Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC343703. Ruth A. Kwan, Judge.
Franklin L. Ferguson, Jr. for Plaintiff and Appellant.
Wolflick & Simpson and David B. Simpson for Defendant and Respondent.
ZELON, J.
Appellant Cheryl Markray (“Markray”) filed this action against her former employer, Respondent Pacific Bell Directory (“Pacific Bell”), alleging race and gender discrimination and retaliation in violation of the California Fair Employment and Housing Act (FEHA), Gov. Code § 12900 et seq. In her complaint, Markray asserted that Pacific Bell discriminated against her in the manner in which it handled her transfer and other work assignment issues, and then retaliated against her for filing an administrative complaint about the discrimination. The trial court granted Pacific Bell’s motion for summary judgment and entered judgment against Markray. Markray now appeals the trial court’s summary judgment ruling as well as its prior discovery ruling on Markray’s motion to compel the further production of documents. For the reasons set forth below, we affirm the trial court’s orders granting summary judgment in favor of Pacific Bell and denying Markray’s motion to compel further responses to discovery.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
I. Markray’s Voluntary Transfer
Markray, an African-American female, was employed by Pacific Bell as a premise sales representative. At all times, the terms and conditions of her employment were governed by a collective bargaining agreement between Pacific Bell and Local 2139, International Brotherhood of Electrical Workers (“Local 2139”). As a premise sales representative, Markray was responsible for selling advertising to customers for Pacific Bell’s yellow pages directories. In October 2002, Pacific Bell’s Los Angeles office began the “Los Angeles 2003 sales campaign,” which referred to the company’s efforts to sell advertising to customers for its Los Angeles directory published in 2003. At the time, there were two crews of premise sales representatives working in the Los Angeles office. One crew was managed by Elliot Marbury (“Marbury”), and the other was managed by Matt Condensa (“Condensa”).
At the start of any sales campaign, Pacific Bell would assign each premise sales representative on that campaign an initial market share of advertising accounts based on a formula set forth in the collective bargaining agreement. If a crew had a vacancy at the start of a campaign, Pacific Bell’s practice was to assign one market share of accounts to a placeholder account until the position was filled by a new sales representative. On the other hand, if a crew developed a vacancy during the course of a campaign, Pacific Bell’s practice was to assign a pro rata market share of accounts to the new sales representative based, in part, on the number of days left in the campaign at the time the position was filled. These decisions were made in accordance with the collective bargaining agreement between Pacific Bell and Local 2139, subject to some managerial discretion to adjust market shares where appropriate.
At the start of the Los Angeles 2003 sales campaign, Marbury had a vacancy on his crew. As a result, Marbury assigned one full market share of advertising accounts to a placeholder account. In November 2002, the vacancy had yet to be filled, so Marbury reassigned a portion of the placeholder account to other members of his crew. In late 2002, Ronald Sandoval (“Sandoval”), a non-African-American male, applied for the open position. At the time, Sandoval was working as a premise sales representative in Pacific Bell’s Orange County office. Pacific Bell offered Sandoval the open position, which he accepted on December 12, 2002. On December 23, 2002, Marbury assigned Sandoval the remaining placeholder account, which consisted of approximately $54,000 in potential revenue.
Although Marbury anticipated that Sandoval would transfer to the Los Angeles office immediately, management in Orange County decided that it needed Sandoval to conclude certain assignments before he began working in Los Angeles. Management in Los Angeles agreed. As a result, Sandoval was loaned back to the Orange County office to complete his work on an active Orange County campaign. Sandoval did not physically report to the Los Angeles office until March 24, 2003. Under company policy, Sandoval was not permitted to begin working on the Los Angeles campaign until he completed his work on the Orange County campaign because, with few exceptions, Pacific Bell prohibited a sales representative from working two different markets at the same time. Although Sandoval insisted that he did not simultaneously work on both campaigns, his sales activity audit reports showed that he was performing work on his Los Angeles accounts before physically reporting to the Los Angeles office, in violation of company policy.
