Opinion
NOT TO BE PUBLISHED
San Francisco City & County Super. Ct. No. CGC-95-44178
Lambden, J.
Martha E. Hubbard filed an action against Blue Shield of California (Blue Shield) for age discrimination under the California Fair Employment and Housing Act (FEHA) and the common law. The trial court granted summary judgment in favor of Blue Shield, finding Hubbard failed to present evidence of a prima facie case of age discrimination or sufficient evidence to raise a triable issue of fact that Blue Shield’s legitimate reasons for its employment decisions were pretextual. Hubbard appeals and we affirm the lower court’s ruling.
BACKGROUND
Blue Shield hired Hubbard on July 10, 2000, as a project manager in the brand management and marketing services department (BMMS). Hubbard was six days shy of her 59th birthday on the date Blue Shield hired her. Hubbard’s job was to translate into Spanish marketing material, Medicare materials, and other miscellaneous documents. Hubbard was Blue Shield’s sole translator. Hubbard also arranged for agencies to translate documents when she had more work than she could handle.
The name of this department changed several times during Hubbard’s employment, but the department was named BMMS during the time period that is relevant to this appeal.
Blue Shield maintains that it was aware of Hubbard’s age at the time she was hired because she had worked for Blue Shield previously from April 1997 until January 1998 as a customer service representative.
Blue Shield hired Douglas Biehn in April 2004 as the new director of the BMMS department. Biehn’s responsibilities included development, implementation, and management of the corporate brand strategy. He also was responsible for an organization that produced Blue Shield’s marketing plans.
Biehn testified that he decided to explore the idea of streamlining the BMMS department’s service in June 2004. Prior to making that decision, he met with over 30 different marketing managers about their operational needs and experiences with the BMMS department. He also hired an outside consultant to assess the BMMS department and assist with development of a business plan. The restructuring involved eliminating certain jobs and creating other jobs. According to Biehn, the principal reason for the reorganization was to improve productivity and the quality of the work. Biehn stated that his decisions regarding which jobs to eliminate were predicated on the functions of the position, not on the individuals filling the positions. Biehn presented his plan for review to corporate human resources and upper management prior to receiving final approval of his plan.
The final reorganization plan resulted in the elimination of three designer positions, one managerial position, the translation job, and the Macintosh systems administrator position. Several production jobs and a brand manager of culture and linguistics position were added. Biehn decided to outsource the Spanish translation work since the overflow work was already being completed by an outside vendor and he wanted to consolidate all the translation work to one outside vendor. He believed that the single vendor could handle the Spanish language translations, as well as the multilingual translations that he anticipated would be required under Senate Bill No. 853 (2003-2004 Reg. Sess.), enacted in chapter 713, 2003 Statutes.
Senate Bill No. 853 amended Health and Safety Code section 1367 and it added Health and Safety Code sections 1367.04 and 1367.07.
On November 10, 2004, after the reorganization plan had been approved, Biehn held a BMMS department meeting to announce the reorganization. Hubbard was not at work at the time of the meeting, but she met with her supervisor, Eric Swanson, later that day. Swanson told her that the department was being reorganized and one of the jobs to be eliminated as of December 3, 2004, was her translating job. He added that all of the translation was going to be sent to an outside agency. Swanson reported that he had told Biehn that he did not believe it was economically reasonable to outsource all the translation work. He also had requested that Hubbard be permitted to continue working until Blue Shield hired the new person who was to develop the outsourcing plan, but he received no response to this request. Swanson told Hubbard that her work was “stellar.”
A human resources representative told Hubbard that she could apply for other open positions with Blue Shield. Hubbard was aware that all open jobs were posted on Blue Shield’s web site. One of the jobs posted on the website was the newly created position of brand manager of culture and linguistics. Hubbard did not apply for that job. Hubbard did apply for three other positions, but Blue Shield hired other people for these positions.
Hubbard’s last day of work was December 3, 2004, and she filed her complaint with the Department of Fair Employment and Housing (DFEH) on February 16, 2005. In her DFEH charge, she claimed age discrimination based on losing her job as “Language Specialist” and the denial of her applications for the positions of “Staffing Coordinator, Marketing Project Coordinator and Associate/Intermediate Contract Analyst.”
On February 22, 2005, Blue Shield hired Marisa Ajdelman as the brand manager of culture and linguistics. At the time she was hired, she was 39 years old. When interviewing for the job, Ajdelman was told that she was needed to analyze, interpret, and apply Senate Bill No. 853 to Blue Shield’s compliance processes.
