Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. GIC852108, Luis R. Vargas, Judge.
McINTYRE, J.
Kathleen Kelly-McCall appeals a judgment entered after the court granted summary judgment in favor of her former employer, The Vons Companies, Inc. and Safeway, Inc. (collectively, Vons), in this action against Vons arising out of her termination from employment. She contends that the court (1) abused its discretion in denying her request for a continuance of the hearing on the motion to permit additional discovery relating to her disability discrimination claim; and (2) erred in granting summary judgment because her evidence was sufficient to raise triable issues of fact regarding whether (a) the stated reason for her termination was pretextual, (b) her termination resulted from discriminatory or retaliatory animus on the part of her supervisors, (c) Vons failed to engage in an interactive discussion with her regarding her disability, (d) Vons failed to reasonably accommodate her disability, (e) Vons took reasonable steps to prevent discrimination and retaliation from occurring and (f) Vons' conduct would support an award of punitive damages. We agree that the court's summary adjudication of Kelly-McCall's retaliation cause of action was in error because Vons' evidence failed to establish the company's entitlement to judgment on that claim as a matter of law and reverse the judgment as to that claim and her request for punitive damages. Otherwise, we agree with the trial court's conclusions that Kelly-McCall's evidence was insufficient to create triable issues of material fact as to her other causes of action and accordingly affirm the judgment in all other respects.
FACTUAL AND PROCEDURAL BACKGROUND
Kelly-McCall began working as a night shift bagger at a Vons' grocery store on El Camino Real in San Diego in July 1986 and three years later, she was promoted to a checker's position. In 1998, Kelly-McCall transferred to a Vons' store in Escondido and, except during a leave of absence relating to her pending divorce from October 1999 to April 2000, she continued to work as a checker, putting in approximately 30 hours a week.
Kelly-McCall began to suffer problems with her right knee as a result of a degenerative condition that required her to avoid climbing stairs unless absolutely necessary. Although the Escondido store's employee break room was upstairs, Kelly-McCall avoided using the stairs by taking her breaks and eating her lunch outside and calling in to get her schedule. She did not submit any medical documentation to Vons regarding her knee condition, although the condition prevented her from going upstairs to check her work mailbox, where Vons' notices and company policies were delivered to her, or the bulletin board, where the policies were posted. She likewise did not request that Vons provide her notice of its policies in some other manner.
Kelly-McCall took a leave of absence in September 2001 to undergo knee surgery and, after an extension of her leave period to permit several additional such surgeries, she returned to work in September 2002. The surgeries left Kelly-McCall unable to straighten her leg, which made it difficult for her to stand for long periods; as a result, store manager Tim Long allowed her to sit in the bag well area of her check register when she was not ringing up customers' groceries. Kelly-McCall continued to have problems using stairs and, as a result, rarely went up to the break room; on those occasions when she did go upstairs, she did not pick up her work-related mail or read the company policies posted there.
One of the policies posted in the break room related to employee use of check-out coupons generated for customers. In accordance with that policy, Catalina coupons (coupons for the purchase of items similar to those a customer previously bought) were to be given to the customer for whom they were generated and, if that customer did not want them, the checker was to tear them up and throw them away. Although Vons was entitled to receive reimbursement for the discounts given for Catalina coupons, it nonetheless disallowed its employees from using coupons generated for a customer. It also maintained a zero tolerance policy for coupon use violations, pursuant to which an offending employee was subject to immediate termination rather than escalating discipline under its progressive discipline system.
Kelly-McCall took another disability leave of absence in November 2002 for a fifth knee surgery, returning to work in April 2003. The surgery allowed Kelly-McCall to completely straighten her leg so, upon her return, she did not need to continue her previous practice of sitting in the bag well area of her check stand when she was not ringing up customers' groceries. She was unable to get full-time work hours at the Escondido store and had to supplement her work schedule by picking up shifts at other Vons' stores.