At the start of the Los Angeles 2003 sales campaign, the other premise sales manager in Los Angeles, Condensa, had a full crew. However, during the campaign, two sales representatives from Condensa’s crew transferred to other positions. Markray, who was working in the Pasadena office at the time, applied for a lateral transfer to Los Angeles. Pacific Bell offered Markray one of the open positions, which she accepted on January 24, 2003. Lillian Twine (“Twine”), an African-American female, was promoted into the other position. Both Markray and Twine physically reported to the Los Angeles office on February 3, 2003. In determining their assignments for the Los Angeles campaign, Condensa divided the total market that remained from the two departing employees evenly between Markray and Twine. As a result, each received approximately $27,500 in potential revenue. Condensa did not have any other accounts to assign to Markray or Twine at that time.
Prior to her transfer to the Los Angeles office, Markray was working on the Glendale 2003 sales campaign. Pacific Bell’s policy when a sales representative vacated a position during a campaign was to reassign that employee’s advertising accounts to other eligible employees according to a matrix set forth in the collective bargaining agreement. In making market reassignments, Pacific Bell referred to its “market eligibility lists,” which ranked each premise sales representative in each office according to his or her individual sales performance as compared to objectives established by the company. Based on those monthly rankings, Pacific Bell was required to give priority for market reassignments to the top 35 percent of sales performers. At the time of her transfer to Los Angeles, Markray was not in the top 35 percent of performers and was not allowed to retain any of her Glendale accounts. In March 2003, Markray’s Pasadena manager, Steve Hernandez (“Hernandez”), reassigned her Glendale accounts to six other sales representatives, including Sandoval.
As specified in the collective bargaining agreement, market reassignments were to be made according to the following priority: (1) top 35 percent in the same crew, channel, and campaign, (2) top 35 percent in the same channel and campaign, (3) top 35 percent in the same channel and satellite, (4) top 35 percent in the same channel and branch, and (5) all remaining sales representatives in the same channel, satellite, and branch regardless of performance. The term “channel” referred to the type of sales representative. For instance, “premise” sales representatives, who travelled to their customers’ premises to sell advertising, comprised one channel.
II. Markray’s Post-Transfer Assignment Issues
In mid-May 2003, Markray ran out of commissionable work. As a result, she requested that she be compensated with a type of pay known as “DSA.” “DSA” referred to “Daily Sales Average” and was a substitute form of pay that compensated sales representatives for certain non-sales time. The collective bargaining agreement defined the types of activities that qualified for DSA pay, but did not list the lack of work as a compensable activity. According to Robert Magee (“Magee”), then the acting General Manager for the Los Angeles office, he denied Markray’s request because she was not entitled to DSA pay under the terms of the collective bargaining agreement. When Markray inquired about the denial, Magee informed her that there was no commissionable work until the new market would be cut around May 19, 2003.
Between July 2003 and March 2004, Markray reported to management that various assignment errors had been made on her accounts, primarily involving pay issues. Assignment errors arose from time to time during Markray’s employment, and prior to July 2003, a portion of her reported errors were resolved in her favor. However, after July 2003, none of the errors identified by Markray was corrected. Markray reported one such error in December 2003. After Markray was erroneously assigned an account that was placed in collections, a sales loss in the amount of $3,600 was posted to Markray even though it should have been posted to a Caucasian male employee. Markray reported the error to Terry Cole (“Cole”), the General Manager for the Los Angeles office. Although Cole promised to reverse the loss, he never did.
Apart from commissionable work, sales representatives occasionally were offered temporary job assignments, such as assisting other offices with the closing of campaigns. Employees earned DSA pay while performing temporary duties. Magee and Cole were responsible for assigning temporary projects to sales representatives in Los Angeles, and they based their assignments on productivity, performance and workflow. In late 2003, management placed Sandoval on a temporary assignment to assist with the closing of a directory. In early 2004, management placed four other male employees on temporary assignments to assist with the closing of two directories. Markray was not offered the opportunity to work on any of these assignments.