On May 11, 2005, Hubbard filed a complaint against Blue Shield in the trial court for equitable relief and damages. She filed her first amended complaint on July 12, 2005, claiming age discrimination under the FEHA and the common law. The pleading alleged that Hubbard was laid off from her job and rejected for other positions at Blue Shield because of her age. She sought punitive damages.
The amended complaint also included a claim under the Age Discrimination in Employment Act but, after Blue Shield removed the action to the federal court, the federal court granted Hubbard’s motion to dismiss this claim and remanded the case to the state trial court.
Blue Shield moved for summary judgment or, in the alternative, summary adjudication against Hubbard’s first amended complaint. The trial court held its hearing on October 5, 2006, and issued its order granting Blue Shield’s motion on October 16, 2006.
With regard to Hubbard’s claim of discrimination based on the loss of her job, the trial court found that Hubbard did not establish a prima facie case of discrimination because she “did not satisfy her burden of producing evidence demonstrating circumstances suggesting discriminatory motive.” The court found that Hubbard did not produce evidence demonstrating that similarly situated younger persons were treated more favorably and the record did not contain any aged-based comments relating to Hubbard by any decision-maker. Further, the court found that Blue Shield satisfied its burden of articulating a legitimate nondiscriminatory business reason for eliminating Hubbard’s position, namely that the translator position was eliminated as part of a departmental reorganization and the decision to outsource the translation work. The court found that Hubbard failed to present specific and substantial evidence rebutting the articulated business reason as required to demonstrate pretext.
The court also determined that Hubbard did not establish a prima facie case of discrimination based on not being selected for other positions for which she applied. The court ruled that the undisputed evidence established that Hubbard did not possess the qualifications for the positions for which she applied and that the individuals selected for the positions satisfied the qualifications. Further, the court found that Hubbard did not present any evidence of discriminatory motive.
Finally, the trial court concluded that Hubbard failed to establish a violation of a public policy and failed to present clear and convincing evidence that Hubbard acted with malice, oppression, or fraud, which was required to recover punitive damages.
The trial court entered its amended judgment on December 11, 2006. Judgment was entered in favor of Blue Shield and Hubbard was ordered to pay Blue Shield $12,678.48 in litigation costs.
Hubbard filed a timely notice of appeal.
DISCUSSION
I. Standard of Review
The court properly grants summary judgment if the record establishes no triable issue as to any material fact and the moving party is entitled to a judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact. . . . A prima facie showing is one that is sufficient to support the position of the party in question. [Citation.]” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851, fns. omitted.) Although the burden of production shifts, the moving party always bears the burden of persuasion. (Id. at p. 850.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Ibid.) We review the record de novo. (Id. at p. 860.)
II. Claim of Age Discrimination Under the FEHA
Hubbard contends that the trial court erred in finding that she failed to establish a prima facie case of age discrimination. She claims that Blue Shield illegally discriminated against her when it terminated her employment, refused to permit her to remain on the job until Ajdelman was hired, and rejected her applications for other positions at Blue Shield.
In Hubbard’s opposition to Blue Shield’s motion for summary judgment in the trial court she also claimed that Blue Shield unlawfully discriminated on the basis of age “by use of salary.” In her briefs in this court, she has not made any argument regarding any difference in salary between the younger and older employees and she has therefore abandoned this issue. Moreover, Hubbard failed to allege any age discrimination claim based on salary differences in her first amended complaint and therefore this issue was not properly before the lower court.
The FEHA prohibits an employer from discriminating on the basis of age. (Gov. Code, § 12940.) In California, courts employ the three-prong test set forth in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 (McDonnell Douglas) to resolve discrimination claims, including age discrimination. (Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 354 (Guz).) Under the McDonnell Douglas test, the plaintiff-employee must first set forth sufficient evidence to establish a prima facie case of discrimination. (Guz, supra, at pp. 354-356.) To establish a prima facie case of age discrimination, the plaintiff must show that the plaintiff is a member in the protected class, that the plaintiff was performing competently, that the plaintiff suffered an adverse employment action, and that there is some other circumstance suggesting a discriminatory motive. (Guz, supra, at p. 355.) While the plaintiff’s prima facie burden is “ ‘not onerous[,]’ ” the plaintiff must minimally show actions taken by the employer “ ‘ “were ‘based on a [prohibited] discriminatory criterion . . . .’ ” ’ ” (Ibid.)
Government Code section 12940, subdivision (a), 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: [¶] (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 refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.”
