Opinion
E073239
02-23-2021
BERNADETTE LOPEZ, Plaintiff and Appellant, v. KAISER FOUNDATION HOSPITALS et al., Defendants and Respondents.
The Mirroknian Law Firm, Reza Mirroknian and Nicholas Yasman for Plaintiff and Appellant. Foster Employment Law and Michael E. Wilbur for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. CIVDS1705935) OPINION APPEAL from the Superior Court of San Bernardino County. Michael A. Sachs, Judge. Affirmed. The Mirroknian Law Firm, Reza Mirroknian and Nicholas Yasman for Plaintiff and Appellant. Foster Employment Law and Michael E. Wilbur for Defendants and Respondents.
After being terminated from her employment, Bernadette Lopez sued her former employer Southern California Permanente Medical Group (Permanente Medical Group) and various allegedly affiliated entities, alleging that she was discriminated against under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) on the basis of her age and disability and that she was retaliated against for engaging in protected activities. Lopez appeals from the summary judgment entered in favor of defendants. We affirm.
BACKGROUND
A. Lopez's Employment with Permanente Medical Group
Permanente Medical Group contracts with Kaiser Foundation Health Plan, Inc. (Kaiser Health Plan) to provide Kaiser Health Plan's southern California members with various medical services. Kaiser Health Plan provides certain administrative services to Permanente Medical Group, including human resources consulting and claims processing. Permanente Medical Group retains exclusive decision-making authority over the hiring and firing of its employees.
Lopez began working for Permanente Medical Group in 1977. Lopez initially worked as a receptionist, then at some point began working as a medical assistant, and in 2015 was working as a medical assistant II.
In Lopez's declaration, she states that she "began working for Defendants Kaiser" in 1977. She did not dispute for purposes of the motion that she was employed by Permanente Medical Group. For simplicity's sake, we therefore refer to Lopez's employer as Permanente Medical Group.
At some unspecified points during Lopez's employment, she applied for two different positions for which she was qualified. After Lopez applied for the positions, Sarah White, Lopez's direct supervisor, told Lopez that the positions were no longer available, and White did not provide any explanation about why they were closed. Lopez believed that the positions were closed to avoid giving her the positions because Permanente Medical Group wanted to discourage her from continuing her employment and force her into retirement.
In 2005, 2009, 2011, and 2013, Lopez took leaves of absence from work for various reasons. In March 2014, Lopez took a medical leave of absence. In a report submitted to Permanente Medical Group that month, Lopez was reported as being diagnosed with "major depression, recurrent, moderate panic disorder wo [sic] agoraphobia, occupational problems or work circumstances, parent child relationship problem." (Capitalization omitted.) The leave of absence was extended through 2015. B. Investigation and Termination
In October 2014, John Escobar, the father of Lopez's minor grandson, Jonathan Escobar, called a Kaiser Health Plan hotline to report that Lopez listed Jonathan as a dependent on her health insurance plan even though her guardianship of Jonathan had terminated in 2011. Marguerite Allington, a human resources investigative consultant, was assigned to investigate the complaint. Allington enlisted Cynthia Becerra, the operations director of member services, to assist in the investigation because Becerra had access to a database that could confirm whether Lopez listed Jonathan as a dependent.
Because Jonathan and John have the same last name, we refer to them by their first names only. No disrespect is intended.
In investigating the complaint, Becerra spoke with John and John's mother (Jonathan's paternal grandmother). They explained to Becerra that John had obtained custody of Jonathan and was unable to enroll Jonathan in a health insurance plan because Jonathan was enrolled in Lopez's plan. Becerra accessed Lopez's member records and confirmed by "looking at [her] eligibility screen" that Jonathan was listed as a dependent on Lopez's health insurance plan in late 2014. In a declaration filed in support of her opposition to the motion, Lopez claims without evidentiary support that Jonathan was not listed as a dependent on her "benefits plan" when she was terminated. Becerra reported her findings to Allington.
In January 2015, Becerra faxed Allington numerous court records she had obtained regarding Jonathan. Those records confirmed that a legal guardianship of Jonathan was terminated on January 28, 2011. The legal guardian's name was not listed in the court record. (Lopez does not dispute that she had legal guardianship of Jonathan from 2007 to January 2011.) The records also included a March 2014 court order awarding John sole legal and physical custody of Jonathan.
