Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC351086, Ronald Sohigian, Judge.
Caskey & Holzman, Marshall A. Caskey, Daniel M. Holzman, and Thomas Dorogi for Plaintiff and Appellant.
Carlton DiSante & Freudenberger, and Leigh A. White for Defendants and Respondents.
MOSK, J.
INTRODUCTION
Plaintiff and appellant Pakamas Chmielewski (plaintiff) took an unpaid medical leave of absence from her job at defendant and respondent Target Corporation (Target). Because her leave exceeded the 120 day maximum allowed under Target’s unpaid leave policy, Target filled her position with a permanent employee. Plaintiff initially returned to work in a position she believed was comparable in pay and responsibility to her prior position, but almost immediately was placed in a position that provided lower pay, fewer hours, and reduced responsibility. She complained to management, indicating that she wanted a position comparable to the one she held prior to her leave, but was informed that no such positions were currently available. And, when comparable positions did subsequently become available, plaintiff failed to submit written applications for them, believing she was not required to do so.
Based on the inferior position she was assigned upon her return to work, Target’s failure to promote her thereafter, and certain disciplinary write-ups she received after returning to work, plaintiff filed a complaint with the Department of Fair Employment and Housing (DFEH) against Target and a human resources manager, defendant and respondent Nefertiti Mitchell (Mitchell). After receiving a right to sue letter, plaintiff filed suit alleging causes of action for disability discrimination under the Fair Employment and Housing Act (FEHA), retaliation under the FEHA, and intentional infliction of emotional distress. The trial court granted defendants’ summary judgment motion and entered a judgment of dismissal.
Government Code section 12900, et seq.
On appeal, plaintiff argues there are triable issues concerning whether she suffered actionable discrimination or retaliation under FEHA. We hold that, in light of Target’s substantial evidence of legitimate, nondiscriminatory reasons for its actions, plaintiff’s evidence of pretext was insufficient to raise a triable issue of fact concerning either discrimination or retaliation under the FEHA. We therefore affirm the judgment in its entirety.
Plaintiff does not challenge on appeal the dismissal of her intentional infliction of emotional distress claim.
In view of our conclusion, we do not reach other contentions of Target, such as that plaintiff had not established a prima facie case or had not exhausted administrative remedies as to a claim, or that plaintiff is not entitled to punitive damages.
We state the facts in accordance with the standard of review applicable to summary judgments discussed post.
Plaintiff began working for Target in March 1987. In September 2004, plaintiff was a “level 3” employee at Target’s Lancaster store, earning $16.30 per hour, a level 3 rate of pay.
In September 2004, plaintiff held the full-time position of a level 3 “Sales Floor Team Leader” in the “Girls/Boys/Infants” department, one of the busiest and highest revenue generating departments in the store. It was a “critical position” for the Lancaster store because the employee holding that position was responsible for the success of the entire department. He or she was required to monitor the department constantly to ensure that it is fully stocked and organized, and often was the only employee working in that department.
On September 10, 2004, plaintiff took a medical leave of absence for stress and depression. Target’s unpaid medical leave policy at the time provided that an employee who takes an unpaid medical leave that exceeds 120 days would not be guaranteed a position equivalent to the one he or she held prior to such leave, but rather would receive an offer to return to work “as business circumstances permit.” Plaintiff’s supervisor, Cathy Kirk, temporarily filled plaintiff’s position with Maryellen Mata to ensure that the department would operate effectively during the holiday season. As an incentive for Mata to accept the position, Kirk informed her that if plaintiff’s leave exceeded 120 days, Mata would be given plaintiff’s level 3 position on a permanent basis. When plaintiff’s medical leave exceeded 120 days, Target filled plaintiff’s position with Mata on a permanent basis, as promised.
Mitchell, Target’s “Executive Team Leader—Human Resources” for its Lancaster store, was in charge of overseeing staffing issues and posting job openings at the store, and was therefore aware that when plaintiff returned from her medical leave in March 2005, there were no level 2 or 3 positions open. As a result, she informed plaintiff that the only positions open at the Lancaster store were level 1 positions. Plaintiff asked Mitchell to inquire whether there were any level 2 or 3 open positions at the nearby Palmdale store. Mitchell inquired, but was informed there were no open level 2 or 3 positions at that store. Accordingly, she offered plaintiff a level 1 position at the Lancaster store.
Level 1 employees had no guarantee to be scheduled to work a certain number of hours per week, and their hours fluctuated according to the needs of the store and the availability of the other level 1 employees for work.