Once the employee satisfies the prima facie burden, a presumption of discrimination exists, and the burden then shifts to the employer in the second prong to show that its action was motivated by legitimate, nondiscriminatory reasons. (Guz, supra, 24 Cal.4th at pp. 355-356.) A reason is “legitimate” if it is “ facially unrelated to prohibited bias, and which, if true, would thus preclude a finding of discrimination.” (Id. at p. 358.) In the third prong, if the employee seeks to raise a triable issue, then the employee must produce “substantial responsive evidence” the employer’s showing was untrue or pretextual. (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1735.) Speculation does not constitute substantial responsive evidence. (Ibid.) Pretext may be demonstrated by showing “ ‘that the proffered reason had no basis in fact, the proffered reason did not actually motivate the discharge, or, the proffered reason was insufficient to motivate discharge.’ ” (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 224.)
A. Prima Facie Case
Courts have not settled how the prima facie case set forth in McDonnell Douglas should apply under California law to an employer’s motion for summary judgment against a claim of prohibited discrimination. (Guz, supra, 24 Cal.4th at p. 356.) Code of Civil Procedure section 437c provides that on summary judgment, the moving party must establish entitlement to “judgment as a matter of law.” (Id., subd. (c).) A moving defendant may do so by showing that the plaintiff’s action “has no merit” because one or more elements cannot be established or there is a complete defense.” (Id., subds. (a), (o)(2).) Only after the defendant has met that burden must the plaintiff respond with admissible evidence raising a triable issue. (Ibid.)
Our Supreme Court has pointed out that these relative burdens are less clear in the context of summary judgment proceedings. (Guz, supra, 24 Cal.4th at pp. 356-357.) “Several California decisions have suggested that because a plaintiff opposing summary judgment need not demonstrate triable issues until the moving defendant has made an initial no-merit ‘show[ing],’ the McDonnell Douglas burdens are ‘reversed’ on a defense motion for summary judgment against a claim of discrimination in employment. (Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 150-151 . . .; Addy v. Bliss & Glennon (1996) 44 Cal.App.4th 205, 216 . . .; Martin [v. Lockheed Missiles & Space Co., supra,] 29 Cal.App.4th 1718, 1730-1731; University of Southern California v. Superior Court (1990) 222 Cal.App.3d 1028, 1036 . . . .) Other California cases, however, have indicated that the plaintiff can survive an employer’s motion for summary judgment only by presenting, at the outset, triable evidence satisfying the prima facie elements of McDonnell Douglas. (See, e.g., Horn [v. Cushman & Wakefield Western, Inc. (1999)] 72 Cal.App.4th 798, 805-807; Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1002-1006 . . .; Caldwell [v. Paramount Unified School Dist. (1995)] 41 Cal.App.4th 189, 203.)” (Guz, supra, at pp. 356-357) In Guz, the Supreme Court refused to resolve the “prima facie burden” issue, because it concluded that the plaintiff had failed to present sufficient evidence that defendant’s legitimate reasons for its employment decision were pretextual. (Id. at p. 357.) As set forth, ante, the elements of a prima facie case of age discrimination are as follows: the plaintiff is a member in the protected class, the plaintiff was performing competently, the plaintiff suffered an adverse employment action, and there is some other circumstance suggesting a discriminatory motive. (Guz, supra, 24 Cal.4th at p. 355.) In the present case, there is no dispute that Hubbard was in a protected class, as she was over the age of 40. (Gov. Code, §§ 12940, 12926, subd. (b).) The parties also do not dispute that Blue Shield terminated Hubbard’s employment on December 3, 2004, and did not hire her for any other position. Blue Shield, however, maintains that Hubbard failed to establish a discriminatory motive.
Gov. Code section 12926, subdivision (b), provides: “As used in this part in connection with unlawful practices, unless a different meaning clearly appears from the context: [¶] . . . [¶] (b) ‘Age’ refers to the chronological age of any individual who has reached his or her 40th birthday.”
Although we have concluded in an earlier decision that the plaintiff must present evidence satisfying the prima facie case to survive a motion for summary judgment (see, e.g., Horn v. Cushman & Wakefield Western, Inc., supra, 72 Cal.App.4th at pp. 805-807), we conclude, similarly to the situation in Guz, supra, 24 Cal.4th at page 355, that in the present case we can skip the prima facie prong and proceed to the second and third prongs of the McDonnell Douglas test.
B. The Reasons for Blue Shield’s Employment Decisions and Hubbard’s Evidence of Pretext
The record establishes that Blue Shield set forth competent, admissible evidence of its reasons, unrelated to age bias, for terminating Hubbard’s job, for not permitting Hubbard to remain on the job until it hired Ajdelman, and for rejecting Hubbard’s applications for other open positions at Blue Shield. We therefore consider whether Hubbard presented any competent, admissible evidence to raise a triable issue of fact that Blue Shield’s proffered reasons for its employment decisions were pretextual.
