4th 1049, 1059 [the "facts establish [employer's] legitimate, nondiscriminatory reason for its actions"].)
The court's decision below continued in this line. Like the Guz court, it found that United had made a sufficient showing of innocent motive, explaining that United sufficiently "established that it harbored serious doubts regarding" Contreras's veracity. It also found Contreras failed to place this showing in material dispute by raising a triable issue. Both of these findings, as we discussed in part II above, were supported by the record.
That said, we acknowledge these types of cases often concern material disputes about an employer's intent and motive. When such material disputes arise, it is certainly true that summary judgment is inappropriate. But when, as here, an employer has made a "sufficient showing of innocent motive," and the employee has not placed that showing "in material dispute by raising a triable issue," a court may grant summary judgment in the employer's favor. (See Guz, supra, 24 Cal.4th at p. 362.)
DISPOSITION
The judgment is affirmed. United is entitled to recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)
/s/_________
BLEASE, Acting P. J. We concur: /s/_________
MURRAY, J. /s/_________
HOCH, J.