According to plaintiff, however, when she met with Mitchell just prior to returning to work, Mitchell did not inform her that she would no longer be a level 3 employee. Upon plaintiff’s return to work, she was assigned to the jewelry department, performed level 3 job functions, and was paid at her $16.30 per hour rate—a level 3 wage. From plaintiff’s perspective, she was a level 3 employee on March 9, 10, and 11, 2005, upon her return to work. Consequently, when Mitchell informed plaintiff on March 11, 2005, that she would be performing a level 1 position, plaintiff believed Target “demoted” her. Between March 13, 2005, and March 26, 2005, plaintiff’s pay was reduced to $13 per hour, a level 1 rate.
According to Mitchell, after plaintiff returned to work, it took Mitchell three days to evaluate whether there were any level 2 or 3 positions available in either the Lancaster or Palmdale stores. While Mitchell was conducting that evaluation, plaintiff’s pre-leave hourly rate was not reduced. Once Mitchell determined that only level 1 positions were available, however, she informed plaintiff her hourly rate would be reduced. But when plaintiff complained to Mitchell about the $3 per hour pay reduction, Mitchell sought and obtained approval to limit the reduction to $1 per hour.
After plaintiff was placed in the level 1 position, she complained to Mitchell, Kirk (her supervisor), and the store Team Leader about both her job level and the number of hours she was being assigned as a level 1 employee. She also told Kirk she wanted to be returned to a level 2 or 3 position. In addition, plaintiff complained in writing to the Lancaster store Team Leader and the Team Relations Leader about her demotion, Target’s differential treatment of her due to her prior depression, her reduced hours, and her job level.
Prior to plaintiff’s medical leave, she was available to work any day of the week in her level 3 position, and she typically worked 30 to 40 hours per week. After plaintiff returned to work, she informed Target that she was unavailable to work Wednesdays or Saturdays; thereafter she indicated that she was available Wednesdays, but was unable to work after 5:00 p.m. except on Thursdays. According to Mitchell and Kirk, plaintiff’s unavailability to work after 5:00 p.m. or on Saturdays made it difficult to schedule her for the same number of hours she had worked as a level 3 employee with unlimited availability. Plaintiff, however, advised Target that despite her more limited availability, she was willing and able to work 40 or more hours per week.
Only 25 hours per week were required for a level 2 position and 32 to 35 hours for a level 3 position.
Following plaintiff’s return from leave, Target offered her work in other positions when she was not otherwise scheduled to work to provide her with additional hours. Also, after plaintiff returned to work, level 2 and level 3 positions became available at both the Lancaster and Palmdale stores, and plaintiff was aware of the process for applying for such positions. Nevertheless, plaintiff did not fill out any “Target Promotional Opportunity Applications,” the document Target used to consider existing employees for promotion to open positions.
According to plaintiff, however, Target’s handbook did not state that an employee must fill out a written application before being considered for a promotion. And plaintiff believed that several employees were promoted without filling out a written application.
Plaintiff eventually submitted a written application for a promotion, but it was for a level 1 position that included a pay raise. Also, plaintiff’s fellow employee, Hiroe Garcia, reported that plaintiff had complained to her about the stress of her level 3 position before plaintiff took her leave of absence and that after plaintiff’s return from leave, she told Garcia that she wanted to remain in a level 1 position.
In her 17 years with Target, plaintiff had never been disciplined, but 16 days after she returned to work she received the first of four written warnings, entitled “Corrective Action Documents,” for allegedly failing to take a lunch break before she had worked five hours—a violation of the company’s meal period policy. Plaintiff signed the initial warning, but refused to sign the other three; and Mitchell signed all of them without obtaining plaintiff’s version of the events.
PROCEDURAL BACKGROUND
Plaintiff sued Target and Mitchell, alleging three causes of action for (i) disability discrimination in violation of the FEHA; (ii) retaliation in violation of FEHA; (iii) and intentional infliction of emotional distress. Target and Mitchell filed a motion for summary judgment raising multiple grounds for an adjudication in their favor of each cause of action.
Mitchell was not named in the discrimination cause of action.
The trial court granted the motion, finding that as to the discrimination and retaliation claims, plaintiff had failed to raise a triable issue of fact concerning pretext and that the intentional infliction of emotional distress claim was barred by the exclusivity of the Workers’ Compensation law. (Lab. Code, § 3602.) The trial court thereafter entered judgment in favor of Target and Mitchell.