In June 2003, Kelly-McCall's supervisor, Andrew Dawson, observed her using a customer's Catalina coupon to buy 55 cents worth of candy for herself and reported the incident to Long, who in turn reported it to Vons' loss prevention department. When questioned about the incident by loss prevention specialist Dan Montoya, Kelly-McCall admitted she had used a customer's coupon, but indicated that she had been unaware of the policy since she could not use the stairs and that she had never previously used a customer coupon for herself, but instead thrown away any coupons her customers did not want. Montoya responded to Kelly-McCall's professed ignorance of the Catalina coupon policy by throwing up his arms and saying it was not his problem that her knee issues prevented her from using the stairs. He placed Kelly-McCall on suspension without pay pending further investigation, but did not follow up on Kelly-McCall's report that other employees (who she refused to identify at that time) had also used customer Catalina coupons for themselves.
Kelly-McCall filed a grievance regarding the suspension with her union, which arranged a meeting with Montoya and Vons' labor relations manager, Sue Laret. Kelly-McCall reiterated that she had used the coupon without knowing it was a violation of company policy and that on all prior occasions she had thrown customers' unwanted Catalina coupons away. Montoya expressed skepticism as to whether an "old timer" like Kelly-McCall could have been unaware of the policy, a skepticism that Laret shared. Laret also indicated that Kelly-McCall's statements about lack of knowledge of the policy and no prior violations of it were inconsistent and that the inconsistency suggested Kelly-McCall was lying. Laret and Montoya invited Kelly-McCall to voluntarily quit but Kelly-McCall declined to do so.
Laret subsequently recommended that district manager Richard Winters fire Kelly-McCall, a recommendation that Winters followed in August 2003. The union did not pursue Kelly-McCall's grievance further and Kelly-McCall filed a complaint with the Department of Fair Employment and Housing. After receiving a right to sue letter, Kelly-McCall filed this action against Vons in August 2005 for age discrimination, disability discrimination, failure to accommodate, failure to engage in interactive discussion, failure to prevent discrimination, retaliation and wrongful termination in violation of public policy.
Shortly before the date scheduled for trial, Vons moved for summary judgment or summary adjudication of each of Kelly-McCall's causes of action. It argued in part that Kelly-McCall had never notified it of her disability or requested an accommodation so that she would not have to use the stairs and submitted evidence that one of the duties of its employees was to keep informed of its policies, which were placed in the employee mailboxes and kept in a binder, as well as posted, in its store break rooms. It also introduced evidence that, a week before Kelly-McCall's suspension, Dawson saw a pile of Catalina coupons in her check stand and told her that she needed to destroy and dispose of Catalina coupons that customers did not want. Vons further introduced evidence showing that it had a zero tolerance policy regarding improper Catalina coupon use by employees and had terminated every employee who was caught violating the Catalina coupon policy.
Kelly-McCall opposed the motion. Preliminarily, she requested that the court continue the hearing so that she could obtain certain statistical information from Vons regarding whether any of its terminated employees had disabilities. She also opposed the motion on its merits, submitting evidence that her supervisors knew that she limped and had difficulty going up and down stairs and had accommodated her by allowing her to sit in the check stand area and occasionally bringing items from upstairs to her. She argued that the evidence also showed Vons did not consistently enforce its purported zero tolerance policy regarding coupon misuse and similar violations and that at least three other employees at the Escondido store regularly used customers' Catalina coupons for themselves, but were not terminated for doing so.
Kelly-McCall also submitted evidence that after her September 2001 to September 2002 leave of absence, the store had hired three people who were in their early 20's and 30's to perform a combination of bagger duties and checker duties and that these new hires were given the more desirable day shifts, while the older and more experienced employees were required to work nights. Her declaration further indicated that she had been told by another employee that Long looked unfavorably upon employees who took long-term leaves of absence.
The court denied Kelly-McCall's request for a continuance and granted summary judgment in Vons' favor. It found that although Kelly-McCall had made a prima facie showing in support of her claims, Vons' evidence established a legitimate, nondiscriminatory reason for her discharge and she had not submitted evidence creating a triable issue of fact as to whether that reason was pretextual, whether her supervisors were motivated by discriminatory animus or whether they had retaliated against her for taking leaves of absence.