1. Terminating Hubbard’s Employment
a. Blue Shield’s Proffered Reason
Blue Shield maintained that Biehn decided to restructure the BMMS department to make it more efficient, which included both adding and eliminating positions. Restructuring the department did not mean Blue Shield was legally permitted to “ ‘use the occasion as a convenient opportunity to get rid of its [older] workers.’ ” (Guz, supra, 24 Cal.4th at p. 358.) However, if Blue Shield’s decision to restructure was not based on a discriminatory motive, its true reasons for restructuring need not necessarily have been wise or correct. (Ibid.) If Blue Shield had legitimate reasons for restructuring, meaning the reasons were “facially unrelated to prohibited bias,” then a finding of discrimination was precluded. (Ibid.)
Blue Shield’s showing of reasons was made by competent and admissible evidence. Blue Shield presented evidence that, once it hired Biehn as the director of the BMMS Department in April 2004, he decided to restructure the department after conversing with 30 managers regarding their experiences with the BMMS department, retaining the services of an outside consultant, and reviewing the plan with the human resources department and upper management. Biehn testified that, when deciding on which positions to add or eliminate, he focused on the functions of the positions and did not consider the personnel in the positions. Biehn was aware that outside vendors were already completing the Spanish translation when Hubbard had too much work. Additionally, Biehn was aware that the BMMS department would be responsible for implementing the requirements of Senate Bill No. 853, and anticipated this legislation would require the translation of many documents into multiple languages. Biehn concluded that outsourcing all of the translation, including all of the Spanish translation, to one outside vendor would be more efficient and effective.
In support of its motion for summary judgment, Blue Shield produced the documented business rationale for the reorganization. It is undisputed that Hubbard’s translation duties were not performed in-house after Hubbard’s employment ended.
Additionally, Blue Shield presented evidence that the restructuring was not based on age when it established that three of the six employees whose jobs were eliminated as a result of the reorganization were under the age of 40. Although it is undisputed that Blue Shield hired 39-year-old Ajdelman on February 22, 2005, for the position of brand manager of culture and linguistics, Blue Shield presented evidence that Ajdelman was not replacing Hubbard, but performing a newly created job. The evidence that Ajdelman did not perform translation, but was responsible for monitoring and analyzing Senate Bill No. 853, was well-documented.
These reasons advanced by Blue Shield were legally sufficient to establish that Hubbard’s FEHA and common law claims of age discrimination based on the termination of her employment had no merit, because they were manifestly unrelated to intentional age bias against Hubbard. Thus, even if Hubbard had no initial burden to demonstrate a prima facie case of discrimination, Hubbard did have a burden in the face of Blue Shield’s showing of nondiscriminatory reasons, to establish there was nonetheless a triable issue that decisions leading to Hubbard’s termination were actually made on the prohibited basis of her age. (See, e.g., Guz, supra, 24 Cal.4th at p. 360.)
b. Hubbard’s Evidence that the Proffered Reasons Were Pretext
Hubbard claims that the record establishes that Blue Shield’s decision to terminate her employment was based on her age and Blue Shield’s claim of reorganization was simply a pretext. Hubbard contends that the younger employees who were in positions that were allegedly eliminated were permitted to stay, while the older employees in the eliminated positions were not provided other employment. She also maintains that Ajdelman, who was 39 years old when hired, replaced her despite Ajdelman’s not having any prior work experience in the insurance industry. She disputes Blue Shield’s claim that Ajdelman’s job required legislative or legal experience. Finally, Hubbard argues that outsourcing the translation duties did not make economic sense and there was no evidence that Blue Shield conducted any economic analysis. We consider each of her contentions.
i. Treatment of younger employees:
Hubbard complains that younger employees had their jobs eliminated in the restructuring process, but they were asked to remain employed at a reduced salary. Because Blue Shield did not ask the other older employees and her to take other jobs, she complains of differential treatment based on age.
Hubbard does not specify who these other older employees are.
The only evidence Hubbard cites to support her claim of differential treatment between the younger and older employees is testimony by JoAnn Blake, a copywriter. Blake named three persons under the age of 40 who had worked as designers and who she believed had their positions eliminated. Blake claimed these designers told her that the name of their positions had been changed and the salary had been reduced, but the job duties remained essentially the same. Blake further explained that Blue Shield offered these three women the newly named jobs for lower pay.
We note that, although Hubbard frequently cites to Blake’s testimony, she fails to ever explain who Blake is and the relevance or significance of her testimony.
Beth Stankard, the human resources representative at Blue Shield, testified that the foregoing designer positions were eliminated. She stated that it was determined that Blue Shield had too many graphic designers, but not enough production people in the creative services group. Although graphic designers could do production, their jobs had a more creative role. The people who were creative designers were offered the opportunity to apply for production jobs if they were interested in doing those jobs. The three designers who had lost their jobs decided not to apply for the production jobs.
