Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. RG04146510
Bruiniers, J.
Sharon Rodrigues (Rodrigues) appeals from the judgment entered in favor of her former employer, Bayer Corporation and subsidiary Bayer Healthcare LLC (collectively Bayer), on her causes of action under the Fair Employment and Housing Act (Gov. Code, § 12940 et seq. (FEHA)). Following a bench trial, the trial court concluded that Rodrigues failed to prove: (1) that Bayer unlawfully discriminated by failing to promote her or by terminating her employment; (2) that Bayer retaliated against her for reporting discrimination; and (3) that Bayer failed to take all necessary steps to ensure a workplace free of discrimination or retaliation. Rodrigues claims that the trial court applied incorrect legal standards and that the judgment is not supported by substantial evidence. We affirm the judgment.
Rodrigues also named her former supervisors, Jan Turczyn (Turczyn) and Douglas Ward (Ward), as defendants. In her opening brief, Rodrigues notes that “[her] appeal against the individual supervisors is no longer pursued, but rather [her appeal proceeds] only against the Bayer business entities.”
All further statutory references are to the Government Code unless otherwise indicated.
I. Factual and Procedural Background
Viewed in a light most favorable to Bayer, who prevailed, the evidence at trial established the facts recited herein. Rodrigues was born in Pakistan and is of Asian descent. Bayer hired Rodrigues in October 1999. She worked as manager of Technical Training (Training) in Bayer’s Nucleic Acid Diagnostics (NAD) division, which produces assays for use in the treatment of diseases such as hepatitis and human immunodeficiency virus (HIV). Rodrigues was responsible for managing the Training department for NAD’s diagnostic products, including developing schedules for training both customers and employees, making sure that training manuals were in order, running the training facility, and performing administrative tasks.
These facts are taken primarily from factual findings in the trial court’s statement of decision. Rodrigues did not assist us in this endeavor, as her statement of facts is more than 25 pages in length, ignores evidence in support of the judgment, and includes irrelevant information and argument.
In 1998, Peter Knueppel (Knueppel) was assigned to NAD at Bayer Berkeley. Before Knueppel’s arrival, NAD was largely a research and development group that had been losing money for several years. Knueppel was expected to increase profits by improving marketing techniques and acquiring products from other companies. Knueppel’s solution was to change NAD’s emphasis from research and development to product management.
Approximately two years after his arrival, Knueppel brought Ward in as Vice President of Marketing for NAD. Ward was tasked with improving sales and increasing profits. Accordingly, Ward sought to reorganize the operation and “raise the bar” of performance. To do so, Ward brought in new personnel and reorganized departments and functions. Originally, Ward oversaw the Customer Technical Support (CTS) and Training groups, while the Bayer Reference Testing Lab (BRTL) reported to the Vice President of Research and Development.
CTS focused on solving customers’ problems with Bayer’s diagnostic products. BRTL is a clinical laboratory that is responsible for testing products, responding to technical support requests from customers, and providing training on various Bayer products.
After Ward’s arrival, Bayer acquired Visible Genetics, Inc. (VGI) and its TRUGENE assay. As a result, operations at Bayer Berkeley became more complicated. Because of the VGI acquisition, new demands were made on staff, particularly the Training section. Bayer implemented a program, known as “Improving Our Effectiveness,” that set as a top priority the improvement of NAD’s training program to emphasize a comprehensive and modular approach. In addition to complex scientific challenges inherent in absorbing the TRUGENE assay technology, there were significant time deadlines as a result of the decision to transfer all aspects of VGI to California by July 1, 2003. If the TRUGENE training program was not adequately transferred by July 1, 2003, Bayer would be unable to certify its customers, as required by the Food and Drug Administration, to purchase the TRUGENE assay.
Rodrigues acknowledged that Ward was, on his arrival, friendly and supportive. In August of 2002, after the former manager of CTS left Bayer, Ward asked Rodrigues to assume interim responsibility for management of CTS in addition to her preexisting duties as head of Training, albeit without additional compensation. Rodrigues accepted this added responsibility, which she viewed as favorable treatment.
Eventually, a new position, Director of Customer Relations, was created when BRTL, Training, and CTS were combined into a single department within the NAD Marketing organization. Reorganizing the various functions under one director was discussed by Ward, Knueppel, and Matt Brown (Brown) of Human Resources, in early 2003 and was deemed necessary to “raise the bar.” On or about February 28, 2003, Turczyn, who is Caucasian and who had previously managed BRTL, was appointed Director of Customer Relations.
The record indicates various titles for this new position, such as Director of NAD Customer Support, Director of Customer Support, and Director of Customer Technical Support. For clarity we use the title used by the trial court in its statement of decision.
No formal search was conducted to fill the position of Director of Customer Relations. Ward made the decision to appoint Turczyn with input from Brown and Knueppel, but without interviewing Turczyn. Bayer presented evidence that Ward and Brown considered Rodrigues for the position, but that Turczyn was selected because her qualifications were considered superior.