In particular, the court rejected Kelly-McCall's contention that Vons had not terminated other employees for coupon use infractions or similar improprieties notwithstanding its zero tolerance policy for such conduct, concluding that the evidence was not indicative of any discriminatory animus directed toward her. It also rejected her "claimed unawareness" of the Catalina coupon use policy as "not reasonable" given her tenure with the company, her prior acknowledgement of the zero tolerance approach to employee coupon misuse generally and Vons' publication and posting of its Catalina coupon use policy. Although the court concluded that Vons was on notice of Kelly-McCall's need for accommodations, it also found that her termination resulted from her knowing violation of the Catalina coupon policy rather than Vons' failure to accommodate her by providing notices and policies in a way that did not require her to use the stairs. The court entered judgment in Vons' favor and Kelly-McCall appeals.
DISCUSSION
I. General Principles
Summary judgment is properly granted when there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) Where the defendant is the moving party, it must show that a cause of action has no merit by putting forth evidence that either one or more elements of the cause of action, even if separately pleaded, cannot be established or that a complete defense exists thereto. (Code Civ. Proc., § 437c, subd. (o)(2).) If the defendant meets this burden, the burden shifts to the plaintiff to establish that a triable issue of material fact exists. (Code Civ. Proc., § 437c, subd. (p)(2).)
On appeal, we review de novo the trial court's decision to grant summary judgment. We independently determine whether the record supports the trial court's conclusions that the asserted claims fail as a matter of law, and we are not bound by the trial court's stated reasoning or rationales. (Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 951 (Prilliman).) We must view the evidence submitted in connection with a motion for summary judgment in a light most favorable to the party opposing the motion and resolve "any evidentiary doubts or ambiguities in [her] favor." (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.)
II. Age and Disability Discrimination
Under the Fair Employment and Housing Act (FEHA), it is generally an unlawful employment practice for an employer "to discriminate against [a] person in compensation or in terms, conditions, or privileges of employment" based on that person's age or physical disability. (Gov. Code, § 12940, subd. (a).) There are generally two types of illegal employment discrimination under FEHA: discrimination arising from an employer's intentionally discriminatory act against an employee in a protected group (disparate treatment discrimination) and discrimination resulting from an employer's facially neutral practice or policy that has a disproportionate effect on employees in a protected group (disparate impact discrimination). (E.g., Knight v. Hayward Unified School Dist. (2005) 132 Cal.App.4th 121, 128-129.)
Kelly-McCall's discrimination claims are based on a disparate treatment theory, a prima facie case of which required her to show actions by Vons that, if left unexplained, would at least permit an inference that Vons treated her less favorably than others because of her age or physical disability. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354-355 (Guz).) This showing required evidence that (1) Kelly-McCall was a member of a protected class, (2) she suffered an adverse employment action despite her satisfactory performance of her job, and (3) there were circumstances suggesting that Vons acted with a discriminatory motive. (Ibid. [adopting the test applicable to federal discrimination claims in accordance with McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792].)
To succeed on its motion for summary judgment, Vons was required to show either that (1) Kelly-McCall could not establish one of the foregoing elements or (2) there were one or more legitimate, nondiscriminatory reasons for its decision to terminate her. (See Chin et al., Cal. Practice Guide: Employment Litigation (The Rutter Group 2005) § 19:728, p. 19-81; Guz, supra, 24 Cal.4th at p. 356; Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th 1088, 1097-1098.) If Vons succeeded in showing the former, it would be entitled to judgment on Kelly-McCall's discrimination claims; if Vons' evidence was sufficient to establish the latter, Kelly-McCall could avoid summary adjudication of those claims only by producing evidence creating a triable issue of fact as to whether the articulated reason was pretextual and/or whether Vons acted with a discriminatory animus, such that a reasonable trier of fact could conclude that Vons engaged in intentional discrimination. (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1004-1005 (Hersant).)
1. Denial of a Continuance to Permit Discovery of Evidence to Support Kelly-McCall's Opposition
In accordance with Code of Civil Procedure section 437c, subdivision (h):
"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 to permit affidavits to be obtained or discovery to be had or may make any other order as may be just."