In January 2015, Allington prepared a report summarizing the hotline complaint and the investigation. She concluded that John's complaint had been substantiated. In February 2015, Allington emailed Dave Brown, a senior human resources consultant with Kaiser Health Plan, and explained to Brown that she did not interview Lopez about Jonathan's enrollment on the health insurance plan because the conduct had been substantiated via documentation. Allington elaborated: "Typically, in cases like this, or in cases where computer forensics show a violation of electronics usage policy, I let the documentary evidence stand as proof."
On March 24, 2015, Lopez returned to work from her leave of absence. One week later, White met with Lopez and a union representative and informed Lopez that she was being terminated due to "maintain[ing] an ineligible family member as a dependent on your employer-paid benefit plan" "for years after losing eligibility" "in violation of the Kaiser Permanente Dependent Eligibility rules." Those rules dictated that health insurance dependents were required to be removed within 31 days of becoming ineligible. Lopez was 56 years old when she was terminated.
According to Lopez, she told White in that meeting that she had previously deleted Jonathan from her insurance, so he was no longer listed as her dependent. According to Irene Ruiz, a human resources director employed by Kaiser Health Plan, who was involved in the decision to terminate Lopez, Lopez produced in a posttermination grievance meeting a copy of a signed form that she claims to have faxed to the human resources department to delete Jonathan as a dependent. The form is dated February 15, 2011, and signed by Lopez. Handwritten on the top of the form along with a handwritten telephone number is "faxed to HR 02-15-2011." C. Permanente Medical Group's Disciplinary Policy
Permanente Medical Group has a "Corrective/Disciplinary Action" policy that provides a progressive list of disciplinary actions the employer "may" take "to address concerns related to an employee's work performance or conduct." Those actions start with a discussion with the employee and end with termination. The policy further provides that "[n]one of these actions are mandatory or a prerequisite for any other actions that may be appropriate based on the circumstances." The policy specifically dictates that "certain employee conduct may be deemed sufficiently serious to warrant immediate termination" without imposition of any lesser disciplinary action beforehand. Management is responsible for determining the appropriate disciplinary action "after review of the facts (including legal, compliance or policy violations)," applicable collective bargaining agreement provisions, and "consideration of other relevant factors and circumstances including, but not necessarily limited to, the factors in section 5.5 below." The nonexhaustive factors set forth in section 5.5 include "the severity of the violation," the employee's past performance and length of employment, and "whether the violation was intentional or negligent." Whenever a corrective action is taken, that action "will be documented to indicate the reason for the action and what specific action was taken." D. The Litigation
In 2017, Lopez filed an amended complaint against Permanente Medical Group, Kaiser Health Plan, and various other allegedly affiliated entities, alleging discrimination on the basis of age and disability, failure to engage in the interactive process, failure to provide reasonable accommodation, retaliation under FEHA for Lopez opposing Permanente Medical Group's failure to provide her a reasonable accommodation, retaliation under the California Family Rights Act (CFRA) (Gov. Code, § 12945.1 et seq.), failure to take necessary reasonable steps to prevent discrimination, wrongful termination, and intentional infliction of emotional distress.
Defendants moved for summary judgment or in the alternative summary adjudication. Lopez objected to some of the evidence submitted by defendants. The trial court granted summary judgment in favor of defendants and sustained some of Lopez's evidentiary objections.
The trial court concluded that Lopez failed to establish a prima facie case of age discrimination. With respect to Lopez's disability discrimination claim, the trial court concluded that Lopez did not carry her burden of producing "'substantial responsive evidence'" demonstrating that the legitimate stated reason for Lopez's termination was pretextual or that defendants acted with discriminatory animus. As to Lopez's retaliation claim under FEHA, the trial court concluded that Lopez failed to establish a prima facie case of retaliation because she failed to produce any evidence demonstrating a causal connection between the alleged protected activity and the termination. The trial court concluded that the claim for failure to provide a reasonable accommodation failed because Lopez had not supported it with any allegations, material facts, or evidence.