It is undisputed that all the affected employees, including Hubbard, were told they could apply for available positions and therefore were treated the same. Thus, Hubbard, like the designers, was told she could apply for other positions at Blue Shield. It is also undisputed that Hubbard did not have production or design experience and did not apply for the production jobs.
The designers had skills that transferred to the production jobs and therefore they were encouraged to apply for those positions. It is undisputed that no other job at Blue Shield required translation skills. Blue Shield presented evidence that Hubbard was treated the same as the only other employee, Michael Morris, whose function was outsourced. Blue Shield also terminated his employment on December 3, 2004. Hubbard presented no evidence that she was told not to apply for or was denied any job that used her Spanish translating skills. Hubbard has presented no credible evidence that other, younger employees were treated differently than her.
Neither party provides any information about Morris’s age or job duties.
ii. Hiring Ajdelman:
Hubbard argues that Ajdelman, a 39-year-old woman at the time she was hired, replaced her. She claims that Ajdelman was younger and less qualified than she. Hubbard maintains that Ajdelman was to translate documents and her job responsibility did not involve analyzing Senate Bill No. 853.
To support her claim that Ajdelman did not need legislative or legal experience, Hubbard cites to 19 pages of deposition testimony without citing to any specific statement. “ ‘It is the duty of a party to support the arguments in its briefs by appropriate reference to the record, which includes providing exact page citations.’ ” (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.) “There is no duty on this court to search the record for evidence” (Belli v. Curtis Pub. Co. (1972) 25 Cal.App.3d 384, 394, fn. 5), and an appellate court may disregard any factual contention not supported by a proper citation to the record (Board of Administration v. Wilson (1997) 52 Cal.App.4th 1109, 1154). A citation to 19 pages of deposition testimony, which is not accompanied by any discussion about what was actually said, does not provide this court with a specific cite and is the equivalent of providing no citation in violation of California Rules of Court, rule 8.204(C).
Hubbard bolsters her assertion that Ajdelman was not hired to analyze Senate Bill No. 853 by citing to testimony by copywriter Blake. When asked about Ajdelman, Blake stated that she had no interactions with Ajdelman while Blake was carrying out her job duties and that she could not really determine Ajdelman’s job duties “because [Ajdelman] didn’t have anything to do at the time I was there.” Blake stated that when she asked Ajdelman whether she was going to do any translations, Ajdelman responded she had not received them yet. Blake also stated that Ajdelman did not know any Spanish.
This testimony by Blake does not establish that Ajdelman was hired to do translations or that she, in fact, did them. Indeed, according to Blake, Ajdelman did not even know Spanish. In contrast, Blue Shield presented credible evidence that Ajdelman was not hired to be a translator. Ajdelman testified that she was told at her job interview that her principal responsibility would be to analyze and interpret new legislation and apply it to Blue Shield’s compliance processes. She testified that she was “not responsible for translations for the company in any way, shape or form.” Her only job responsibility related to translation was to “assist the company in identifying, if necessary, for legislative compliance purposes outside multilingual vendors to handle massive volumes of translation of vital documents into possibly more than one threshold language.” At her job interview, Ajdelman told Blue Shield that she did not have experience with interpreting and applying legislation, but Blue Shield told her that she would have in-house counsel to advise her and “the nature of the legislation closely related” to her experience.
Further, the job description of the cultural and linguistic brand manger, the job filled by Ajdelman, did not mention translation. The job required a “Bachelor’s degree and seven years marketing experience or equivalent combination of education and experience.” Hubbard’s reliance on hearsay testimony by a copywriter does not support the claim that Ajdelman replaced Hubbard. The evidence is undisputed that the full-time translation work performed previously by Hubbard was not performed by anyone at Blue Shield after the reorganization.
The job description for the cultural and linguistic brand manger position provided in relevant part: “Responsibilities will be focused on meeting the cultural and linguistic needs of our members and ensuring that Blue Shield of California is compliant with legislation relating to this area. [¶] Specifically, the Cultural/Linguistic Brand Manger will: [¶] Analyze the implication of state legislation designed to address consumers’ linguistic and cultural needs in the health plan arena. As appropriate, engage in the shaping of legislative requirements and serve as the official [Blue Shield] representative . . . . [¶] Manage the implementation planning necessary for compliance with regulations, including system changes, the determination of target languages, identification of key channels and documents for translation, managing our relationship with translation vendor(s), resource allocation and budget implications. [¶] Develop relationships and work with key constituents across the [Blue Shield] organization to implement the changes necessary, helping to form the organizational mechanisms required for implementation. . . . [¶] Exercise a deep understanding of cultural and linguistic issues related to ethnic diversity and a desire to positively impact the member/patient experience. . . .”