Plaintiff appealed from the judgment dismissing her action against Target and Mitchell. But in her opening brief, she challenges only the trial court’s summary adjudication of her statutory claims for discrimination and retaliation under FEHA, and makes no contentions about the propriety of the trial court’s dismissal of her intentional infliction of emotional distress claim.
DISCUSSION
A. Standard of Review
“We review the grant of summary judgment de novo. (Szadolci v. Hollywood Park Operating Co. (1993) 14 Cal.App.4th 16, 19 [17 Cal.Rptr.2d 356].) We make ‘an independent assessment of the correctness of the trial court’s ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law.’ (Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222 [38 Cal.Rptr.2d 35].) A defendant moving for summary judgment meets its burden of showing that there is no merit to a cause of action by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) Once the defendant has made such a showing, the burden shifts back to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or as to a defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849, 853 [107 Cal.Rptr.2d 841, 24 P.3d 493].)” (Moser v. Ratinoff (2003) 105 Cal.App.4th 1211, 1216-1217.)
“In performing our de novo review, we view the evidence in the light most favorable to plaintiffs as the losing parties. [Citation.] In this case, we liberally construe plaintiffs’ evidentiary submissions and strictly scrutinize defendants’ own evidence, in order to resolve any evidentiary doubts or ambiguities in plaintiffs’ favor.” (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.)
B. Prohibited Discrimination and Retaliation Under the FEHA
Government Code section 12940, subdivision (a) provides in pertinent part that it is an unlawful employment practice for an “employer, because of the . . . physical disability, mental disability, [or] medical condition . . . of any person . . . to discriminate against the person in compensation or in terms, conditions, or privileges of employment.” “Under [the] FEHA, an employer may not discriminate against a worker based on the employee’s physical condition or disability. (Gov. Code, § 12940, subd. (a).) . . . [¶] . . . In order to establish a prima facie case [of disability discrimination] under [the] FEHA, [the plaintiff is] required to show that he suffered from a disability, was otherwise qualified to do his job, and was subjected to adverse employment action because of his disability. (Deschene v. Pinole Point Steel Co. (1999) 76 Cal.App.4th 33, 44 [90 Cal.Rptr.2d 15].)” (Finegan v. County of Los Angeles (2001) 91 Cal.App.4th 1, 7.)
The FEHA also provides that it is an “unlawful employment practice” for “any employer . . . or person to . . . 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.” (Gov. Code, § 12940, subd. (h); see Cal. Code Regs., tit. 2, § 7287.8, subd. (a).) “Employees may establish a prima facie case of unlawful retaliation by showing that (1) they engaged in activities protected by the FEHA, (2) their employers subsequently took adverse employment action against them, and (3) there was a causal connection between the protected activity and the adverse employment action.” (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 472.)
C. Proving Discrimination and Retaliation Under the FEHA
California “has adopted the three-stage burden-shifting test established by the United States Supreme Court for trying claims of discrimination . . . based on a theory of disparate treatment. [Citations.] [¶] This so-called McDonnell Douglas test reflects the principle that direct evidence of intentional discrimination is rare and that such claims must usually be proved circumstantially.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 (Guz).) Under the McDonnell Douglas test, the initial burden of coming forward and proving a prima facie case of discrimination is on the plaintiff. (Ibid.) “Generally, the plaintiff must provide evidence that (1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, . . . and (4) some other circumstance suggests discriminatory motive.” (Id. at p. 355.) If the plaintiff establishes a prima facie case, a rebuttable presumption of discrimination arises. (Ibid.)
McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792.
Upon a showing of a prima facie case by the plaintiff, “the burden shifts to the employer to rebut the presumption by producing admissible evidence, sufficient to ‘raise[] a genuine issue of fact’ and to ‘justify a judgment for the [employer],’ that its action was taken for a legitimate, nondiscriminatory reason. [¶] If the employer sustains this burden, the presumption of discrimination disappears. [Citations.] The plaintiff must then have the opportunity to attack the employer’s proffered reasons as pretexts for discrimination, or to offer other evidence of a discriminatory motive.” (Guz, supra, 24 Cal.4th at pp. 355-356.) “The ultimate burden of persuasion on the issue of actual discrimination remains with the plaintiff.” (Id. at p. 356.)