STANDARD OF REVIEW
The trial court may grant summary judgment if there is no triable issue of material fact and the issues raised by the pleadings may be decided as a matter of law. (Code Civ. Proc., § 437c, subds. (c), (f)(2); Biancalana v. T.D. Service Co. (2013) 56 Cal.4th 807, 813.) A moving defendant must show that one or more elements of the challenged cause of action cannot be established or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849 (Aguilar).)
Once the moving defendant has carried its initial burden, the burden shifts to the plaintiff to show a triable issue of material fact with respect to the cause of action or defense. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at p. 849.) The court must consider all of the evidence and the reasonable inferences from it in the light most favorable to the nonmoving party. (Aguilar, at p. 843.) "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." (Id. at p. 850.)
We review summary judgment orders de novo and apply the same legal standard as the trial court. (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460.) We are not bound by the trial court's stated reasons, if any, and instead independently evaluate whether the record supports the trial court's conclusion. (Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 951 (Prilliman).)
DISCUSSION
Lopez challenges only the trial court's rulings on her age and disability discrimination claims and on her retaliation claim under FEHA. "'Although our review of a summary judgment is de novo, it is limited to issues which have been adequately raised and supported in plaintiff['s] brief.'" (Laabs v. Southern California Edison Co. (2009) 175 Cal.App.4th 1260, 1271, fn. 5.) We therefore do not address any causes of action as to which Lopez raises no arguments. A. Age and Disability Discrimination Claims
Lopez contends that the trial court erred by granting summary judgment in favor of Permanente Medical Group on her age and disability discrimination claims under FEHA. Her contentions lack merit.
FEHA prohibits an employer from terminating an employee on the basis of age or disability. (Gov. Code, § 12940, subd. (a); further unlabeled statutory citations are to this code.) We assume for the sake of argument that Lopez was disabled within the meaning of FEHA and that she established a prima facie case of discrimination on the basis of her age and disability. In a summary judgment motion in an employment discrimination case based on age or disability, "'the employer, as the moving party, has the initial burden to present admissible evidence showing either that one or more elements of [the] plaintiff's prima facie case is lacking or that the adverse employment action was based upon legitimate, nondiscriminatory factors.'" (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 861 (Serri); Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354-355; McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802-803 (McDonnell Douglas); Wills v. Superior Court (2011) 195 Cal.App.4th 143, 159-160.) If "'nondiscriminatory, [the employer's] true reasons need not necessarily have been wise or correct. [Citations.] While the objective soundness of an employer's proffered reasons supports their credibility . . . , the ultimate issue is simply whether the employer acted with a motive to discriminate illegally. Thus, "legitimate" reasons [citation] in this context are reasons that are facially unrelated to prohibited bias, and which, if true, would thus preclude a finding of discrimination.'" (Serri, supra, at p. 861, italics omitted.) "If the employer meets its initial burden, the burden shifts to the employee to 'demonstrate a triable issue by producing substantial evidence that the employer's stated reasons were untrue or pretextual, or that the employer acted with a discriminatory animus, such that a reasonable trier of fact could conclude that the employer engaged in intentional discrimination or other unlawful action.'" (Ibid., italics omitted.) An issue of fact is created by a conflict in the evidence and not by speculation or conjecture. (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 807 (Horn).) "The employee must do more than raise an issue whether the employer's action was unfair, unsound, wrong or mistaken, because the overriding issue is whether discriminatory animus motivated the employer." (Johnson v. United Cerebral Palsy/Spastic Children's Foundation (2009) 173 Cal.App.4th 740, 755 (Johnson).) "'It is the employer's honest belief in the stated reasons for firing an employee and not the objective truth or falsity of the underlying facts that is at issue in a discrimination case.'" (Id. at p. 757.)
Lopez contends that Permanente Medical Group failed to set forth competent, admissible evidence of legitimate, nondiscriminatory reasons for terminating her. Lopez's argument is based on the trial court's evidentiary rulings sustaining her objections to various portions of the declarations of Allington and Becerra. Without that evidence, she claims, Permanente Medical Group did not provide "sufficient evidence to show that [it] terminated [her] for a neutral, non-discriminatory reason." The argument fails because it ignores the remainder of the evidence submitted by Permanente Medical Group, which the trial court properly considered. Because the evidence properly considered by the trial court is sufficient, we need not and do not consider Permanente Medical Group's challenges to the evidentiary rulings, because any error would be harmless. (Serri, supra, 226 Cal.App.4th at pp. 857-858.)
