Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. HG08373500
Kline, P.J.
Arlene Bell-Sparrow (plaintiff) appeals the trial court’s grant of summary judgment in favor of Farmers Insurance Company (defendant or Farmers) in this employment discrimination/wrongful termination action. On appeal, plaintiff contends the trial court erred in granting summary adjudication as to each of the causes of action in her complaint, including race and age discrimination, wrongful termination, constructive discharge, breach of implied contract and the implied covenant of good faith and fair dealing, and retaliation. She also contends the court erred in granting summary judgment because there were outstanding discovery issues. We shall affirm the judgment.
Defendant’s true name apparently is “Farmers Insurance Exchange.” However, for purposes of this lawsuit, its name is set forth as “Farmers Insurance Company.”
PROCEDURAL BACKGROUND
Plaintiff filed a complaint with the Department of Fair Employment and Housing, pursuant to the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12940), and was issued a right-to-sue letter on February 19, 2008.
On February 27, 2008, she filed a complaint in pro per alleging racial discrimination, age discrimination, retaliation, wrongful termination, constructive discharge, breach of implied contract, and breach of the implied covenant of good faith and fair dealing.
On July 18, 2008, defendant filed a motion for summary judgment, or in the alternative, summary adjudication. On February 24, 2009, the trial court granted defendant’s motion for summary judgment and, on March 18, 2009, the court entered judgment.
On March 4, 2009, plaintiff filed a notice of appeal.
FACTUAL BACKGROUND
In June 2007, defendant hired plaintiff as a senior workers’ compensation claims representative. She was hired as an at-will employee with a 90-day probationary period. During the probationary period, defendant provides a new employee with progress reports at 30, 60, and 90-day intervals. At the end of the 90-day period, defendant either grants the new employee regular employment, terminates the employment relationship, or extends the introductory period.
After she was hired, plaintiff initially reported to fields claims supervisor, Eric Summerfeldt. Former field claims manager Gloria Nickles also reviewed her performance.
While plaintiff’s performance was “mostly satisfactory,” Summerfeldt noticed deficiencies in plaintiff’s written work product. Plaintiff’s 30-day progress report stated that she needed improvement in written expression, as well as oral expression and quantity of work. Summerfeldt did not observe adequate improvement in plaintiff’s performance after her 30-day review, and her 60-day progress report noted continuing deficiencies in her written work product, oral expression, quality of work, and decision-making. Following the 60-day review, Summerfeldt continued to observe “serious problems” with plaintiff’s written work product. He also observed that her performance had deteriorated in other areas as well.
In September 2007, following a “heated discussion” with Summerfeldt and a coworker, Ian MacGregor, plaintiff told Summerfeldt that she was upset by MacGregor’s “raised voice” and “aggressive” manner toward her during the meeting. She did not complain about any perceived discrimination or harassment. Summerfeldt subsequently told MacGregor that his behavior toward plaintiff at the meeting was “too aggressive, and must be toned down.”
Plaintiff’s 90-day progress report stated that she needed improvement in nearly all areas, including quality of work, decision-making, time management, gathering and analyzing information, technical job knowledge, oral expression, quantity of work, written expression, and adaptability to change. On September 14, 2007, at the expiration of her 90-day introductory period, defendant extended plaintiff’s probation for 45 more days. Defendant gave plaintiff a memorandum outlining specific deficiencies in both her written work product and other areas that needed immediate improvement. In an October 24, 2007 memorandum, Gloria Nickles set forth specific problems with plaintiff’s attention to detail and work product and, further, recommended that plaintiff be terminated. On November 1, 2007, at the end of this extended probationary period, because defendant still had not seen sufficient improvement in plaintiff’s performance, it terminated her employment.
DISCUSSION
I. Summary Judgment Rules and Standard of Review
A motion for summary judgment “shall be granted 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).) A defendant moving for summary judgment has the initial burden of showing either that one or more elements of the cause of action cannot be established or that there is a complete defense. (§ 437c, subd. (p)(2).) If that initial burden is met, the burden shifts to the plaintiff to show the existence of a triable issue of fact with respect to that cause of action or defense. (§ 437c, subd. (p)(2); see Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-853.)