A party seeking a continuance under this statute must thus show there is reason to believe that facts essential to opposing the motion exist, and there are reasons why additional time is needed to obtain those facts. (Ace American Ins. Co. v. Walker (2004) 121 Cal.App.4th 1017, 1023.)
In opposing the motion for summary judgment, Kelly-McCall made a passing request that the court continue the motion hearing so that she could obtain statistical information regarding the ages and disabilities of employees Vons had terminated. The court denied her request on the grounds that she had not shown the statistical information was essential to her opposition, that she had previously attempted to obtain such evidence and that Vons had failed to produce the statistical information available to it. We review the trial court's decision for an abuse of discretion. (Knapp v. Doherty (2004) 123 Cal.App.4th 76, 100.)
Vons preliminarily contends that the statistical information Kelly-McCall sought was neither essential, nor even material, to her discrimination claims. However, in this regard, it is mistaken. Statistical evidence may, in some cases, be relevant to the issue of whether the employer engaged in a pattern or practice of disparate treatment (see, e .g., Heard v. Lockheed Missiles & Space Co. (1996) 44 Cal.App.4th 1735, 1748, citing Teamsters v. United States (1977) 431 U.S. 324, 335-337 & fn. 15 [statistics may aid in showing pattern or practice of discrimination]) or to show that an employer's articulated reason for an adverse employment decision is pretextual. (Obrey v. Johnson (9th Cir. 2005) 400 F.3d 691, 695.)
Despite the potential relevance of the requested information, we nonetheless conclude that the trial court did not abuse its discretion in denying a continuance here. In response to Kelly-McCall's request, Vons presented evidence that it had provided Kelly-McCall with the statistical information regarding the terminated employees' ages, but that it had no similar information available about whether the terminated employees were disabled. Further, Kelly-McCall offered no explanation about why she failed to seek to compel the production of the latter information if she felt that the information was critical to her case. For these reasons, we find that the trial court did not abuse its discretion in denying Kelly-McCall's continuance request.
2. The Discrimination Claims
Kelly-McCall does not challenge the superior court's finding that Vons' evidence established a legitimate, nondiscriminatory reason for her discharge, but contends that her evidence was sufficient to create triable issues of fact as to whether the reason was pretextual and whether her supervisors acted with discriminatory animus.
A. Pretext
Kelly-McCall contends in part that there is a triable issue of fact as to whether Vons' stated reason for her termination was pretextual because the evidence is conflicting on whether she knowingly violated the Catalina coupon policy. However, in order to raise a triable issue of fact regarding whether the proffered reason was untrue or pretextual,
"[i]t is not enough for the employee . . . to raise triable issues of fact concerning whether the employer's reasons for taking the adverse action were sound. . . .[¶] 'The [employee] cannot simply show that the employer's decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent or competent. . . . Rather, the [employee] must demonstrate such weaknesses, implausibilities, inconsistencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them "unworthy of credence" . . . and hence "infer that the employer did not act for . . . [the asserted] non-discriminatory reasons."'" (Hersant, supra, 57 Cal.App.4th at p. 1005, & cases cited therein.)
The fact that the evidence as to what Kelly-McCall knew (and when) was conflicting does not provide a basis from which a reasonable trier of fact could conclude that the stated reason for her termination was a pretext and that the actual reason was discrimination.
Kelly-McCall also points to additional evidence that she believes casts doubt as to the stated reason for her termination. First, she points to her deposition testimony that at least three other employees regularly used customers' Catalina coupons for themselves and that she reported this to Montoya at the meeting where he suspended her, but that Vons did not investigate her report other than by asking her to identify who those other employees were (which she repeatedly declined to do). Second, she relies on evidence that Vons did not always terminate employees for similar misconduct despite its zero tolerance policy providing for such a penalty.