Allington testified that she was assigned to investigate whether Lopez improperly listed her grandson as a dependent for health insurance after a complaint was received on a company hotline. In that testimony, she identified the initial email she received about the complaint, which was submitted as an exhibit in support of the summary judgment motion. Allington also testified that she enlisted Becerra to assist in the investigation. Becerra testified that she spoke with John and his mother regarding the hotline complaint and learned that John had custody of Jonathan but could not enroll Jonathan for health insurance because he was listed as a dependent by Lopez. Becerra testified that she confirmed on the "eligibility screen" that Jonathan was listed as Lopez's dependent, and Becerra reiterated in her declaration that she "confirmed by accessing member records that [Jonathan] was still listed as a dependent on [Lopez's] Kaiser coverage in late 2014." Despite the admissible evidence that Becerra confirmed that Jonathan was listed as a dependent on Lopez's health insurance plan in 2014, Lopez claims that Permanente Medical Group has not produced any evidence demonstrating that Jonathan was listed as a dependent on her health insurance plan. To the extent that Lopez's challenge is that Permanente Medical Group did not submit a copy of the records showing Jonathan listed as a dependent, such direct evidence was not necessary. The circumstantial evidence provided by Becerra was sufficient for Permanente Medical Group to establish the fact that Lopez listed Jonathan as a dependent on her health insurance plan in 2014.
In the trial court, Lopez objected to Becerra's statement in her declaration about confirming Jonathan's eligibility. But the trial court overruled that objection, and Lopez does not challenge that ruling on appeal.
In addition to submitting evidence that Lopez listed Jonathan as a dependent in 2014, Allington stated in her declaration that in 2015, Becerra faxed her copies of court records Becerra obtained in conducting her investigation. Copies of those records were submitted in support of the summary judgment motion and demonstrate that legal guardianship of Jonathan was terminated in 2011 and that John was awarded sole legal and physical custody of Jonathan in March 2014. Based on the investigation, Allington concluded that the hotline complaint was substantiated. A copy of Allington's investigatory report was submitted in support of the summary judgment motion. Lopez was told that she was terminated for maintaining Jonathan as a dependent on her health insurance plan in violation of company rules.
Given all of that evidence, we conclude that Permanente Medical Group carried its burden of demonstrating that it terminated Lopez for a legitimate, nondiscriminatory reason—namely, that Lopez listed her grandson as a dependent on her employer-provided health insurance plan in 2014 even though Lopez was no longer his legal guardian and in violation of Permanente Medical Group's policy. The burden shifted to Lopez to demonstrate through substantial evidence that the stated reason was untrue or pretextual or that Permanente Medical Group acted with discriminatory animus. (Horn, supra, 72 Cal.App.4th at p. 807.)
Lopez maintains that a reasonable juror could find Permanente Medical Group's stated reason for terminating her pretextual on the basis of the following evidence: (1) Permanente Medical Group purportedly failed to follow their own polices regarding investigating employee wrongdoing, in particular by not interviewing Lopez; (2) the investigation was purportedly inadequate and a sham; (3) Permanente Medical Group purportedly failed to follow its own policy of imposing a lesser form of discipline before terminating Lopez; (4) the timing of the termination in relation to Lopez's return to work from her last medical leave of absence; (5) Permanente Medical Group's alleged "efforts to force [Lopez] to retire"; (6) Lopez's receipt of a higher rate of pay than other employees based on her seniority; (7) Lopez's purportedly positive performance evaluations throughout her employment and lack of any negative evaluations; and (8) Permanente Medical Group's closure of two openings for new positions after Lopez applied for them. None of the evidence presented by Lopez, considered separately or together, negates the evidence submitted by Permanente Medical Group demonstrating that it had a good faith, nondiscriminatory reason for terminating Lopez.