Immediately after Turczyn’s appointment, Rodrigues discussed the matter with Brown, accused Bayer of discrimination, and asked to see Turczyn’s resume. Brown rebuffed the demand and asked Rodrigues why she thought Turczyn’s appointment was discriminatory. Rodrigues failed to provide any specifics for her allegation. Shortly thereafter, in April of 2003, Rodrigues filed her first claim with the Equal Employment Opportunity Commission (EEOC) and the California Department of Fair Employment and Housing (DFEH). The DFEH issued a right to sue notice on April 7, 2003.
Rodrigues asserts that Brown’s refusal to provide her with a copy of the job description and Turczyn’s resume was a violation of Bayer policy. However, the Employee Practices manual on which she relies states only: “[Bayer] provides reasonable counseling to any applicant who wants to know why he or she was not selected....” (Italics added.)
Bayer presented evidence that the quality of Rodrigues’s work thereafter dropped dramatically. Despite evidence to the contrary, Rodrigues insisted, in planning meetings in early 2003 and in her testimony at trial, that Training either had no room for improvement or that specific tasks were not its responsibility. Rodrigues also held to the view that problems in Europe with Bayer’s TMA assay were due to an issue with the reagent long after a corporate consensus had been reached that the difficulties were a training issue.
Despite prior assurances to Turczyn that everything was on schedule for the TRUGENE training transfer, Rodrigues accused Ward of “setting her up to fail” by asking her to report on her transition work at a May 20, 2003 meeting. Brown and Turczyn unsuccessfully tried to disabuse Rodrigues of that concern and explained that she was simply being requested to report on the progress of tasks that had been assigned to her. The May 20th presentation went badly, as Rodrigues’s presentation lacked detail and failed to address all items of concern with the transfer.
Turczyn became exasperated with Rodrigues. From Turczyn’s point of view there were numerous issues regarding Rodrigues’s job performance: the VGI training transfer, preparation of training materials, readiness for the July 1st transfer date, training of VGI’s personnel on Bayer products, disagreements over promotion and retention of Training personnel, objections to CTS personnel sitting in on training sessions, difficulties with the TMA manual and European training, confusion related to the misdirection of TRUGENE panels, failure to provide requested deliverables related to modular training, and failure to adequately staff TRUGENE training in Berkeley after the VGI transfer was complete. At one point, Turczyn expressed her frustration by pointing out that she was spending more time managing Rodrigues than on the rest of her responsibilities. Other Bayer employees, including Anita Giddens, Michelle Korenstein, Carol Ohara, and Rico de la Santos likewise became frustrated with Rodrigues, questioning her competence because of her failure to perform assigned tasks and her failure to meet deadlines.
In June 2003, Turczyn presented Rodrigues with a Performance Improvement Plan (PIP). The PIP required Rodrigues to: (1) document a “global needs assessment” for the TMA and TRUGENE products; (2) document an action plan to meet global training needs for the TMA and TRUGENE products; (3) submit an itemized program proposal identifying individuals outside Training who could contribute to an effective training program; and (4) demonstrate a hands-on approach to improvement of the training program. Rodrigues was notified that failure to meet the goals outlined in the PIP could result in discipline, including possible termination. Shortly thereafter, Rodrigues filed a second charge with the EEOC and DFEH, alleging retaliation. The DFEH issued a right-to-sue notice on June 16, 2003.
Rodrigues’s initial response to the June PIP, as presented at a June 30 meeting with Turczyn, was not well-received. Turczyn told Rodrigues that her response did not meet expectations. Turczyn provided Rodrigues with additional time to revise her response. Rodrigues took stress leave after further discussion on July 21st, when Turczyn expressed disappointment that, 15 days after the July 1 deadline, not a single TRUGENE training protocol had successfully been through document control.
Although Turczyn had recommended Rodrigues’s termination in July, Turczyn, at the urging of both Ward and Brown, issued another PIP when Rodrigues returned to work in September 2003. The second PIP was essentially the same as the first. Rodrigues was given five working days to comply.
Bayer characterized this PIP as a second opportunity for Rodrigues to fulfill the goals of the June PIP.
Turczyn concluded that Rodrigues’s September responsive submission, although timely, was inadequate. Rodrigues knew her initial response to the June PIP had been deemed inadequate. Nonetheless, Rodrigues submitted the same documents on September 24 that she had submitted in response to the June PIP with a few minor edits supplemented by additional materials prepared by others. On September 25, 2003, after reviewing Rodrigues’s submission, Turczyn recommended termination of Rodrigues’s employment. Approximately three months later, Rodrigues filed another charge with the DFEH, asserting that her termination was retaliatory or discriminatory.
On March 18, 2004, Rodrigues filed a complaint for damages and injunctive relief. Rodrigues’s first amended complaint alleges three causes of action: (1) race, color, ancestry, and national origin discrimination, in violation of section 12940, subdivision (a); (2) retaliation, in violation of section 12940, subdivision (h); and (3) failure to take reasonable steps to prevent discrimination or harassment, in violation of section 12940, subdivision (k).