Not only is there no evidence to support Hubbard’s claim that Ajdelman replaced her, the record does not support any claim that hiring the younger Ajdelman for the brand manager job rather than hiring her evinces age discrimination. Hubbard testified that she had no personal knowledge regarding the requirements of the brand manager job and it is undisputed that she did not apply for this position. Moreover, Hubbard admitted that she did not have a bachelor’s degree or marketing experience, which were basic requirements of the position. In contrast, Ajdelman had a bachelor’s degree, and had significant prior job experience in marketing, advertising, and communications.
Thus, we conclude that Hubbard presented no evidence that Blue Shield’s motivation for hiring Ajdelman rather than her for the brand manager job was based on a discriminatory motive.
iii. Outsourcing Translation Positions:
Hubbard contends that outsourcing translation was not cost effective and therefore Blue Shield’s only reason for terminating her employment had to be based on age discrimination. To support this contention, Hubbard points out that Blue Shield never did a cost analysis for outsourcing its translation needs. Hubbard also stresses Swanson’s statement to Biehn that he did not believe outsourcing translation was a cost effective decision. Hubbard argues that the absence of documents supporting Blue Shield’s decision that terminating Hubbard’s job was cost effective was “very significant.” (See McGinest v. GTE Service Corp. (9th Cir. 2004) 360 F.3d 1103, 1123 (McGinest).)
Blue Shield asserts that it did not need to do a cost analysis because Biehn already knew the costs of translating the documents by outside vendors because Hubbard had used outside vendors for the Spanish translation work that she could not handle.
Blue Shield presented credible evidence that cost saving was one factor considered, but was not the principal goal for the restructuring. Blue Shield presented evidence that the principal reason for eliminating Hubbard’s position was that Biehn concluded it would be more efficient and effective to have all translations consolidated in one vendor, especially since outsourcing had already occurred during Hubbard’s tenure with Blue Shield because she had used outside agencies when she had received more work than she could handle. Additionally, Biehn anticipated that Blue Shield would be obligated to make more documents available in multiple languages as a result of Senate Bill No. 853. Biehn therefore concluded it would be more efficient to have all of the translations performed by one vendor who could translate into any language required under Senate Bill No. 853.
Blue Shield’s responses to Hubbard’s interrogatories indicate that outsourcing all of the translating work was cost effective. According to Blue Shield, its total translation cost for 2004 was $186,202, which consisted of labor costs of $83,911 for Hubbard’s employment plus outsourced translation costs of $102,291. Blue Shield’s translation costs for 2005 totaled $77,641. Blue Shield, however, did not present documents to support these interrogatory responses because of a discovery dispute.
Hubbard claims that she proved Blue Shield’s reason for terminating her employment was false by presenting Blue Shield’s organization chart. Blake provided Hubbard with a copy of an undated organizational chart that she claimed was distributed between late December 2004 and early January 2005. The chart states: “Contractor: Translation . . . .”
We conclude that the organization chart upon which Hubbard relies does not establish that Blue Shield did not plan to use an outside vendor. The chart confirms that an employee was not going to do the translation work. Hubbard presents no evidence that “contractor” does not mean an outside agency or vendor.
Hubbard also argues that Blue Shield failed to provide any document establishing that outsourcing was cost effective and she claims this lack of documentation establishes Blue Shield’s reason was simply a pretext. In making this argument, Hubbard cites, without any analysis, McGinest, supra, 360 F.3d 1103. In this Ninth Circuit case, the court held that a genuine issue as to pretext was shown by the absence of any documentation confirming that a company hiring freeze was in place during the relevant time period. (Id. at p. 1123.) The Ninth Circuit concluded that the fact a large company did not have a single memorandum, meeting notes, or other evidence of the alleged hiring freeze or financial difficulties leading to the alleged hiring freeze provided adequate circumstantial evidence that the hiring freeze did not exist. (Ibid.) Moreover, the McGinest court noted that there was additional circumstantial evidence of pretext given the defendant’s “permissive response to harassing actions undertaken by coworkers and supervisors, combined with the absence of black supervisors and managers in the workplace[.]” (Id. at p. 1123.)