Lopez claims that Permanente Medical Group violated two policies in the way it conducted its investigation of the complaint against her and in how it terminated her—the Corrective/Disciplinary Action policy and a collective bargaining agreement. Those claims are not supported by the evidence. Permanente Medical Group's Corrective/Disciplinary Action policy explicitly did not require Permanente Medical Group to conduct any particular form of investigation before terminating Lopez. Contrary to Lopez's interpretation of the policy, nowhere does the policy explicitly state that Permanente Medical Group was required to interview Lopez before terminating her. Nor does it mandate, as Lopez suggests, that Permanente Medical Group was required to impose some lesser disciplinary action before termination. Rather, the policy expressly grants management the discretion to choose the appropriate level of discipline, including termination without any prior discipline, based on the relevant facts and circumstances. Any conduct management deems "sufficiently serious" may "warrant immediate termination or escalated disciplinary action without prior corrective/disciplinary action."
Lopez maintains that the policy set forth a list of factors that management was required to consider before terminating her and that the list of factors somehow implied that the employer was required to interview the employee "under investigation if only to determine what level of discipline to apply" and to determine if the misconduct was intentional. First, the policy does not dictate that management must consider all or any of the listed factors. The policy specifically states that the listed factors are only "[e]xamples of factors to be considered in determining the level of corrective/disciplinary action" imposed. Second, because Permanente Medical Group was not required to consider any of the listed factors, it follows that nothing about those factors gave rise to an implicit requirement that Permanente Medical Group interview the employee as part of the factfinding process.
There is no evidence that Permanente Medical Group did not follow the Corrective/Disciplinary Action policy. The evidence shows, to the contrary, that Permanente Medical Group engaged in a sufficient investigation to reveal the pertinent facts that Permanente Medical Group determined were serious enough to warrant Lopez's termination: (1) Lopez's legal guardianship of Jonathan ended in 2011, rendering him ineligible to be listed as a dependent on her health insurance plan; and (2) Lopez continued to list Jonathan as a dependent on her health insurance plan in 2014 in violation of company rules. Those facts were confirmed through interviews with Jonathan's father and paternal grandmother, court documents verifying the grandson's custody, and an internal company database showing that Jonathan was listed as a dependent on Lopez's health insurance plan in 2014. No further investigation was needed to ascertain those facts, nor did Permanente Medical Group's policy dictate that any further investigation was required.
There similarly is not any evidence that Permanente Medical Group violated any "joint discovery" process mandated by a collective bargaining agreement. Lopez claims that the agreement required the investigation into her conduct "to be conducted hand-in-hand with the employee's representative in a non-punitive 'joint discovery' process to reach a resolution." The only evidence proffered about the agreement's "joint discovery" process was provided in Ruiz's deposition testimony. Ruiz was asked about her understanding of the investigatory process set forth in the collective bargaining agreement applicable to medical assistants, and she responded that it required "joint discovery" with the union. Ruiz explained that "joint discovery" meant that information acquired during an investigation into an employee's conduct was to be shared with the union after the investigation was concluded, and investigations are conducted without any participation by the union.
None of the other citations listed in support of this factual assertion in Lopez's separate statement of facts is about the "joint discovery process."
Assuming for the sake of argument that Lopez was a represented employee covered by that agreement (there is no evidence that she was), there is no evidence that Permanente Medical Group violated the policy in any way. First, nothing in Ruiz's testimony supports Lopez's claim that the investigation was supposed to be conducted with the union in a hand-in-hand or nonpunitive way. As explained by Ruiz, any investigation was to be undertaken without union participation, which was done here. Second, nothing about the agreement's joint discovery process, as described by Ruiz, required Permanente Medical Group to interview Ruiz as part of its investigation or to contact the union before completion of the investigation. Third, there is no evidence that Permanente Medical Group violated the policy by failing to contact the union after the completion of the investigation. The only evidence regarding the union's involvement was that a union representative was present when Lopez was terminated.
Relying on Cotran v. Rollins Hudig Hall Internat., Inc. (1998) 17 Cal.4th 93 and Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, Lopez argues for the first time on appeal that Permanente Medical Group was "obligated to conduct a reasonable and impartial investigation appropriate to the circumstances" and to "act in good faith and fairly listen to both sides." Lopez did not advance that argument in the trial court, so we consider it forfeited and do not consider it for the first time on appeal. (Jimenez v. 24 Hour Fitness USA, Inc. (2015) 237 Cal.App.4th 546, 567 (Jimenez); Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 355 (Arteaga).)