III. Markray’s Administrative And Civil Complaints
On December 2, 2003, Markray filed her first administrative complaint with the Department of Fair Employment and Housing (“DFEH”), alleging discrimination. In that complaint, Markray asserted that she was denied equal pay and working conditions on the basis of her race and gender because, unlike Markray, Sandoval was allowed to negotiate his transfer date and to have “untouched market” in greater quantity than his actual sales days on the Los Angeles campaign. Markray did not raise any post-transfer assignment issues in her DFEH complaint or in her subsequent communications with the DFEH about its investigation. Following its investigation of Markray’s first administrative complaint, the DFEH sent her a notice of case closure and right-to-sue, finding that there was no probable cause to prove a violation of FEHA.
On February 21, 2004, approximately three months after she filed the first DFEH complaint, Markray was denied a bonus known as a “campaign objective bonus.” The decision-maker regarding Markray’s bonus was Mark Peters (“Peters”), the Director of Labor Relations. According to Peters, he denied the bonus because of certain discrepancies in Markray’s posted sales results. At the time Peters made the bonus decision, he was not aware that Markray had filed an administrative complaint with the DFEH.
In March 2004, Markray began a disability leave of absence due to a lung condition. On December 1, 2004, she filed a second administrative complaint with the DFEH, alleging retaliation. In that complaint, Markray asserted that Pacific Bell retaliated against her for filing the first DFEH complaint by denying her short-term disability benefits in July 2004. In response to Markray’s request, the DFEH issued an immediate right-to-sue notice on the second administrative complaint. Markray did not return to work from her leave, but retired in September 2005.
On November 29, 2005, Markray filed a civil action against Pacific Bell, asserting three FEHA causes of action for race discrimination, gender discrimination, and retaliation. With respect to her race and gender discrimination claims, Markray alleged that Pacific Bell discriminated against her in the manner in which it handled her transfer as compared to Sandoval, and in the manner in which it addressed her post-transfer assignment issues as compared to Caucasian male employees. With respect to her retaliation claim, Markray alleged that Pacific Bell retaliated against her by failing to pay her a bonus and refusing to provide any assistance in resolving the bonus issue. Markray’s civil complaint did not make any reference to the denial of the disability benefits or any other alleged retaliatory act.
IV. Markray’s Motion To Compel Further Discovery Responses
Following the filing of Markray’s civil complaint, the parties engaged in extensive discovery. On July 13, 2007, Markray filed a motion to compel further responses to her requests for production of documents. In her motion, Markray sought the personnel records of Sandoval and four former managers – Magee, Hernandez, Condensa and Marbury. She also sought a series of documents that she described as “pattern and practice” evidence, and that primarily consisted of reports showing how other employees were given their initial market assignments and reassignments and how they performed in their sales positions. On August 7, 2007, the trial court denied Markray’s motion to compel.
V. Pacific Bell’s Motion For Summary Judgment
Pacific Bell filed a motion for summary judgment, or in the alternative, summary adjudication. On September 4, 2007, the trial court granted the motion for summary judgment. In ruling on the discrimination claims, the trial court separately addressed the allegations regarding Markray’s transfer and the allegations regarding her post-transfer assignment issues. With respect to the transfer related allegations, the court concluded that Markray did not suffer any adverse employment action based on the undisputed facts that Pacific Bell’s transfer related decisions were made in accordance with company policy and Markray was not eligible to receive any of the market that she claimed was improperly assigned to Sandoval or other employees. With respect to the non transfer related allegations, the court concluded that Markray failed to exhaust her administrative remedies because she did not identify any non-transfer issues in her DFEH complaints or bring any such issues to the attention of the DFEH. As for the retaliation claim, the court ruled that Markray could not show a causal connection between her DFEH complaint and the bonus decision because it was undisputed that the decision-maker had no knowledge of the DFEH complaint at the time he denied the bonus.
In its written order, the trial court did not address the allegation in Markray’s second DFEH complaint that Pacific Bell retaliated against her by denying disability benefits. However, the reporter’s transcript reflects that the court asked Markray’s counsel at the outset of the summary judgment hearing whether the denial of disability benefits was mentioned anywhere in the civil complaint, and counsel admitted it was not.
The trial court entered judgment in favor of Pacific Bell on October 10, 2007. On December 5, 2007, Markray filed a timely appeal, challenging both the order granting Pacific Bell’s motion for summary judgment and the order denying Markray’s motion to compel further discovery responses.