In contrast to the facts in McGinest, Blue Shield presented extensive evidence of its reorganization. It provided a copy of the business plan and established that positions had been eliminated and added. In addition to the documentary evidence, Blue Shield presented testimony from a number of people that the reorganization was concluded only after consulting with numerous marketing managers, people in human resources, and upper management. Additionally, Biehn testified that he retained the services of an outside consultant to assess the BMMS department and to assist with development of a business plan. Not only did Blue Shield present documentary evidence supporting its assertion that there was a reorganization, unlike the situation in McGinest, Hubbard presented no additional circumstantial evidence of pretext. Accordingly, the situation in the present case does not resemble the facts in McGinest v. GTE Service Corp., supra, 360 F.3d at page 1123.
Hubbard has presented no evidence that cost was a major consideration or even that outsourcing was not cost effective. Swanson’s opinion, without any elaboration on the basis for his opinion, does not constitute evidence. Further, Hubbard has presented no evidence that outsourcing all of the translations to one vendor was neither efficient nor effective. Hubbard also has presented no evidence to support a claim that Blue Shield’s reorganization was a sham and its real purpose was to terminate the employment of older people.
We conclude that Blue Shield presented credible evidence of a legitimate business reason for terminating Hubbard’s job and Hubbard has failed to produce “substantial responsive evidence” (Martin v. Lockheed Missiles & Space Co., supra, 29 Cal.App.4th at p. 1735) that Blue Shield’s showing was untrue or pretextual.
2. Not Extending Hubbard’s Employment Beyond December 3, 2004
Hubbard argues that Blue Shield’s refusal to extend her employment beyond December 3, 2004, until it hired a new person, was motivated by age discrimination. When Swanson told Hubbard that her last day of work would be December 3, Hubbard testified that she asked Swanson, “Why couldn’t they even let me stay to the end of December?” Swanson responded that he had tried to get Blue Shield to let Hubbard stay until the end of December, but Biehn never responded to his request.
Blue Shield replies that the record contains no evidence that Hubbard ever requested to stay beyond December 3, 2004. However, even if she did make such a request to Blue Shield, it maintains that it had a legitimate reason for terminating her employment on December 3, 2004. It presented the testimony of Beth Stankard, the human resources representative at Blue Shield who coordinated the reorganization, and she stated that Hubbard’s translator function and the computer tech position were completely outsourced and vendors were immediately available to take over that work when the reorganization was implemented in early December. In contrast to Hubbard’s position, as discussed above, the graphic production work remained and was not outsourced. Blue Shield did eliminate the graphic designers’ positions but the people filling those jobs had skills that permitted them to perform some of the restructured production work during December while the department transitioned to a more production-focused operation.
Hubbard argues that Blue Shield’s reason for refusing to extend her employment beyond December 3, 2004, is being raised for the first time on appeal and therefore it should not be considered. Contrary to Hubbard’s protests, Stankard’s deposition testimony was presented in the lower court in support of Blue Shield’s motion for summary judgment. Although Blue Shield’s evidence was presented in the lower court, Hubbard’s claim of age discrimination based on Blue Shield’s refusal to extend her job beyond December 3, 2004, is not properly before us. In her first amended complaint, Hubbard claimed age discrimination based on the elimination of her translation position and Blue Shield’s failure to hire her for other positions. There is no allegation related to Blue Shield’s failure to extend her employment beyond December 3. It is elementary that the issues to be decided by summary judgment and considered on appeal from the grant of summary judgment are limited to the contentions asserted in the complaint. (See, e.g., Government Employees Ins. Co. v. Superior Court (Sims) (2000) 79 Cal.App.4th 95, 98, fn. 3.) Hubbard did not seek leave to amend her complaint to expand her claims, although she might properly have done so. (See Soderberg v. McKinney (1996) 44 Cal.App.4th 1760, 1773.) Accordingly, Hubbard’s claim of discrimination based on Blue Shield’s refusal to permit her to work beyond December 3 is not properly before us.
Even if we were to presume that Hubbard had preserved the foregoing issue for appeal and we were also to presume that Blue Shield did deny a request by Hubbard to remain on the job through the end of December 2004 or until another person was hired, Blue Shield provided a legitimate business reason for not keeping Hubbard beyond December 3, 2004. As already discussed, Blue Shield presented evidence that the translation jobs were given to outside agencies as soon as the reorganization was implemented. It is undisputed that no employee of Blue Shield did any translating after December 3, 2004. Hubbard has provided no evidence that her translation skills were transferable to any other job at Blue Shield. Therefore, Hubbard cannot prevail on her claim of age discrimination based on Blue Shield’s refusal to permit her to work beyond December 3, 2004.