Because there is no evidence that Permanente Medical Group violated the Corrective/Disciplinary Action policy or the collective bargaining agreement in the manner in which the investigation was conducted or in terminating Lopez, all of the cases Lopez cites in which an employer's failure to investigate or failure to follow its own policies raised a reasonable inference of an employer's discriminatory intent or of pretext are inapposite. (See Cheal v. El Camino Hospital (2014) 223 Cal.App.4th 736, 743-744; Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 241 (Moore); Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 280.)
There also is no evidence supporting Lopez's claim that the investigation conducted was a "sham" investigation with a predetermined outcome. As we have explained, there was sufficient evidence that the investigation was initiated as a result of John's call to the company's hotline to report Lopez's misconduct. Because Permanente Medical Group did not initiate the investigation, it is reasonable to infer that it did not have any particular outcome in mind when it undertook the investigation. There is no evidence supporting a contrary inference. Instead, Permanente Medical Group sought and discovered documentary evidence establishing that Lopez listed Jonathan as a dependent on her health insurance plan after she stopped serving as his legal guardian.
Lopez's evidence that she purportedly removed Jonathan as a dependent in 2011 likewise does not support a reasonable inference of pretext or discriminatory intent. Assuming that in 2011 Lopez faxed a copy of the form to human resources to remove Jonathan as a dependent, and thus that Lopez believed that he was no longer listed as her dependent, that evidence does not raise a reasonable inference that when Permanente Medical Group terminated Lopez it did not honestly believe she wrongfully listed Jonathan as a dependent. The evidence only raises an issue as to whether Permanente Medical Group's "action was unsound, unfair, wrong or mistaken." (Johnson, supra, 173 Cal.App.4th at p. 756.) But "'[i]t is the employer's honest belief in the stated reasons for firing an employee and not the objective truth or falsity of the underlying facts that is at issue in a discrimination case.'" (Id. at p. 757.) Regardless of whether Permanente Medical Group's reason for terminating Lopez was factually mistaken, the evidence of Lopez faxing the form to remove Jonathan as a dependent does nothing to show that Permanente Medical Group did not honestly believe in the stated reason for firing Lopez when it did. Thus, regardless of the advisability of interviewing Lopez and what information possibly could have been discovered in such an interview, Lopez fails to carry her burden of demonstrating that Permanente Medical Group's failure to conduct such an interview raises a reasonable inference that Permanente Medical Group's proffered reason for terminating Lopez was pretextual.
Lopez next asks us to infer pretext from the fact that she was terminated seven days after she returned from a medical leave of absence. In some circumstances, pretext may be inferred from the timing of an adverse employment action. (Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 594; Arteaga, supra, 163 Cal.App.4th at p. 353.) Here, the investigation was conducted while Lopez was on a leave of absence because that is when John called the hotline to complain about Lopez's conduct. There is no evidence suggesting that anything other than the timing of John's complaint motivated the investigation. It follows that the timing of Lopez's termination followed the conclusion of that investigation, which also happened while she was out on medical leave. The temporal proximity of Lopez's termination to her return from her leave of absence therefore does not raise a reasonable inference that the stated reason for Lopez's termination was pretextual or motivated by discriminatory animus. (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 436.)
Lopez's evidence of Permanente Medical Group's alleged "efforts to force [Lopez] to retire" likewise does not support a reasonable inference of pretext or discriminatory animus. The only evidence of the alleged conduct is Lopez's statement that at some point she applied for two positions for which she says she was qualified and which were closed after she applied. No one explained to Lopez why the positions were closed. But she believes that the positions were closed because Permanente Medical Group wanted her to retire and to discourage her from continuing her employment. That evidence is not sufficient to create a triable issue of fact as to pretext. First, there is no evidence showing when Lopez applied for those positions or when they were closed. It therefore is not possible to infer any relevance or causal connection to Lopez's termination. Second, there is no evidence about what motivated the closure of those positions or Permanente Medical Group's general practices in closing positions after making the positions available. Third, the facts that Lopez applied for positions for which she believes she was qualified and that the positions were thereafter closed does not, absent any other information, support a reasonable inference that Permanente Medical Group was attempting to encourage Lopez to retire. Lopez's belief that the positions were closed to force her into retirement is nothing more than speculation and does not create a triable issue of fact as to whether Permanente Medical Group's decision to terminate her was pretextual. (Horn, supra, 72 Cal.App.4th at p. 807.)