The parties waived jury trial. After a 38-day bench trial, the court entered judgment in Bayer’s favor and issued its statement of decision. With respect to Rodrigues’s first cause of action, the trial court concluded that “[Rodrigues] failed to prove, by a preponderance of the evidence, that defendants... discriminated against her by failing to promote her or by terminating her employment.” The trial court found that “Turczyn was selected to be Director of Customer Relations because she was more qualified than Rodrigues, not because Rodrigues is Pakistani.” The trial court further found that “[w]hen Rodrigues failed to comply with the September PIP, she was justifiably terminated.”
The parties stipulated that Judge Ballachey, “a retired Judge of the Superior Court in and for the County of Alameda... shall be appointed as Judge Pro Tempore... to hear and determine all outstanding issues in this proceeding until final determination in the Superior Court....” The stipulation further provided: “Neither party waives any appellate or other rights that would be available in a Superior Court trial....” A temporary judge has the same power to render an appealable judgment as a regular judge. (In re Marriage of Assemi (1994) 7 Cal.4th 896, 908.)
With respect to Rodrigues’s retaliation claim, the trial court concluded that “[Rodrigues] failed to prove, by a preponderance of the evidence, that defendants, or any of them, retaliated against her for engaging in a protected activity....” The trial court found that “[c]lose scrutiny of the record fails to reveal any retaliatory activity on the part of anyone at Bayer. Rodrigues was terminated for a sound business reason: her job performance had deteriorated to an unacceptable level in spite of two (2) separate opportunities to improve.” With respect to Rodrigues’s third cause of action, for failure to prevent harassment, discrimination, or retaliation, the trial court concluded: “Rodrigues did not prove discrimination, harassment, or retaliation. There was, therefore, no necessity for Bayer to take ‘steps necessary to prevent workplace harassment.’ [Citations.]” Accordingly, the court ordered that Rodrigues “shall take nothing by way of her First Amended Complaint and shall recover nothing from Defendants....” Rodrigues filed a timely notice of appeal.
II. Discussion
Rodrigues challenges the trial court’s determination that neither her termination, nor Bayer’s failure to promote her to Director of Customer Relations, was motivated by discriminatory animus. In addition, Rodrigues attacks the trial court’s determination that she failed to prove her causes of action for unlawful retaliation and failure to prevent discrimination or retaliation. We address separately each of Rodrigues’s arguments.
We reject Rodrigues’s argument that the trial court erred by failing to consider a disparate impact theory of discrimination. “To prevail on a theory of disparate impact, the employee must show that regardless of motive, a facially neutral employer practice or policy, bearing no manifest relationship to job requirements, in fact had a disproportionate adverse effect on certain employees because of their membership in a protected group. [Citations.]” (Knight v. Hayward Unified School Dist. (2005) 132 Cal.App.4th 121, 129, italics omitted.) Rodrigues cites nothing in the record to show she pleaded a disparate impact claim. Our review of the pleadings reveals that she did not. Even on appeal, Rodrigues does not identify a specific employment practice that had an adverse effect on a protected class. Rather, she argues only generally, and without citation to the record, that “Bayer’s decision to disregard its own posting and interviewing policies adversely impacted minorities such that [the] Bayer Marketing Department had a management team of 20 whites....” Accordingly, we do not further consider the argument. (See Benach v. County of Los Angeles (2007)149 Cal.App.4th 836, 852 [“[w]hen an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived”]; Bray v. International Molders & Allied Workers Union (1984) 155 Cal.App.3d 608, 618.)Furthermore, Rodrigues waived the following arguments, raised for the first time in her reply brief: (1) that the trial court should have made additional factual findings and (2) that the trial court improperly required direct evidence of retaliatory intent. (Julian v. Hartford Underwriters Ins. Co. (2005) 35 Cal.4th 747, 761, fn. 4 [points first raised in reply brief need not be considered]; Tilton v. Reclamation Dist. No. 800 (2006) 142 Cal.App.4th 848, 864, fn. 12.)
A. Standard of Review
When the trial court’s judgment and statement of decision contain both findings of fact and conclusions of law, the reviewing court “ ‘review[s] the trial court’s findings of fact to determine whether they are supported by substantial evidence. [Citation.] To the extent the trial court drew conclusions of law based upon its findings of fact, we review those conclusions of law de novo. [Citation.]’ [Citation.]” (ASP Properties Group, L.P. v. Fard, Inc. (2005) 133 Cal.App.4th 1257, 1266, last citation omission added.)
Under the substantial evidence standard of review, the reviewing court “must consider all of the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference, and resolving conflicts in support of the judgment. [Citations.] [¶] It is not our task to weigh conflicts and disputes in the evidence; that is the province of the trier of fact. Our authority begins and ends with a determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, in support of the judgment. Even in cases where the evidence is undisputed or uncontradicted, if two or more different inferences can reasonably be drawn from the evidence this court is without power to substitute its own inferences or deductions for those of the trier of fact, which must resolve such conflicting inferences in the absence of a rule of law specifying the inference to be drawn.... [Citations.]” (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630–631.)
Substantial evidence is evidence of “ ‘ “ponderable legal significance,” ’ ‘ “reasonable in nature, credible, and of solid value....” ’ [Citations.]” (Howard v. Owens Corning, supra, 72 Cal.App.4th at p. 631.) “Inferences may constitute substantial evidence, but they must be the product of logic and reason. Speculation or conjecture alone is not substantial evidence. [Citations.]” (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651.) “The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record. [Citation.]” (Id. at p. 652.)