Given that Kelly-McCall refused to identify for Montoya or Laret the other Vons' employees who had allegedly violated the Catalina coupon policy, the fact that Vons did not undertake an investigation of all its store employees does not create a triable issue of fact as to whether Vons consistently enforced that policy by terminating the offending employees. Further, Kelly-McCall's evidence (produced for the first time in the proceedings below) that three specific employees had consistently violated the policy but were never investigated or terminated for doing so is likewise insufficient to create a triable issue of fact as to whether Vons' stated reason for terminating Kelly-McCall was pretextual, given the absence of any evidence that any of Vons' store managers knew of those violations. Thus, Kelly-McCall's evidence does not create a triable issue of fact on pretext.
B. Discriminatory Animus
When an adverse employment decision is influenced by several people, the plaintiff may substantiate her claim of discrimination by showing that any of those persons held the requisite animus and that that animus was a "but-for" cause of the decision, i.e., a force without which the decision would not have been made. (Clark v. Claremont University Center (1992) 6 Cal.App.4th 639, 665-666; see Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 108-116 (Reeves).) For this reason, the fact that the actual decisionmaker acted based on nondiscriminatory reasons will not be fatal to the affected employee's claims of discrimination if the employee can show that the decisionmaker was an unintentional "instrumentality or conduit" for others who acted with discriminatory animus. (Reeves, supra, 121 Cal.App.4th at p. 108; see also Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 421; Shager v. Upjohn Co. (7th Cir. 1990) 913 F.2d 398, 405.)
i. Discriminatory Animus Based on Age
Kelly-McCall argues that the evidence she submitted in opposition to the motion for summary judgment showed that Vons essentially rewarded its store managers and assistant store managers who fired or shortened the hours of older, more highly paid employees by tying their bonuses to their store's financial performance. However, her characterization of this evidence is inaccurate; while the evidence showed that a manager might be penalized for exceeding his or her store's labor budget, it did not in any way establish how store budgets were set, that the effect of how the budgets were set encouraged the practice that Kelly-McCall posits to have existed or that such an effect actually occurred at the store where she worked.
Further, Kelly-McCall's deposition testimony that Vons hired three younger bagger/checkers during her last leave of absence and that those employees (who had different responsibilities than she did and apparently were not as highly paid as she was) were given more favorable daytime shifts likewise fails to create a triable issue of fact as to whether her termination was based on discriminatory animus. In this regard, although the record shows that Kelly-McCall obtained statistical information regarding the ages of other Vons' employees who had been terminated by the company, she submitted no evidence to substantiate the claim in her opening brief that "store managers frequently made decisions based upon the age and salary of older employees, systematically terminating the employment of older workers, and replacing them with younger, less expensive workers."
The trial court correctly concluded that Kelly-McCall's evidence was insufficient to create a triable issue of fact as to whether her termination resulted from a discriminatory animus based on her age. Accordingly, the court's decision summarily adjudicating Kelly-McCall's first cause of action for age discrimination in Vons' favor was proper.
ii. Discriminatory Animus Based on Disability
Kelly-McCall raises two separate arguments regarding the evidence of discriminatory animus based on her disability. First, she contends that Vons had a corporate culture of discrimination against disabled persons, as reflected by its Accommodation Guidelines, which specified in part that the company did not provide a modified work program for a temporary condition that was caused by a non-work related injury. However, even if we assume, without deciding, that Vons' Accommodation Guidelines are inconsistent with the company's obligation to provide reasonable accommodations to its temporarily-disabled employees, the guidelines do not establish a company bias against disabled employees. Further, any such inconsistency has no relevance here since Kelly-McCall never requested, or was denied, a reduced work schedule from Vons as a result of her disability; in fact, one of Kelly-McCall's objections in this action is that Vons gave her too few hours, rather than too many, after her return from her last disability leave. Under these circumstances, Vons' Accommodation Guidelines do not create a triable issue of fact as to whether Kelly-McCall's termination resulted from a corporate discriminatory animus against disabled employees.
Kelly-McCall's second argument is that her evidence nonetheless creates a triable issue of fact as to whether her termination resulted from discriminatory animus on the part of her supervisors. She relies on evidence that despite her obvious difficulties standing for long periods, walking and using stairs, Dawson occasionally got frustrated with her and made snide comments to other employees about the fact that she sat down in the bag well area of her check stand to rest her knee when she was not tending to customers and that Long also expressed similar dissatisfaction with that practice.