For the first time in her reply brief, Lopez argues that the relevant adverse employment action for her age discrimination claim is Permanente Medical Group's alleged closure of the two positions for which she applied. We do not consider the argument for numerous reasons, including that the only adverse employment action Lopez alleged in the complaint was her termination, (Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1250 (Conroy)), and that the argument was not raised in the trial court (Jimenez, supra, 237 Cal.App.4th at p. 567).
Similarly, Lopez's remaining evidence about her positive performance evaluations and her rate of pay do not, without more, support a reasonable inference that Permanente Medical Group's stated reason for terminating her was pretextual or based on discriminatory animus.
For all of these reasons, we conclude that Lopez failed to carry her burden of introducing substantial evidence that Permanente Medical Group's stated reason for terminating her was pretextual or based on discriminatory animus. B. Retaliation under FEHA
Lopez also challenges the trial court's grant of summary judgment on her retaliation claim under FEHA and argues that she set forth evidence establishing a prima facie case for that claim. We are not persuaded.
FEHA prohibits an employer from retaliating against an employee for engaging in certain protected conduct. (§ 12940, subd. (h).) "In order to establish a prima facie case of retaliation under this section, 'a plaintiff must show (1) he or she engaged in a "protected activity," (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action.' [Citation.] If any employee presents a prima facie case of retaliation, the court then employs the three-stage McDonnell Douglas burden shifting analysis to the employee's claim." (Moore, supra, 248 Cal.App.4th at p. 244.)
Lopez alleged in her complaint that she was retaliated against because she "requested a reasonable accommodation for her disability and opposed [Permanente Medical Group's] failure to provide her with an accommodation, which are protected activities pursuant to FEHA." The issues to be decided on a motion for summary judgment are limited to the allegations contained in the pleadings. (Conroy, supra, 45 Cal.4th at p. 1250.) In support of their motion for summary judgment, defendants argued that Lopez could not show a causal link between any protected activity and Permanente Medical Group's termination of her employment. The trial court agreed. The trial court also determined that Lopez did not introduce any evidence that she requested any accommodation other than medical leaves of absence or that any such requests were denied, and Lopez does not challenge those determinations. She actually admitted at her deposition that medical leave was the only accommodation she requested and that all such requests were granted.
In her opening brief on appeal, Lopez does not expressly address the trial court's determination that she failed to introduce evidence of a causal link between her alleged protected activity and her termination. (She also does not limit her discussion to the protected activity alleged in her complaint, but that is the only alleged protected activity that we consider (Conroy, supra, 45 Cal.4th at p. 1250).) Lopez does, however, assert that "the timing of the termination" shows a causal link to her protected activity.
The argument lacks merit. Lopez does not (and cannot) challenge the trial court's determination that medical leaves of absence were the only reasonable accommodations that she ever requested and that all of those requests were granted. When Lopez was on medical leave in 2014, Permanente Medical Group received and confirmed John's complaint that Lopez had improperly kept Jonathan on her medical insurance plan. Upon her return to work, she was terminated. There is no evidence that defendants played any role in soliciting John's complaint, and, for reasons already discussed, there is no evidence that Permanente Medical Group conducted a biased or improper investigation or did not honestly believe in its stated reasons for terminating Lopez. Given all of those facts, "the timing of the termination" in relation to Lopez's request for accommodation has no tendency to show a causal link between the termination and the request. And given the unchallenged findings (and Lopez's admissions) that the only accommodation Lopez ever requested was medical leave and that all such requests were granted, we need not address Lopez's unsupported allegation that she was terminated in retaliation for opposing Permanente Medical Group's failure to accommodate her—there is no evidence of any such failure. For all of these reasons, Lopez has failed to show that the trial court erred by granting summary judgment as to her retaliation claim.
DISPOSITION
The judgment is affirmed. The parties shall bear their own costs of appeal pursuant to the parties' stipulation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ
J. We concur: RAMIREZ
P. J. MILLER
J.