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
As a preliminary matter, defendant notes that the trial court stated that plaintiff had not authenticated any of the evidence submitted with her opposition papers. Therefore, according to defendant, summary judgment would be properly affirmed on this ground alone. However, as did the trial court, we shall address this matter on its merits. This is particularly appropriate in light of plaintiff’s pro per status, both in the trial court and on appeal.
We review a summary judgment ruling de novo to determine whether there is a triable issue as to any material fact and whether the moving party is entitled to judgment as a matter of law. (Marie Y. v. General Star Indemnity Co. (2003) 110 Cal.App.4th 928, 949.) We also independently review the admissibility of evidence submitted in support of or opposition to summary judgment. (Gatton v. A.P. Green Services, Inc. (1998) 64 Cal.App.4th 688, 692.) “We liberally construe the evidence in support of the party opposing summary judgment [citation], and assess whether the evidence would, if credited, permit the trier of fact to find in favor of the party opposing summary judgment under applicable legal standards. [Citation.]” (Loggins v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102, 1109 (Loggins).)
II. Race Discrimination, Age Discrimination, and Retaliation Under the FEHA
Plaintiff contends the trial court erred when it granted summary adjudication in favor of defendant on her FEHA causes of action for race discrimination, age discrimination, and retaliation.
In deciding claims of discrimination and retaliation, California courts utilize the three-part test developed in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. Under the McDonnell Douglas test: “(1) The complainant must establish a prima facie case of discrimination [or retaliation]; (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.” (Clark v. Claremont University Center (1992) 6 Cal.App.4th 639, 662; accord, St. Mary’s Honor Center v. Hicks (1993) 509 U.S. 502, 506-507; Loggins, supra, 151 Cal.App.4th at p. 1109.) “By applying McDonnell Douglas’s shifting burdens of production in the context of a motion for summary judgment, ‘the judge [will] determine whether the litigants have created an issue of fact to be decided by the jury.’ (Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248, 254, fn. 8.)” (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 806.)
A. Race and Age Discrimination
The trial court concluded that “any inference that plaintiff’s termination or [coworker Ian] MacGregor’s or Farmers’ treatment of plaintiff was motivated by her race and age remains speculative. Plaintiff asserts no facts linking the treatment she received to her age or race. To the extent that plaintiff claims her termination was the result of her complaint about MacGregor, the evidence does not show that plaintiff’s complaint was protected conduct. It is undisputed that Plaintiff complained about MacGregor’s aggressive manner, not perceived discrimination or harassment based on race or age. [Citation.]”
To establish a prima facie case of discrimination, appellant had to show that (1) she was a member of a protected class; (2) she was performing competently in the position she held; (3) she suffered an adverse employment action; and (4) some other circumstance suggests discriminatory motive. (See Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355; accord, St. Mary’s Honor Center v. Hicks, supra, 509 U.S. at p. 506.) Only if a plaintiff produces sufficient evidence to establish a prima facie case does the burden shift to the employer to present evidence showing it had a legitimate, nondiscriminatory reason for the employment action. (St. Mary’s Honor Center v. Hicks, at pp. 506-507.)
Here, we agree with the trial court that plaintiff has not asserted facts or provided evidence linking either MacGregor’s treatment of her or her termination to her race or age. With respect to MacGregor, the evidence shows only that plaintiff complained to Summerfeldt, her supervisor, about MacGregor’s “raised voice” and “aggressive” manner toward her during a meeting, and that plaintiff believed MacGregor treated her badly after that. There was no mention, however, of any perceived discrimination or that any “harassment” was based on her race or age. Plaintiff thus has failed to demonstrate a prima facie case of discrimination because she has not shown any circumstance suggesting a discriminatory motive. (See Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 355.)