Rodrigues’s reliance on Kemp Bros. Construction, Inc. v. Titan Electric Corp. (2007) 146 Cal.App.4th 1474, 1477 and Estate of Larson (1980) 106 Cal.App.3d 560, 567 is misplaced. In those cases the record indicated that the trial court failed to perform its fact-finding function. Here the record clearly reflects that the trial court weighed the evidence, albeit not to the conclusion that Rodrigues would have wished.
B. The First Cause of Action
Rodrigues, in her first cause of action, alleges that she was terminated and denied promotion because of her race or national origin. (See § 12940, subd. (a).) Preliminarily, we note that Rodrigues attempts to frame the issue on appeal in terms of the shifting burdens applicable to pretrial motion proceedings under McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. Under McDonnell Douglas, “ ‘ “(1) [t]he complainant must establish a prima facie case of discrimination; (2) the employer must offer a legitimate reason for his actions; (3) the complainant must prove that this reason was a pretext to mask an illegal motive.” ’ ” (Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 149.) Although the elements of the prima facie case may change somewhat with each factual circumstance, to establish a prima facie case a plaintiff must show four things: (1) she was a member of a protected class; (2) she was qualified for the position sought or was performing competently in the position held; (3) she suffered an adverse employment action; and, most critically, (4) some other circumstance suggests discriminatory motive. (Guz, supra, 24 Cal.4th at p. 355.)
Section 12940, subdivision (a), provides in pertinent part: “It shall be an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: [¶] (a) For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation of any person, to refuse to hire or employ the person or... to discharge the person from employment..., or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.”
Because of the similarity between federal and state antidiscrimination laws, California courts look to pertinent federal precedent when applying the FEHA. Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 (Guz).)
Here, however, judgment was entered after trial. Thus, Rodrigues’s assertions that she established a prima facie case of discrimination miss the mark. At trial, “[b]ecause the only issue properly before the trier of fact [i]s whether the [defendant]’s adverse employment decision was motivated by discrimination..., the shifting burdens of proof regarding appellant’s prima facie case and the issue of legitimate nondiscriminatory grounds [a]re actually irrelevant.” (Muzquiz v. City of Emeryville (2000) 79 Cal.App.4th 1106, 1119 (Muzquiz).) “[T]he ultimate issue is simply whether the employer acted with amotive to discriminate illegally.” (Guz, supra, 24 Cal.4th at p. 358.)
For example, Rodrigues relies on Dews v. A.B. Dick Co. (6th Cir. 2000) 231 F.3d 1016 (Dews), wherein the court held that, when the employer does not notify its employees of the available promotion or does not provide a formal mechanism for expressing interest, a plaintiff need not demonstrate having applied for and having been considered for promotion to establish a prima facie case of discriminatory failure to promote. (Id. at pp. 1020–1022.) Because it is undisputed that Rodrigues presented a prima facie case, we need not address in detail: (1) whether Rodrigues applied for promotion; (2) whether Rodrigues was considered for promotion; or (3) whether Rodrigues was qualified to be considered for promotion. In any event, to the extent it is relevant to the ultimate question of discrimination, substantial evidence supports the trial court’s finding that “Ward, in fact, considered Rodrigues, among other candidates, for the new position of Director of Customer Relations before appointing Jan Turczyn.” That Ward conceded not having interviewed Rodrigues or reviewed her resume does not make the trial court’s finding unreasonable.
“[O]nce the employer produces evidence of a nondiscriminatory reason for its employment decision which, if believed by the fact finder, will support a verdict in the employer’s favor, ‘the McDonnell... presumption “drops from the case” and the fact finder must decide upon all of the evidence before it whether defendant intentionally discriminated against plaintiff. [Citation.] In short, the trier of fact decides whether it believes the employer’s explanation of its actions or the employee’s.’ [Citation.]” (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 201, last citation omission added.) “Even if the employee succeeds in establishing a prima facie case, however, the burden of persuasion never shifts to the employer. At all times, the burden of persuasion rests firmly on the employee to establish that the employer intentionally discriminated against the employee.” (Muzquiz, supra, 79 Cal.App.4th at p. 1117.)
Rodrigues also cites cases in which appellate review was sought, and judgment ultimately reversed, after summary judgment was granted in favor of an employer. (See Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1036 (Yanowitz); Dews, supra, 231 F.3d at p. 1017; Colgan v. Fisher Scientific Co. (3d Cir. 1991) 935 F.2d 1407, 1408.) Rodrigues argues, in reliance on this authority, that her presentation of some circumstantial evidence tending to suggest a discriminatory or retaliatory intent entitles her to a reversal of the judgment against her.
Rodrigues seems to confuse presentation of a prima facie case, sufficient to avoid summary judgment, with presentation of a persuasive case to the trier of fact. The standard of review applicable after summary judgment is entirely different from that applicable here. (See, e.g., Cal. Code Civ. Proc., § 437c, subd. (c) [grant of summary judgment motion required where no triable issue exists as to any material fact and moving party is entitled to judgment as a matter of law]; Yanowitz, supra, 36 Cal.4th at p. 1037 [summary judgment decision is reviewed de novo and evidence is liberally construed in support of the party opposing summary judgment].) Existence of a triable issue of fact does not compel judgment in Rodrigues’s favor after trial.