DISCUSSION
VI. Motion For Summary Judgment
A. Standard Of Review
“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, fn. omitted.) “Once the [movant] has met that burden, the burden shifts to the [other party] to show that a triable issue of one or more material facts exists as to that cause of action....” (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co., supra, at p. 850.) The party opposing summary judgment “may not rely upon the mere allegations or denials of its pleadings,” but rather “shall set forth the specific facts showing that a triable issue of material fact exists....” (Code Civ. Proc., § 437c, subd. (p)(2).) A triable issue of material fact exists where “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.” (Aguilar v. Atlantic Richfield Co., supra, at p. 850.)
Where summary judgment has been granted, we review the trial court’s ruling de novo. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 860.) We consider all of the evidence presented by the parties in connection with the motion (except that which the trial court properly excluded) and all of the uncontradicted inferences that the evidence reasonably supports. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.) We affirm summary judgment where it is shown that no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).).
A. Race And Gender Discrimination
1. Governing Legal Principles
FEHA prohibits an employer from, among other things, discriminating against a person on the basis of race or gender in the terms and conditions of employment. (Gov. Code, § 12940, subd. (a).) Discriminatory intent is an essential element of Markray’s race and gender discrimination claims. (Gov. Code, § 12940, subd. (a); Clark v. Claremont University Center (1992) 6 Cal.App.4th 639, 662.) Because direct evidence of discriminatory intent is rare, California has adopted the three-stage burden-shifting test established by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. (Guz v. Bechtel National, Inc. (Guz) (2000) 24 Cal.4th 317, 354.)
“At trial, the McDonnell Douglas test places on the plaintiff the initial burden to establish a prima facie case of discrimination.... [¶] Generally, the plaintiff must provide evidence that (1) he [or she] was a member of a protected class, (2) he [or she] was qualified for the position he [or she] sought or was performing competently in the position he [or she] held, (3) he [or she] suffered an adverse employment action,... and (4) some other circumstance suggests discriminatory motive. [Citations.] [¶] If, at trial, the plaintiff establishes a prima facie case, a presumption of discrimination arises.... [¶] Accordingly, at this trial stage, the burden shifts to the employer to rebut the presumption by producing admissible evidence, sufficient to ‘raise[] a genuine issue of fact’ and to ‘justify a judgment for the [employer],’ that its action was taken for a legitimate, nondiscriminatory reason. [Citations.] [¶] If the employer sustains this burden, the presumption of discrimination disappears. [Citations.] The plaintiff must then have the opportunity to attack the employer’s proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive. [Citations.]... The ultimate burden of persuasion on the issue of actual discrimination remains with the plaintiff. [Citations.]” (Guz, supra, 24 Cal.4th at pp. 354-356.)
When moving for summary judgment on a FEHA claim, an employer can negate the element of discriminatory intent and shift the burden to the plaintiff by showing that the plaintiff cannot state a prima facie case of discrimination or that the employer had a legitimate, nondiscriminatory reason for the alleged adverse action. (Guz, supra, 24 Cal.4th at pp. 356-357; Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 150; see also Code Civ. Proc., § 437c, subd. (p)(2) [defendant meets its burden on summary judgment by showing that “one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action”].) If the employer sets forth a nondiscriminatory reason for its decision, the burden shifts to the plaintiff to produce “‘substantial responsive evidence’ that the employer’s showing was untrue or pretextual. [Citation.]” (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1735.) “[A]n employer is entitled to summary judgment if, considering the employer’s innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that the employer’s actual motive was discriminatory.” (Guz, supra, at p. 361, fn. omitted.)
Markray’s race and gender discrimination claims are based on two types of alleged adverse actions: (1) transfer related actions concerning Markray’s lateral transfer to the Los Angeles office, and (2) non-transfer related actions concerning Markray’s work assignments after her transfer. We consider each category of employment actions in turn.
1. Transfer Related Actions
In her civil complaint, Markray alleged that Pacific Bell treated her less favorably than Sandoval on the basis of her race and gender in three aspects of their respective transfers: (1) the amount of market that Markray was assigned upon transferring as compared to Sandoval, (2) the timing of Markray’s transfer as compared to Sandoval, and (3) the reassignment of Markray’s prior advertising accounts to other sales representatives, including Sandoval.