3. Hubbard’s Applications for Other Positions
Hubbard claims that Blue Shield rejected her application for other positions based on her age. Hubbard maintains that she applied for a staffing coordination position, and declares that Blue Shield falsely claimed it never received this application. There is no evidence in the record that supports this latter claim that Blue Shield actually received this application and there is no evidence that Hubbard applied for this job. Hubbard states that she proved she applied for this position with her submission to the court copies of her DFEH charge and her letter to the DFEH correcting some alleged errors in the DFEH complaint form. The letter and her DFEH charge simply establish that Hubbard alleged she applied for this position; the record contains no evidence of Blue Shield’s receipt of the application and the record does not contain Hubbard’s completed application. Allegations do not constitute proof and this record contains no evidence that Blue Shield ever considered or rejected Hubbard for the staffing coordination position.
Even if we presumed Hubbard did apply for the staffing coordination position, she cannot prevail on any claim that her rejection for this position was based on age discrimination. She has provided no information on the job description, the job requirements, and the qualification of the person hired for the position.
Blue Shield acknowledges it received applications from Hubbard for the positions of senior marketing project manager, marketing project coordinator, and contract analyst/administrator. Blue Shield provided evidence that the minimum qualifications for the senior marketing project manager were a bachelor’s degree and three years marketing experience or an equivalent combination of education and experience. The minimum experience required for the marketing project coordinator position was a bachelor’s degree and one year of marketing experience or an equivalent combination of education and experience. It is undisputed that Hubbard did not have a bachelor’s degree or any marketing experience. The individuals hired for the positions possessed a bachelor’s degree and each had more than four years of marketing experience. We therefore conclude that Hubbard has provided no evidence that she was qualified for either of these positions.
The contract analyst/administrator positions required a bachelor’s degree and one year of related experience or training or an equivalent combination of education and experience. Hubbard did not possess a bachelor’s degree and she provided no evidence that she had any experience drafting contracts. The people hired for these positions were Blue Shield employees. One of the people hired had worked as a contract analyst for Blue Shield for approximately four years. The other person hired had a bachelor’s degree, six years of related experience, and had been working for Blue Shield as a temporary employee in the same contract administrator position for more than one year prior to being selected. Again, Hubbard has provided no evidence that she was qualified for these positions or that she was denied these positions because of her age.
The record is devoid of any evidence to support Hubbard’s claim of age discrimination based on Blue Shield’s failure to hire her for the other open positions at Blue Shield.
Hubbard’s entire argument is simply that these jobs did not require the applicant to have a bachelor’s degree when the applicant had the required relevant experience. Hubbard, however, provided no evidence that she had the required relevant experience for any of the open jobs at Blue Shield for which she applied.
III. Violations of Public Policy
Hubbard’s claim that Blue Shield violated public policy must also fail. A common law claim for wrongful termination in violation of public policy fails as a matter of law where the plaintiff is unable to establish a violation of the underlying statute. (See, e.g., Hobson v. Raychem Corp. (1999) 73 Cal.App.4th 614, 632, disapproved on another point in Colmenares v. Braemer Country Club, Inc. (2003) 29 Cal.4th 1019, 1031, fn. 6.) The only public policy alleged by Hubbard is FEHA. Since we have concluded that her claims under FEHA have no merit, this claim must also fail. (See Hobson v. Raychem Corp., supra, at p. 632.)
IV. Punitive Damages
Deliberate discrimination will support an award of punitive damages. (Murillo v. Rite Stuff Foods, Inc. (1998) 65 Cal.App.4th 833, 842.) The plaintiff must demonstrate “clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.” (Civ. Code, § 3294.) In the present case, we have concluded that Blue Shield did not engage in illegal conduct or deliberate discrimination. Accordingly, Hubbard has no claim for punitive damages.
DISPOSITION
The judgment is affirmed. Blue Shield is awarded the costs of appeal.
We concur: Kline, P.J., Richman, J.
When arguing a different point in her brief, Hubbard claims Adjelman testified that she did not need experience with legislation and supported this argument by citing to particular pages in Adjelman’s deposition testimony. The passage cited by Hubbard establishes that Adjelman did acknowledge her lack of experience in interpreting and applying legislation, but she stated that Blue Shield indicated the legislation she would need to analyze “closely related” to her experience. Adjelman’s testimony was as follows: “Q. All right. When you were interviewing for this job, did they tell you that there would be any legal work involved with the job? [¶] A. Yes. [¶] Q. What did they tell you? [¶] A. That there is a very significant piece of legislation that was passed by the California assembly and that it would be a core project for this position that would require analyzing, interpreting legislation and applying it to Blue Shield’s compliance processes.” Hubbard’s counsel then asks for the answer to be read back and the questioning continued. “Q. When you were interviewed, did you tell them that you did not have experience with interpreting and applying legislation? [¶] A. Yes. [¶] What did they say? [¶] A. that I will have the advice of counsel, in-house counsel, and that most importantly the nature of the legislation closely related to my experience.”