The ultimate question presented by Rodrigues’s appeal is whether substantial evidence supports the trial court’s determination that Bayer did not act with discriminatory animus. Before addressing the ultimate issue, we first address Rodrigues’s complaints regarding the legal standards applied by the trial court.
1. The Trial Court Did Not Err In Its Examination of Bayer’s Justifications
Rodrigues first argues that the trial court erred “as a matter of law [by] suggesting that management’s decisions should not be closely examined by courts and accepted almost blindly.” Rodrigues apparently takes issue with the following statements in the court’s decision: “It is axiomatic that employers are vested with the right to exercise business judgment in making personnel decisions. They are not to be second-guessed by courts in the absence of persuasive evidence that the personnel decision in question was driven by discrimination based on race or ethnicity.... [¶]... [¶] While informal in process, the decision to appoint Turczyn was nonetheless a business judgment fully within the discretion of management. California courts will not ‘sit as a super-personnel department that reexamines an entity’s business decisions.’ (Marks v. Loral Corp. (1997) 57 Cal.App.4th 30, 64: ‘Business people, rather than judges, are presumed to know what is best for their [own] business[es],’ superseded on other grounds, affirmed in relevant part by Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 358.)”
Rodrigues cites no authority that suggests the trial court’s statement of the applicable law is incorrect. Our Supreme Court has in fact reiterated that the “ ‘courts are not free to second-guess an employer’s business judgment....’ [Citation.]” (Guz, supra, 24 Cal.4th at p. 375; see also Sada v. Robert F. Kennedy Medical Center, supra, 56 Cal.App.4th at p. 155 [“ ‘question is not whether the [employer] exercised prudent business judgment [but whether it made an unlawful hiring decision]’ ” (bracketed material in original)].)
The trial court did not fail, as Rodrigues alleges, to subject Bayer’s promotion and termination decisions to judicial scrutiny. The court merely applied the rule that a disparate treatment claim fails unless it is proved that “the employer acted with a motive to discriminate illegally.” (Guz, supra, 24 Cal.4th at p. 358, italics omitted.) Contrary to Rodrigues’s suggestion, judgment in her favor was not compelled even if she had succeeded in proving that Bayer’s justifications were false. “[A]n inference of intentional discrimination cannot be drawn solely from evidence, if any, that the company lied about its reasons. The pertinent statutes do not prohibit lying, they prohibit discrimination. [Citation.]” (Id. at pp. 360–361; see also Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S. 133, 148 [“a plaintiff’s prima facie case, combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated” (italics added)].) The trial court merely concluded that Rodrigues had not presented persuasive evidence of discrimination and, instead, it found Bayer’s justifications credible.
2. The Trial Court Did Not Err by Noting that Rodrigues Had Not Shown Evidence that Her Supervisors Were Racist
Next, Rodrigues argues that the trial court committed reversible error by requiring Rodrigues to prove her supervisors at Bayer to be racists. In its statement of decision, the trial court wrote: “Rodrigues first claims that Ward, with whom she initially enjoyed an ‘excellent’ relationship, is a racist. As proof of that claim she accuses him of engaging in a ‘white only’ hiring campaign when he first arrived at Bayer Berkeley. [¶]... [¶] The evidence established that all [three hires made by Ward] were for sound business reasons and none was race based. Rodrigues’[s] claim that Ward engaged in a ‘white only’ hiring pattern and was, therefore, a racist, was not proven.” The trial court also stated: “Exasperation with poor job performance is not racism. [¶] There was absolutely no evidence that anyone in management at Bayer[—]specifically Ward or Turczyn[—]ever overtly expressed racist views.... Moreover, there was no evidence that Ward and Turczyn somehow conspired or worked together or with others to bring about Rodrigues’[s] dismissal due to ethnic bias.”
Again, Rodrigues cites no authority supporting her argument that the trial court applied an improper legal standard. The ultimate question below was whether Bayer’s actions “were taken for legitimate managerial reasons or were, instead, significantly motivated by racial animus.” (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 374 (Horsford).) Although a plaintiff alleging discrimination is not required to submit direct evidence of discriminatory intent (U.S. Postal Service Bd. of Govs. v. Aikens (1983) 460 U.S. 711, 714, fn. 3), a plaintiff is nonetheless required to show, by circumstantial evidence or otherwise, “that intentional discrimination was a substantial motivating factor in the employer’s actions toward the plaintiff. [Citations.]” (Horsford, supra, 132 Cal.App.4th at p. 377.) The dictionary defines “racism” as “racial prejudice or discrimination.” (Merriam-Webster’s Collegiate Dict. (11th ed. 2004) p. 1024.) Thus, Rodrigues complains of a meaningless distinction. The trial court’s judgment was not the result of the application of an erroneous legal standard. Rather, the trial court was simply not persuaded that Bayer’s actions resulted from a discriminatory animus.