In moving for summary judgment, Pacific Bell asserted that it had shown that Markray could not state a prima facie case of discrimination based on these transfer related decisions because she was not subjected to any adverse employment action. Alternatively, Pacific Bell argued that it had set forth legitimate, nondiscriminatory reasons for its actions and Markray failed to show that its reasons were pretextual. We conclude that, even assuming Markray could establish a prima facie case of race or gender discrimination, Pacific Bell provided legitimate, nondiscriminatory reasons for its transfer related decisions and Markray failed to produce any specific, substantial evidence of pretext.
We note that the trial court granted summary adjudication on the discrimination claims, in part, on the ground that Markray could not state a prima facie case because she could not show she suffered an adverse employment action in connection with her transfer. Although the trial court granted summary adjudication on a different ground, supplemental briefing is not required under Code of Civil Procedure section 437c, subdivision (m)(2) because the ground on which we rely was already briefed on appeal. (Byars v. SCME Mortgage Bankers, Inc. (2003) 109 Cal.App.4th 1134, 1147, fn. 7.)
a. Legitimate, Nondiscriminatory Reasons
First, Pacific Bell articulated a legitimate, nondiscriminatory reason for assigning Markray a pro rata share of the Los Angeles market while assigning Sandoval a larger placeholder account. It produced substantial evidence that a different market assignment practice applied when a position was open at the start of a campaign as opposed to during a campaign. When there was a vacancy at the start of a campaign, as was the case with the position filled by Sandoval, the company’s practice was to assign one market share of accounts to a placeholder account until the position was filled. In contrast, when there was a vacancy during the course of a campaign, as was the case with the position filled by Markray, the company’s practice was to assign a pro rata share of accounts to the new sales representative once the position was filled. The method of assigning market to Markray and Sandoval was different because the timing of the vacancies was different.
Pacific Bell also set forth a legitimate, nondiscriminatory reason for transferring Markray to the Los Angeles office approximately one week after her acceptance while allowing Sandoval to delay his transfer for three months. Pacific Bell offered testimony that management was responsible for determining the date on which a transferring employee physically reported to his or her new position, and that Orange County management requested that Sandoval complete his work on an active Orange County campaign before reporting to Los Angeles. Pasadena management did not make any similar request regarding Markray, and Markray did not ask her manager if she could transfer on an alternative date.
Likewise, Pacific Bell offered a legitimate, nondiscriminatory reason for reassigning Markray’s Glendale accounts to other sales representatives, including Sandoval. Pacific Bell presented evidence that, with few exceptions, a transferring employee was not allowed to take existing accounts to a new sales office, and that such accounts were reassigned according to an eligibility matrix in the collective bargaining agreement. Pacific Bell also produced evidence that Markray was not eligible for market reassignments because she was not in the top 35 percent of performers during the relevant time period, whereas Sandoval was.
Based on this evidence, Pacific Bell met its burden of establishing legitimate, nondiscriminatory reasons for its transfer related decisions. Therefore, the burden shifted to Markray to present competent admissible evidence that Pacific Bell’s proffered reasons were pretextual or that it otherwise acted with a discriminatory intent.
In her appellate brief, Markray cited to her separate statement in opposition to the summary judgment motion as the sole evidentiary support for many of her factual contentions. However, “a separate statement is not evidence; it refers to evidence submitted in support of or opposition to a summary judgment motion. In an appellate brief, an assertion of fact should be followed by a citation to the page(s) of the record containing the supporting evidence,” and not to the separate statement. (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 178, fn. 4.)
b. Evidence Of Pretext
The plaintiff in a discrimination action “‘may establish pretext “either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.”’ [Citations.]” (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 68-69.) To avoid summary judgment, the plaintiff must produce specific and substantial evidence of pretext. (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 807.) The plaintiff “‘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.... [Citations.] Rather, the [plaintiff] must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them “unworthy of credence,” [citation], and hence infer “that the employer did not act for the [the asserted] non-discriminatory reasons.” [Citations.]’” (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1005.) Markray failed to meet her burden here.