The same burden shifting analysis under McDonnell Douglas applies to the trial of retaliation cases under the FEHA. “Once an employee establishes a prima facie case [of retaliation under FEHA], the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 68 [105 Cal.Rptr.2d 652].) 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. (Ibid.)” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)
D. Pretext for Discrimination
Assuming, arguendo, that plaintiff carried her initial burden of coming forward and proving a prima facie case of disability discrimination, Target successfully rebutted that showing with sufficient evidence that its actions toward plaintiff were taken for legitimate, nondiscriminatory reasons. Target presented uncontroverted evidence that under its medical leave policy, plaintiff was not entitled to return to her level 3 position because her leave exceeded 120 days and that her position had been permanently filled by Mata based on legitimate business needs. Target also presented competent testimony from Mitchell that there were no level 2 or level 3 positions open at either the Lancaster or Palmdale stores at the time plaintiff returned from leave. And, Target presented evidence that when level 2 or level 3 positions did become available, plaintiff failed to fill out the required written application for a promotion to one of those positions.
Under the McDonnell Douglas burden shifting analysis described above, Target’s showing was sufficient to shift to plaintiff the ultimate burden of establishing that Target’s stated reasons for its actions were pretextual. In Guz, supra, 24 Cal.4th 317—an age discrimination case—the defendant employer “offered extensive evidence of its reasons,” unrelated to age discrimination, for eliminating the business unit in which the plaintiff worked and for the individual personnel decisions that led to the plaintiff’s release. (Id. at p. 353, italics added.) Therefore, according to the court in Guz, the plaintiff “was thus obliged to point to evidence raising a triable issue—i.e., permitting an inference—that, notwithstanding [the defendant’s] showing, its ostensible reasons were a mask for prohibited age bias.” (Ibid.)
After reviewing the plaintiff’s proffered evidence of pretext, the court in Guz, supra, 24 Cal.4th 317 concluded that “even without considering [the defendant’s] explanation, [the plaintiff’s] evidence raised, at best, only a weak suspicion that discrimination was a likely basis for his release. Against that evidence, [the defendant] has presented a plausible, and largely uncontradicted, explanation that it eliminated [the unit in which the plaintiff worked] and chose others over [the plaintiff], for reasons unrelated to age. . . . [¶] Under these circumstances we conclude, as a matter of law, that [the plaintiff] has failed to point to evidence raising a triable issue that [the defendant’s] proffered reasons for its actions were a pretext for prohibited age discrimination.” (Id. at pp. 369-370, italics added.)
In response to Target’s substantial showing of legitimate, nondiscriminatory reasons for its actions, plaintiff has presented little, if any, evidence of pretext. For example, in response to Target’s explanation that there were no level 2 or level 3 positions available at the time plaintiff returned from leave, plaintiff asserts that, for the first three days after her return to work, she performed level 3 job functions and was paid her former level 3 wage. But Target offered Mitchell’s testimony that during that three day period, plaintiff was temporarily assigned those duties while Mitchell evaluated available permanent positions, which assignment was consistent with company practice. Thus, the discriminatory inference, if any, that arose from plaintiff’s three-day assignment upon her return to work was, at best, weak and therefore insufficient to overcome Target’s showing of nondiscriminatory reasons for its actions.
In her reply, plaintiff emphasizes that in her meeting with Mitchell just prior to her return to work, plaintiff was not informed that she would no longer be a level 3 employee, nor was she told of Target’s practice of temporarily assigning employees who return from leave, pending an evaluation of available, permanent positions. According to plaintiff, each of those facts supported an inference that Target’s proffered explanation for her demotion to a level 1 position was pretextual. We disagree.
Although Mitchell presumably was aware at the time she met with plaintiff that plaintiff’s level 3 position had been filled by Mata and was no longer available, her testimony supports a reasonable inference that she had not yet conducted the evaluation necessary to determine whether other level 3 positions were available to plaintiff. As Mitchell testified, the reason for plaintiff’s temporary three-day assignment upon her return was to allow Mitchell time to investigate what other positions were available. It was only after that investigation that Mitchell confirmed there were no level 2 or level 3 positions available. Thus, Mitchell’s failure at the meeting to inform plaintiff that no level 3 positions were available is consistent with her testimony about her subsequent investigation, and does not raise the discriminatory inference that plaintiff ascribes to it.