3. Substantial Evidence Supports the Trial Court’s Subsidiary Findings
Rodrigues maintains that substantial evidence does not support the trial court’s finding that Ward hired only three Caucasian managers. Bayer’s evidence, however, amply supports the finding. The evidence cited by Rodrigues does not controvert the trial court’s finding, much less suggest the finding is unsupported. Furthermore, Rodrigues’s evidence of the absence of non-Caucasians in management positions at NAD is of limited probative value because Rodrigues presents no evidence of the race and qualifications of other applicants for these positions. In fact, Rodrigues conceded that she was not aware of a single non-Caucasian who applied for a position with Ward but did not receive the job.
Rodrigues also challenges, as unsupported by substantial evidence, the trial court’s finding that no formal search was required for the new Director position because it was exempt from posting requirements. Rodrigues relies on evidence that, at least when she was hired, Bayer posted an open position and conducted a more formal hiring process. However, there is ample evidence that it was Bayer’s policy not to post positions at the E3 level or above, such as the Director of Customer Relations position.
In a related argument, Rodrigues contends that substantial evidence does not support the trial court’s finding that “[t]he bureaucratic details [for the new Director of Customer Relations position—]salary, job classification, etc. [—]were finalized before Turczyn’s appointment.” However, Bayer presented evidence that the job description and classification had been determined by approximately the 7th or 8th of February—before Turczyn was selected. The trial court was free to reject any arguably conflicting evidence on this point.
4. Substantial Evidence Supports the Trial Court’s Findings that Rodrigues was Neither Terminated Nor Denied Promotion Because of Discriminatory Animus
Rodrigues includes a panoply of arguments in her opening brief to the effect that the trial court failed to adequately weigh her evidence. First, we note that Rodrigues cites no authority supporting her implicit argument that the trial court had an obligation to discuss all of the evidence presented at trial in its statement of decision. We know of no such authority. (See Code Civ. Proc., § 632 [“upon the trial of a question of fact by the [superior] court, written findings of fact and conclusions of law shall not be required[, but it] shall issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial upon the request of any party appearing at the trial”]; Muzquiz, supra, 79 Cal.App.4th at pp. 1124–1126; Hellman v. La Cumbre Golf & Country Club (1992) 6 Cal.App.4th 1224, 1230 [“a trial court is required only to state ultimate rather than evidentiary facts”].) The issue presented is simply whether substantial evidence supports the trial court’s factual determination that Bayer did not intentionally discriminate against Rodrigues. The trial court’s determinations are supported by substantial evidence.
Substantial evidence supports the trial court’s finding that “Turczyn was selected to be Director of Customer Relations because she was more qualified than Rodrigues, not because Rodrigues is Pakistani.” Bayer presented evidence that it promoted Turczyn, rather than Rodrigues, for a legitimate, nondiscriminatory reason—Turczyn was better qualified for the Director of Customer Relations position.
Ward testified that he found Rodrigues’s qualifications wanting in comparison to Turczyn’s. Rodrigues herself acknowledged that she lacked several of the job qualifications set forth in the job description, including 10 years of clinical laboratory experience, experience directing a high complexity clinical laboratory, a Clinical Laboratory Scientist (CLS) or equivalent license, and experience with numerous regulatory agencies. Conversely, Turczyn had these credentials and had successfully managed BRTL and other laboratories.
Ward testified that Turczyn’s CLS license gave her, and NAD, credibility with clients that Rodrigues could not offer. Turczyn also had extensive experience with DNA sequencing technology—the same highly complex technology that NAD was acquiring with VGI’s TRUGENE assay. Ward also testified that Turczyn was helpful, collaborative, and effective in his work interactions with her. Ward believed that Turczyn would create synergies between BRTL, Training, and CTS and would always “get the job done right.” Brown and others shared this evaluation. In addition, Turczyn had supervised twice as many subordinates as Rodrigues had in her role as head of Training. Rodrigues may have assumed responsibility for an additional four or five employees in her interim role as manager of CTS, but Bayer presented evidence that Turczyn was selected because Ward had concerns with Rodrigues’s performance in that role.
There was absolutely no evidence that Ward, Turczyn or anyone else in management at Bayer ever overtly expressed racist views. Ward denied considering race, national origin, color, or ethnicity in making the promotion decision. The trial court noted that Rodrigues’s claim was undermined by the fact that Ward, the same actor who allegedly discriminated against Rodrigues, had previously asked her to serve as interim manager of CTS. (See Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 809; Coghlan v. American Seafoods Co. LLC (9th Cir. 2005) 413 F.3d 1090, 1096–1098, fn. 10 [“when the allegedly discriminatory actor is someone who has previously selected the plaintiff for favorable treatment, that is very strong evidence that the actor holds no discriminatory animus”]; Hartsel v. Keys (6th Cir. 1996) 87 F.3d 795, 803–804, & fn. 9.) Furthermore, Bayer presented evidence that Ward had hired and promoted other minority employees.