In an email plaintiff wrote to her private email account shortly after the incident, plaintiff described MacGregor’s aggressive behavior and recounted a phone call to Summerfeldt, in which she “told him he needs to speak with Mr. McGregor [sic], because if it happen [sic] again I was going to HR and file a complaint.” Again, there was no mention in the email of perceived discrimination.
Moreover, even had plaintiff demonstrated a prima facie case of discrimination, defendant provided ample evidence to satisfy its burden of showing that it had a legitimate, nondiscriminatory reason for her termination: primarily the poor quality of her written (and other) work. (See Clark v. Claremont University Center, supra, 6 Cal.App.4th at p. 662.) This evidence included plaintiff’s 30, 60, and 90-day progress reports, the declarations of Eric Summerfeldt and Gloria Nickles, and Nickles’s October 24, 2007 memorandum recommending that plaintiff be terminated, all of which demonstrate that there were problems with plaintiff’s written work from the beginning and also that her written work did not improve over time. Instead, her performance deteriorated in other ways by the time of her 90-day review. Plaintiff’s attempts to link her poor evaluation at the 90-day review with Summerfeldt’s alleged friendship with MacGregor fails not only because she provides no evidence regarding the relationship between the two men, but, more importantly and as already explained, there is no evidence that either MacGregor’s treatment of plaintiff or her poor progress report was based on her race or age.
Plaintiff, on the other hand, provided no “ ‘substantial responsive evidence’ ” that defendant’s “proffered reasons were untrue or pretextual,” as was required to satisfy her evidentiary burden. (Loggins, supra, 151 Cal.App.4th at p. 1109; Clark v. Claremont University Center, supra, 6 Cal.App.4th at p. 662.) She averred that she did not have any more problems with her written work product than every other employee with similar responsibilities, but provided no evidence in support of this claim. Similarly, she asserted, without evidentiary support, that a younger employee who made major errors related to making indemnity payments was not terminated. (See Horn v. Cushman & Wakefield Western, Inc., supra, 72 Cal.App.4th at p. 807 [“[A]n issue of fact can only be created by a conflict of evidence. It is not created by speculation or conjecture”].)
Plaintiff claims that preparation of “Significant Loss Reports” (SLRs) was not a basis for termination in light of Summerfeldt’s comment in her 30-day review that the SLRs “are tough for even the seasoned Farmers [claims representative].” Plaintiff does not provide a correct citation to the record where this comment can be found. In addition, whether or not SLRs were difficult to prepare, the various progress reports and Gloria Nickles’s memorandum recommending termination reflect that plaintiff’s work-related deficiencies did not solely involve preparation of SLRs.
Similarly, plaintiff’s claim that her negative 90-day review was due to her problematic encounter with MacGregor is based solely on the facts that the 90-day review apparently took place shortly after the interaction with MacGregor and that Summerfeldt allegedly was friends with MacGregor. “[T]emporal proximity, although sufficient to shift the burden to the employer to articulate a nondiscriminatory reason for the employment action, does not, without more, suffice also to satisfy the secondary burden borne by the employee to show a triable issue of fact on whether the employer’s articulated reason was untrue and pretextual.” (Loggins, supra, 151 Cal.App.4th at p. 1112.)
In addition, as previously discussed with respect to the failure to demonstrate a prima facie case of discrimination, plaintiff provided no evidence of the relationship between Summerfeldt and MacGregor and, crucially, she provided no evidence whatsoever that MacGregor’s actions were motivated by her race or age.
This makes irrelevant her claim (with no reference to where this evidence can be found in the record) that MacGregor became plaintiff’s acting supervisor while Summerfeldt was out on leave.
Consequently, we conclude the trial court properly granted summary adjudication in favor of defendant on the race and age discrimination causes of action.
B. Retaliation
The trial court ruled that there was “no triable issue as to the Seventh Cause of Action for retaliation. Plaintiff alleges that Insurance Recruitment Specialists [the company that originally placed her with defendant] stopped working with her to find new employment in the insurance industry after she filed her discrimination complaint with the Department of Fair Employment and Housing. Plaintiff alleges nothing else that would support liability against Farmers. The Seventh Cause of Action does not allege any actionable conduct on the part of Farmers, since plaintiff’s allegations are directed at Insurance Recruitment Specialists, which is not a party to this action. In addition, Farmers shows that plaintiff’s complaint about MacGregor was not protected activity. [Citation.]”