Similarly, that Mitchell did not inform plaintiff at their meeting about the company’s temporary assignment practice does not support a reasonable inference of pretext. Mitchell testified that the company routinely followed that practice when employees returned from leave, and plaintiff presented no evidence showing that Mitchell’s testimony in that regard was inaccurate or misleading. Instead, plaintiff speculates—based solely on Mitchell’s failure to mention the practice during her meeting with plaintiff—that the practice was created “after-the-fact” as an excuse designed to mask Target’s true motive. In light of Target’s evidence of legitimate, nondiscriminatory reasons for its actions, plaintiff’s proffered circumstantial evidence is too “weak” and speculative to support a “rational” inference of pretext or a discriminatory motive. (Guz, supra, 24 Cal.4th at pp. 355-356.) As the court stated in Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 807 (which case is cited in Guz, supra, at pp. 341, 357, 361, fn. 24, 363), “‘To avoid summary judgment, [appellant] “must do more than establish a prima facie case and deny the credibility of the [defendant’s] witnesses.” [Citation.] [He] must produce “specific, substantial evidence of pretext.” [Citation.]’ (Bradley v. Harcourt, Brace and Co. (9th Cir. 1996) 104 F.3d 267, 270.) We emphasize that an issue of fact can only be created by a conflict of evidence. It is not created by speculation or conjecture. (See Compton v. City of Santee (1993) 12 Cal.App.4th 591, 595-596 [15 Cal.Rptr.2d 660].)”
E. Pretext for Retaliation
According to plaintiff, when she learned of her assignment to a level 1 position, she engaged in a protected activity—complaining to management about her job level and wage. Soon thereafter, she claims that Target retaliated against her when it issued four disciplinary write-ups, the first disciplinary action taken against her in 17 years with Target. In addition, plaintiff contends that after she complained about her level 1 position, Target retaliated against her by failing to promote her.
As discussed above, the parties’ respective evidence on plaintiff’s retaliation claim is subject to the same McDonnell Douglas burden shifting analysis as her discrimination claim. Assuming, arguendo, that plaintiff’s evidence concerning her exemplary disciplinary record and the timing of the written warnings carried her initial burden of coming forward with evidence establishing a prima facie case of retaliation, Target presented sufficient evidence of legitimate, nonretaliatory reasons for its actions.
As to its disciplinary actions against plaintiff, Target presented evidence that plaintiff did violate, on each occasion in question, the company policy regulating meal periods. And Target’s evidence also showed that it was the company’s practice to issue such written warnings when meal period violations occurred. Although plaintiff presented excuses for the violations and refused to sign three of the written warnings, she never denied that the violations occurred.
Based on Target’s showing of a legitimate, nondiscriminatory reason for issuing the disciplinary warnings, the burden shifted to plaintiff to show that Target’s proffered reason was pretextual. As evidence of pretext, plaintiff opined that she was singled out for disciplinary action, while others who committed similar violations were not. However, she was only able to identify one other employee whom she believed violated the meal period policy and was not disciplined. But Target countered plaintiff’s belief concerning that other employee with evidence that the employee in question had also received a written warning about meal period violations. Based on the entire evidentiary record on this issue, plaintiff failed to raise a triable issue concerning whether Target’s proffered reasons for disciplining her were pretextual.
Plaintiff’s retaliation claim based on Target’s alleged refusal to promote her fails for the same reasons her discrimination claim failed—i.e., plaintiff presented insufficient evidence that Target’s proffered reasons for not promoting her from her level 1 position were pretextual. In response to plaintiff’s assertions about Target’s failure to promote her, Target presented competent evidence of the company’s policy requiring written applications for promotion, and plaintiff admitted that she did not make a written application for the available level 2 and level 3 positions. That evidence shifted to plaintiff the affirmative burden of showing that Target’s reasons for not promoting her were pretextual.
Although plaintiff contended that several employees were promoted without making a written application, Target’s evidence explained that each such employee either filled out an application or was not required to do so under the circumstances. Target’s evidence also showed that plaintiff’s limited availability after her return from leave would have disqualified her for a level 3 position in any event. In addition, Target pointed to the fact that, when plaintiff ultimately did submit a written application for a promotion, it was for a level 1 position, not a level 3 position—evidence that corroborated fellow employee Garcia’s testimony that plaintiff had told her she had been “stressed” in her level 3 position and therefore wanted to stay in a level 1 position. Given Target’s evidence of its legitimate reasons for not promoting her, plaintiff failed to satisfy her burden of showing that those reasons were pretextual.
DISPOSITION
The judgment in favor of Target and Mitchell is affirmed. Defendants shall recover their costs.
We concur: TURNER, P. J., KRIEGLER, J.