The evidence in support of the trial court’s judgment is not made insubstantial, or a finding of discrimination compelled, by the fact that minorities were not represented in management within the marketing organization or the fact that Rodrigues had been managing both CTS and Training at the time Turczyn was appointed. Nor is a finding of discrimination compelled by Rodrigues’s evidence that the search was informal, that certain qualifications in job descriptions may have been considered only desirable on occasion in the past, that some subjective criteria were considered in selecting Turczyn, that Rodrigues had some background in DNA sequencing, or that another potential candidate for the Director of Customer Relations position, Anita Giddens, did not possess a CLS license.
Rodrigues asserts that Giddens, who is Caucasian, was considered for the job despite not having a CLS license or a college degree. This evidence does not contradict Bayer’s assertion that Turczyn was more qualified than Rodrigues. In any event, Bayer presented evidence showing that Giddens was not seriously considered for the Director of Customer Relations position because she was unwilling to relocate to California. Accordingly, Giddens was not selected for the position and her qualifications were never seriously considered.
With respect to Rodrigues’s discriminatory termination claim, substantial evidence supports the trial court’s determination that Bayer terminated Rodrigues for a legitimate, nondiscriminatory reason—her poor performance. Bayer presented evidence that Turczyn recommended termination because performance problems were repeatedly brought to Rodrigues’s attention, but Rodrigues did little to address them. Having reviewed Rodrigues’s September response to the PIP, the trial court observed that “[e]ven to the untrained eye... [Rodrigues’s September PIP response] was obviously inadequate.”
Bayer also presented evidence that Turczyn, who was largely responsible for the decision to terminate Rodrigues, had a history of hiring and promoting minorities. The trial court chose to credit this evidence, which suggests Turczyn lacked discriminatory animus, over Rodrigues’s evidence that other Bayer employees had previously complained that Turczyn discriminated on the basis of race. Contrary to Rodrigues’s assertion, the trial court did not ignore the prior complaints against Turczyn. Rather, the trial court concluded that “[t]he entirety of this circumstantial evidence was unpersuasive.” Accordingly, Rodrigues misplaces her reliance on authority suggesting that exclusion of similar evidence is prejudicial error. (See, e.g., Heyne v. Caruso (9th Cir. 1995) 69 F.3d 1475.) Here, there was no such exclusion.
Rodrigues also asserts that Bayer failed to follow its own discipline procedures by arguing that, according to Bayer policy, she should have been transferred within Bayer rather than terminated. Although testimony was offered at trial that on rare occasions an employee had been transferred to alleviate a personality conflict, the situation here was not merely a personality conflict. Nor does Bayer’s Employee Practices manual suggest that demotion or transfer into another position is required before termination. Substantial evidence supports the trial court’s finding that deterioration in Rodrigues’s job performance made her “not a candidate for transfer, certainly not as a compulsory personnel action required of Bayer.”
In reality, Rodrigues seeks to have us reweigh the evidence de novo, something that we may not do. “[T]he test is not the presence or absence of a substantial conflict in the evidence. Rather, it is simply whether there is substantial evidence in favor of the respondent. If this ‘substantial’ evidence is present, no matter how slight it may appear in comparison with the contradictory evidence, the judgment must be upheld.” (Howard v. Owens Corning, supra, 72 Cal.App.4th at p. 631.)
Rodrigues asks us to order entry of judgment in her favor “on the undisputed record.”
We do not second-guess the trial court’s credibility determinations. (Leff v. Gunter (1983) 33 Cal.3d 508, 518; Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925 [“[a]ll issues of credibility are... within the province of the trier of fact”].) We conclude that the evidence is sufficient to support the trial court’s determination on Rodrigues’s first cause of action.
C. The Second Cause of Action
“[I]n order to establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a ‘protected 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. [Citations.] Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. [Citation.] If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation ‘ “ ‘drops out of the picture,’ ” ’ and the burden shifts back to the employee to prove intentional retaliation. [Citation.]” (Yanowitz, supra, 36 Cal.4th at p. 1042; see also § 12940, subd. (h).) The only issue here is whether Rodrigues demonstrated a causal link between her protected activity (her complaints to the EEOC and DFEH) and Bayer’s actions.
Section 12940, subdivision (h), provides: “It shall be an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: [¶]... [¶] (h) For any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.”
Rodrigues first argues, in reliance on Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, that the trial court “erred as a matter of law because [it] misunderstood the law to require Turczyn to have actual knowledge of Rodrigues’[s] E.E.O.C. charge in order for [Rodrigues] to prevail on the retaliation cause of action.” In Reeves v. Safeway Stores, Inc., the employer argued that it was entitled to summary judgment on the plaintiff’s retaliation claim because its district manager, who made the ultimate termination decision at issue, was not aware of the plaintiff’s complaints of sexual harassment. (Id. at pp. 107, 110.) The court acknowledged that “an employer cannot be liable for retaliation (or discrimination) if it was unaware of the plaintiff’s protected activities (or attributes.) [Citations.]” (Ibid.) However, the court concluded that when an adverse employment action involves several employees “the plaintiff can establish the element of causation by showing that any of the persons involved in bringing about the adverse action held the requisite animus, provided that such person’s animus operated as a ‘but-for’ cause, i.e., a force without which the adverse action would not have happened.” (Id. at p. 108.) The court there concluded that summary judgment was inappropriate because “a defendant does not conclusively negate the element of causation by showing only that some responsible actors, but not all, were ignorant of the occasion for retaliation.” (Id. at pp. 108, 110.)