To establish a prima facie case of retaliation, 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.’ [Citation.]” (Loggins, supra, 151 Cal.App.4th at p. 1109, quoting Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)
Here, plaintiff’s retaliation claim is based on Insurance Recruitment Specialists’ alleged withdrawal of its help in finding plaintiff a new job after she filed her FEHA complaint. In her briefing on appeal, plaintiff appears to be arguing that defendant used its “employment connection” with Insurance Recruitment Specialists to get her “black listed” in the insurance industry. She also alleges a connection between the withdrawal of Insurance Recruitment Specialists’ help and Ian MacGregor, whom she describes as an independent contractor and who, according to plaintiff, worked for Insurance Recruitment Specialists.
The trial court was correct in concluding that plaintiff had not alleged any actionable conduct on the part of defendant with respect to retaliation. Plaintiff’s assertion that defendant and MacGregor somehow influenced Insurance Recruitment Specialists to withdraw its support is based on speculation rather than on any evidence in the record. (See Horn v. Cushman & Wakefield Western, Inc., supra, 72 Cal.App.4th at pp 806-807). Moreover, even were there such evidence, plaintiff still would not have satisfied her burden of showing that defendant subjected her to an “adverse employment action.” (See Loggins, supra, 151 Cal.App.4th at p. 1109.)
The trial court properly granted summary adjudication in favor of defendant on the retaliation cause of action.
III. Wrongful Termination and Constructive Discharge
Plaintiff contends the trial court erred when it granted summary adjudication in favor of defendant on her wrongful termination and constructive discharge causes of action.
The trial court ruled that there was no triable issue as to plaintiff’s third cause of action for “common law wrongful termination. Farmers has offered evidence that it had a legitimate, non-discriminatory basis for plaintiff’s termination. Farmers provides Undisputed Facts and evidence to show that plaintiff was an at-will employee who was terminated from employment at the end of her probationary period for performance deficiencies. [Citation.]”
The trial court also ruled that there was “no triable issue as to the Fourth Cause of Action for constructive discharge. Constructive discharge is a theory that allows an employee who has resigned from employment based on intolerable conditions to allege that he or she has been terminated from employment, in order to support some underlying cause of action. There is no dispute that plaintiff was actually terminated from her employment, so the Fourth Cause of Action is a nullity.”
With respect to the wrongful termination cause of action, it is undisputed that plaintiff was an at-will employee. We have already determined that, based on all of the evidence in the record, her termination was not a result of discrimination or retaliation but, rather, was based on problems with her work performance. (See pt. II., ante.) Thus, there is no triable issue as to plaintiff’s wrongful termination claim and, accordingly, the trial court properly granted summary adjudication in favor of defendant on this cause of action as well.
Plaintiff asserts, without citation to any authority, that defendant’s policy of having new employees complete a probationary period is in conflict with the at-will nature of the employment contract. We do not view this as a conflict, nor can we conceive of how the probationary policy in any way undermines the at-will nature of the employment contract.
The trial court also properly granted summary adjudication in favor of defendant on plaintiff’s constructive discharge cause of action. “Constructive discharge occurs when the employer’s conduct effectively forces an employee to resign.” (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1244.) Given that it is undisputed that plaintiff did not resign, but instead was terminated, she cannot possibly prevail on a constructive discharge claim.
IV. Breach of Implied Contract and Implied Covenant of Good Faith and Fair Dealing
Plaintiff contends the trial court erred when it granted summary adjudication in favor of defendant on her causes of action for breach of implied contract and the implied covenant of good faith and fair dealing.