We conclude that Kelly-McCall's reliance on this evidence is misplaced. The occasional comments about Kelly-McCall's sitting in the bagwell were only indirectly related to Kelly-McCall's disability and thus ambiguous as to the existence of discriminatory animus. (See Gagne v. Northwestern Nat. Ins. Co. (6th Cir. 1989) 881 F.2d 309, 314-316 [holding that an isolated remark by plaintiff's immediate supervisor that he "needed younger blood" was insufficient to avoid summary judgment on plaintiff's age discrimination claim].) Further, in light of the evidence that Kelly-McCall discontinued sitting in the bagwell after she returned from her final leave of absence, those comments were necessarily made well prior to the incident that resulted in her termination and were thus too remote to permit "a rational inference that [her termination resulted from] intentional discrimination . . . ." (See Guz, supra, 24 Cal.4th at pp. 357, 362 [noting that a plaintiff opposing summary judgment on discrimination claims must present evidence "plac[ing the defendant's] creditable and sufficient showing of innocent motive in material dispute by raising a triable issue, i.e., a permissible inference, that, in fact, [the defendant] acted for discriminatory purposes"].)
For the foregoing reasons, we conclude that the trial court properly granted summary adjudication of Kelly-McCall's second cause of action for disability discrimination.
3. Failure to Accommodate/Failure to Engage in an Interactive Discussion
FEHA also makes it an unlawful employment practice for an employer to fail to make reasonable accommodations for known physical disabilities of its employees. (Gov. Code, § 12940, subd. (m).) Once the employer becomes aware that one of its employees has a disability, it must take reasonable steps to accommodate that employee's limitations. (Gov. Code, § 12940, subd. (m) [requiring an employer to make reasonable accommodations for "the known physical . . . disability of an . . . employee"]; compare subd. (n) [requiring an employer to engage in an interactive process "in response to a request for reasonable accommodation"]; see generally Cal. Code Regs., tit. 2, § 7293.9 [recognizing that the requirement of reasonable accommodations does not require the employer to take steps that would cause "undue hardship"].) Such steps may include making existing facilities readily accessible and usable by the employee. (Cal. Code Regs., tit. 2, § 7293.9, subd. (a).)
The requirement of reasonable accommodations is described as one that envisions an interactive process in which both the employer and the employee participate. (Prilliman, supra, 53 Cal.App.4th at p. 950.) The employee need not use any particular magic words (such as a specific reference to the FEHA or the need for an "accommodation") to trigger the employer's obligation to provide an accommodation; in fact, it is sufficient that the employer becomes aware of an employee's disability, regardless of whether that awareness comes from the employee or some other source. (Gov. Code, § 12940, subd. (m); generally Chin et al., Cal. Practice Guide: Employment Litigation (The Rutter Group 2007) § 19:1244, p. 9-109, & cases cited therein.) However, the employee has a concomitant duty to facilitate her employer's efforts to comply with its obligations and must provide information to it regarding her disability and needs; she cannot "expect the employer to read [her] mind and know [that she] secretly wanted a particular accommodation and [then] sue the employer for not providing it." (Prilliman, supra, 53 Cal.App.4th at p. 954, quoting Schmidt v. Safeway, Inc. (D.Or. 1994) 864 F.Supp. 991, 997.)
Here, the evidence showed that, prior to her final leave of absence, Kelly-McCall's supervisors were aware that she had difficulty walking, standing and using stairs and allowed her to sit down in the bag well area of her checking station and accommodated her by occasionally bringing food or other items to her from upstairs. The evidence also showed, however, that at no time did Kelly-McCall request an accommodation and in fact, in her own deposition, she testified that, after she returned from her last leave of absence, she did not need any accommodation to do her job. In light of this evidence, summary adjudication of Kelly-McCall's third cause of action for failure to provide reasonable accommodations was proper.