Markray did not produce any evidence of racial or gender bias on the part of the decision-makers involved in her transfer. At her deposition, Markray admitted that she never heard any of her managers in the Los Angeles office make any derogatory or biased remarks about African-Americans or women. The only gender related comment that Markray identified was made by Magee, the acting General Manager. Specifically, when Markray asked Magee why Sandoval was assigned his Los Angeles market before his actual transfer date, Magee responded that “he could handle it,” and according to Markray, placed emphasis on the word “he.” This stray remark is too ambiguous to show gender-based animus. (Gibbs v. Consolidated Services (2003) 111 Cal.App.4th 794, 801 [“‘stray’ remarks” are insufficient to show discriminatory intent]; Horn v. Cushman & Wakefield Western, Inc., supra, 72 Cal.App.4th at p. 809 [“isolated remark” that is “highly ambiguous as far as discriminatory animus” is “entitled to virtually no weight in considering whether the [adverse action] was pretextual”].)
With respect to the amount of market that she was assigned, Markray presented evidence that when an employee transferred to a position that was vacated during a sales campaign, he or she was assigned a pro rata market share based, in part, on the number of days left in the campaign. Yet none of Markray’s evidence disputed that a different policy applied when a sales position was open at the start of a campaign, as was the case with Sandoval. To the contrary, Markray admitted that Pacific Bell used placeholder accounts for openings at the start of campaigns and that Sandoval’s Los Angeles market came from such a placeholder account. Markray likewise admitted that her Los Angeles market assignment was made in accordance with company policy. Markray also did not offer evidence that any other employees were treated differently in their initial assignments based on race or gender. There was no evidence that Caucasian males who filled positions that opened mid-campaign were assigned full placeholder accounts, or that minority females who filled positions that opened at the start of a campaign were assigned pro rata market shares.
With respect to the timing of her transfer, Markray attempted to show pretext through her testimony that sales representatives could negotiate transfer dates and that management never offered her an opportunity to do so. But Markray did not present any evidence to support that Pacific Bell had a policy or practice of affirmatively offering employees an opportunity to negotiate their transfer dates or to complete current assignments before transferring. Markray also did not produce any evidence that she ever requested a different transfer date. Alternatively, Markray sought to establish pretext through evidence that Sandoval began working his Los Angeles market while in Orange County, in violation of company policy. However, Markray’s evidence failed to show that management had any knowledge that Sandoval was working two markets simultaneously. Markray’s only evidence was her own declaration attaching Sandoval’s “Audit Sales Activity Reports.” While these reports appear to show Los Angeles sales activity prior to Sandoval’s physical transfer, Markray did not provide any explanation as to what these reports were or whether they ever were reviewed by anyone in management. Markray’s declaration also attached “GM Override” forms approving customer discounts on two of Sandoval’s accounts. Although the forms were signed by management, there was no evidence that they were for Los Angeles accounts, and on their face, they appear to be for other sales campaigns.
With respect to the reassignment of her Glendale accounts, Markray admitted that she was not eligible to retain those accounts at the time of her transfer, but tried to show that Sandoval was also ineligible. Specifically, Markray asserted that Sandoval was not eligible to receive her accounts because, irrespective of his sales performance, he was not reporting to the Los Angeles office as of February 2003, when Markray transferred. It is, however, undisputed that Sandoval was reporting to the Los Angeles office by March 31, 2003, which, according to Markray, was when her accounts were reassigned to him.
Markray also asserted in her separate statement that her Glendale accounts should have been offered first to Pasadena sales representatives and then to Woodland Hills sales representatives. But Markray did not cite to any evidence to establish how the Woodland Hills office was related to the Pasadena office or why Woodland Hills sales representatives would have priority. Markray’s declaration referred to reassignment priority being given to sales representatives within the same “branch,” but did not state to what “branch” Pasadena or Woodland Hills representatives reported.