The trial court ruled: “[t]here is no triable issue as to plaintiff’s Fifth Cause of Action for breach of implied contract and her Sixth Cause of Action for breach of the implied covenant of good faith and fair dealing. There is no evidence that defendant was motivated by plaintiff’s race or age, for the reasons stated above. In addition, there is no triable issue concerning the existence of a contract to terminate only for good cause. Plaintiff concedes that she was an ‘at will’ employee based on express contract provisions. In addition, Plaintiff does not cite evidence supporting the conclusion that Defendant agreed to terminate her only for good cause. Plaintiff is correct that an ‘at will’ employee who is terminated can state a cause of action for discriminatory termination, but this fact does not itself support plaintiff’s claim for breach of contract or breach of implied covenant.”
We agree with the trial court’s ruling. Labor Code section 2922 provides: “An employment, having no specified term, may be terminated at the will of either party on notice to the other.” In such a situation, “an employer may terminate its employees at will, for any or no reason. A fortiori, the employer may act peremptorily, arbitrarily, or inconsistently, without providing specific protections such as prior warning, fair procedures, objective evaluation, or preferential reassignment.” (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p.350.) Similarly, “if the employer’s termination decisions, however arbitrary, do not breach... a substantive contract provision, they are not precluded by the covenant [of good faith and fair dealing].” (Ibid.)
Here, as previously discussed, it is undisputed that plaintiff was an at-will employee; nor was her termination a result of discrimination or retaliation. She thus could be terminated with or without good cause. (See Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 350.) The trial court properly granted summary adjudication in favor of defendant on plaintiff’s causes of action for breach of implied contract and the implied covenant of good faith and fair dealing.
V. Pending Discovery
Plaintiff contends the trial court should not have granted summary judgment because there were outstanding “discovery issues.” She argues the trial court “erred in failing to permit her to ‘Compel the Motion to Answer Subpoena Written Interrogatories’ of the discovery before dismissing the case....” She had served written interrogatories on nonparty witnesses, to which she had not received responses and wanted the trial court to compel the witnesses to answer the interrogatories. She also claims that defendant had not yet obeyed the trial court’s order to produce its custodian of records for a deposition, nor had it produced related documents.
With respect to pending discovery, the trial court ruled in its order granting summary judgment: “Plaintiff does not show that an additional continuance for discovery is appropriate. Plaintiff does not show facts essential to justify opposition may exist, but cannot be presented. The Court has already granted a continuance of approximately 4 months. Plaintiff does not show that Farmers violated the Court’s prior order compelling production of documents, or that those documents might create a triable issue of fact. Plaintiff’s pending motions to compel discovery responses do not appear likely to succeed, or to result in production of evidence creating a triable issue of fact.”
Even assuming, without deciding, that there were outstanding orders related to discovery, we conclude that the trial court did not err in granting summary judgment in this matter.
“If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication or both that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance....” (§ 437c, subd. (h).) “Where a lack of diligence results in a party’s having insufficient information to know if facts essential to justify opposition may exist, and the party is therefore unable to provide the requisite affidavit under Code of Civil Procedure section 437c, subdivision (h), the trial judge may deny the request for continuance of the motion. [Citations.]” (Desaigoudar v. Meyercord (2003) 108 Cal.App.4th 173, 190.) A trial court’s denial of a request for a continuance is reviewable for an abuse of discretion. (Ibid.)
Although plaintiff does not cast her argument in terms of section 437c, subdivision (h), as defendant points out, it is the only statute that would seem to apply to plaintiff’s argument.
In the present case, plaintiff did not submit a declaration in support of her opposition to summary judgment, and her opposition papers did not describe any particular facts she might obtain through discovery that would be essential to opposing the motion or any reason to believe such facts exist. Nor did she explain why additional time was needed to obtain such facts. (See Desaigoudar v. Meyercord, supra, 108 Cal.App.4th at p. 190.) In light of this failure to demonstrate the necessity of additional time to obtain essential facts to support the opposition to summary judgment, we find no abuse of discretion on the part of the trial court in determining that any pending discovery requests were not a basis for denying the summary judgment motion.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to defendant, Farmers.
We concur: Lambden, J., Richman, J.