As noted above, Kelly-McCall has also asserted a claim for failure to engage in interactive discussions. However, because she never made a request for reasonable accommodations from Vons, she cannot establish this statutory element of such a cause of action. (Gov. Code, § 12940, subd. (n) [requiring an employer to engage in an interactive process "in response to a request for a reasonable accommodation"].) For this reason, summary adjudication of this cause of action in Vons' favor was also proper.
III. Retaliation
Government Code section 12940, subdivision (h), makes it unlawful for any employer or person "to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part." As is the case with a discrimination claim, a plaintiff establishes a prima facie case of retaliation by showing that she engaged in a protected activity, that her employer subjected her to an adverse employment action and that there is a causal link between the protected activity and the adverse action. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042; generally Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1455.) Further, where the employer offers a legitimate, nonretaliatory reason for the adverse employment action, the employee then has the burden of presenting evidence sufficient to support an inference of intentional retaliation. (Yanowitz, supra, 36 Cal.4th at p. 1042.)
Kelly-McCall's retaliation cause of action alleges that Vons cut back her hours, gave her less favorable shifts and ultimately terminated her because she took a disability leave of absence under the California Family Rights Act (the Act) from September 2001 to September 2002. In its motion for summary judgment, Vons contended that Kelly-McCall's retaliation claim lacked merit because the evidence showed that her 2001/2002 leave of absence was taken pursuant to the Act and because it had a legitimate business reason for terminating her. The superior court found that there was a triable issue of fact as to the former, a finding that Vons does not challenge herein. Rather, Vons reiterates its contention that its showing of a legitimate nondiscriminatory reason for Kelly-McCall's termination provided justification for the granting of summary adjudication as to this cause of action.
This argument, however, does not support Vons' entitlement to summary adjudication of this cause of action because Vons did not also offer any legitimate, nondiscriminatory reasons for the reduction in Kelly-McCall's hours or her assignment to less desirable shifts upon her return from the September 2001 to September 2002 leave. Because Vons' evidence on this point was not sufficient to establish its entitlement to judgment as a matter of law, the trial court erred in granting summary adjudication of Kelly-McCall's sixth cause of action for retaliation.
IV. Failure to Prevent Discrimination
Pursuant to Government Code section 12940, subdivision (k), it is an unlawful employment practice for an employer "to fail to take all reasonable steps necessary to prevent discrimination . . . from occurring." Vons correctly points out that the trial court's summary adjudication of this cause of action was proper because, as alleged in her complaint, the claim is completely derivative of her discrimination claims. Because those discrimination claims fail as discussed further above, the failure to prevent a discrimination claim must also. (See Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 289 [agreeing with the trial court's observation that an employee who has not been discriminated against cannot sue an employer under FEHA for failing to prevent discrimination that did not happen].)
V. Wrongful Termination in Violation of Public Policy
An employer may discharge an at-will employee "for no reason, or for an arbitrary or irrational reason," but is precluded from doing so "for an unlawful reason or a purpose that contravenes fundamental public policy." (Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1094, clarified by Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66.) A discharge is actionable as against public policy if it violates a policy that is: "(1) delineated in either constitutional or statutory provisions; (2) 'public' in the sense that it 'inures to the benefit of the public' rather than serving merely the interests of the individual; (3) well established at the time of the discharge; and (4) 'substantial' and 'fundamental.'" (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 901-902.)
Vons argues on appeal, as it did below, that because it established its entitlement to summary adjudication of Kelly-McCall's age and disability discrimination claims under FEHA, it was also entitled to summary adjudication of her wrongful termination cause of action. Its argument is well taken.
VI. Punitive Damages
The trial court summarily adjudicated Kelly-McCall's request for punitive damages on the ground that her request could not stand "absent an underlying claim[.]" Because Kelly-McCall's retaliation claim still remains, we reverse the judgment insofar as it adjudicated the punitive damage request in Vons' favor.
DISPOSITION
The judgment is reversed insofar as the superior court summarily adjudicated Kelly-McCall's sixth cause of action for retaliation and her request for punitive damages. In all other respects, the judgment is affirmed. Each party is to bear its own costs on appeal.
WE CONCUR: McCONNELL, P.J., HUFFMAN, J.