We need not address Rodrigues’s argument in detail because the trial court did not ground its adverse resolution of Rodrigues’s retaliation claim solely on its finding that Turczyn was unaware, before Rodrigues’s termination, of her EEOC/DFEH charges. Rather, the trial court stated: “The evidence established that the initial EEOC claim was received by Bayer and not communicated to Turczyn.... [¶] The evidence further demonstrates that Turczyn’s treatment of Rodrigues, after the filing of the first EEOC charge, was justified in light of Rodrigues’s poor job performance. It was not based on any ethnic bias or desire to retaliate against Rodrigues for filing an EEOC charge. [¶] Close scrutiny of the record fails to reveal any retaliatory activity on the part of anyone at Bayer. Rodrigues was terminated for a sound business reason: her job performance had deteriorated to an unacceptable level in spite of two (2) separate opportunities to improve.” (Italics added.)
Substantial evidence supports this finding.
Accordingly, even though Brown, Ward, and Klemick were aware of Rodrigues’s EEOC/DFEH charges before her termination, the critical issue is whether substantial evidence supports the trial court’s finding that Rodrigues’s treatment was not motivated by her complaints.
Brown and Ward testified that they had some involvement in the decision to terminate Rodrigues.
The record amply supports the trial court’s determination that all adverse employment actions were taken for a legitimate, nonretaliatory reason. Bayer’s witnesses not only denied taking action against Rodrigues in retaliation for her complaints, but also substantial evidence showed that all actions were taken because her job performance had deteriorated during the relevant time period. Turczyn and Ward were understandably frustrated when Rodrigues failed to ensure that Training was adequately prepared for the TRUGENE transfer on July 1, 2003, and when Rodrigues failed to adequately assess potential improvements for the training program, despite the fact that these specific goals had been spelled out in her objectives, the “Improving Our Effectiveness” meetings, and the PIP.
Rodrigues attempted to convince the court that Bayer’s justification was merely cover for retaliation. She presented evidence that Bayer’s performance evaluations included subjective criteria, that the goals to be met under her PIP were vague, that Rodrigues believed her job performance was excellent, that a short period of time passed between her complaints and adverse employment actions, that Bayer did little to investigate her discrimination complaints or the performance problems alleged by Turczyn, that Rodrigues was not completely without “value” to Bayer at the time of her termination, that she had been recommended to participate in Bayer’s diagnostic leadership program, and that she had received positive performance evaluations before filing her complaints.
Rodrigues’s reliance on Cotran v. Rollins Hudig Hall Internat., Inc. (1998) 17 Cal.4th 93 (Cotran) is misplaced. Cotran was not a retaliation case, but a wrongful discharge action based on alleged lack of “good cause” to terminate an employee charged with misconduct. The issue for the trier of fact in those circumstances, was framed by the Supreme Court: “Was the factual basis on which the employer concluded a dischargeable act had been committed reached honestly, after an appropriate investigation and for reasons that are not arbitrary or pretextual?” (Id. at p. 107) Cotran does not stand for the proposition that Rodrigues urges, that there was a requirement for Bayer here to conduct “an appropriate investigation” of Turczyn’s reasons for discharging Rodrigues.
That there was some evidence in conflict with the trial court’s finding, or evidence that could have supported a contrary finding, does not alter the result on appeal. “[I]t is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion. [Citations.]” (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 874, italics omitted.) Substantial evidence supports the trial court’s finding that “the record fails to reveal any retaliatory activity on the part of anyone at Bayer.” (Italics added.)
D. The Third Cause of Action
Finally, Rodrigues contends that the trial court erred by requiring her to prove harassment to recover, under section 12940, subdivision (k), for failure to take all reasonable steps to prevent discrimination or retaliation. Specifically, Rodrigues argues that “[her] claim against [Bayer] on the third cause of action was for [Bayer’s] failure to take reasonable steps to prevent the discrimination and retaliation from occurring. The trial court’s Decision reveals that the trial court was under the mistaken impression that Rodrigues was attempting to recover for a hostile work environment claim based on harassment endured by others.”
Section 12940, subdivision (k), provides: “It shall be an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: [¶]... [¶] (k) For an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.”
Rodrigues misreads the statement of decision, which states: “Rodrigues did not prove discrimination, harassment, or retaliation. There was, therefore, no necessity for Bayer to take ‘steps necessary to prevent workplace harassment.’ [Citations.]” A defendant cannot be held liable for failure to prevent discrimination or retaliation without unlawful discrimination or retaliation in fact having occurred. (See Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 289.) As noted above, substantial evidence supports the trial court’s findings that Bayer did not unlawfully discriminate or retaliate against Rodrigues. Therefore, the trial court properly concluded that Bayer had no liability for failure to prevent discrimination or retaliation. No additional findings were required.
III. Disposition
The judgment is affirmed. Respondents are to recover costs on appeal.
We concur: Jones P. J., Needham, J.