Markray also sought to establish pretext through evidence that male employees received market reassignments even when they were not in the top 35 percent of sales performers. However, Markray failed to produce any competent evidence of such disparate treatment. Markray relied primarily on the declaration of Deanna Ballard (“Ballard”), a former sales representative for Pacific Bell. In her declaration, Ballard stated that she conducted her own investigation into the company’s reassignment practices and concluded that eight male employees, including Sandoval, were assigned additional work when certain market eligibility lists showed them as ineligible. But Ballard’s opinion about the employees’ eligibility is not a fact; it is simply an opinion by a non-expert. None of the underlying documents on which Ballard based that opinion were included with her declaration. Pacific Bell, on the other hand, submitted eligibility lists with its evidence which showed that Sandoval was eligible for reassignment during the time period that Ballard opined that he was not. Markray also cited to the deposition testimony of Condensa who acknowledged that he nominated two male employees for reassignments when they were listed as “ineligible” on certain documents shown to him at his deposition. However, there was no basis in that testimony to conclude that the documents pertained to the same time period as the nominations given that Condensa testified that he did not know whether the references to the employees’ ineligibility in the documents applied to the time frame that he was recommending them for reassignments. Because Markray did not attach those documents to Condensa’s testimony or identify whether they were included elsewhere in her opposition, she failed to create a triable issue of fact as to whether the employees were ineligible for reassignments at the time of their nominations.
Accordingly, even if Markray could establish a prima facie showing of race or gender discrimination, she did not offer any specific and substantial evidence that Pacific Bell’s proffered reasons for its transfer related decisions were untrue or pretext for unlawful discrimination.
1. Non-Transfer Related Actions.
In her civil complaint, Markray also alleged that Pacific Bell discriminated against her on the basis of her race and gender in its handling of assignment issues that arose after her transfer. These non-transfer related actions consisted of the following: (1) the refusal to authorize DSA pay to Markray when she ran out of work in May 2003; (2) the failure to resolve errors in Markray’s account assignments between July 2003 and March 2004; (3) the erroneous posting of a sales loss to Markray in December 2003; and (4) the denial of temporary assignments to Markray in late 2003 and early 2004.
In its summary judgment motion, Pacific Bell argued that Markray’s non-transfer related claims failed because she did not exhaust her administrative remedies, or alternatively, because she could not establish that Pacific Bell’s nondiscriminatory reasons for its decisions were pretextual. We agree that, even if Markray properly exhausted her administrative remedies, she failed to demonstrate the existence of a triable factual issue as to whether Pacific Bell’s reasons for its non-transfer related actions were pretext for race or gender discrimination.
The trial court granted summary adjudication on the discrimination claims, in part, on the ground that Markray failed to exhaust her administrative remedies because she did not identify any non-transfer issues in her DFEH complaints. In light of our conclusion that Markray’s non-transfer related allegations fail on another ground, which was already briefed by the parties on appeal, we need not address the exhaustion issue.
With respect to the refusal to authorize DSA pay to Markray, Pacific Bell produced evidence that DSA compensation was governed by the collective bargaining agreement, and that the lack of commissionable work was not a contractual basis for such pay. Markray sought to demonstrate pretext through her testimony that she believed there was a historical practice of paying DSA to sales representatives who ran out of work. However, Markray admitted that she never received DSA pay based solely on the lack of work, nor was she aware of anyone else receiving DSA pay for that reason.
With respect to the failure to resolve errors in Markray’s account assignments, Pacific Bell submitted the declarations of Magee, Cole and Condensa, the managers who were responsible for addressing Markray’s reported errors. Condensa stated that when sales representatives brought assignment issues to his attention, he would prioritize them in the context of his overall workflow and then submit the issues to the appropriate channels for resolution. Condensa asserted that he never made any decisions concerning assignment issues on the basis of race or gender. Magee and Cole likewise stated that they sought to resolve any assignment issues that were brought to their attention in accordance with company policy and that they never considered race or gender in addressing such issues. Markray’s sole evidence of disparate treatment in the handling of assignment errors was her testimony that an unidentified Caucasian male employee had a complex issue resolved rather quickly while her simpler issues were not addressed. But Markray offered no evidence about whether the same decision-makers were involved, whether the assignment issues were sufficiently similar in nature, or to what extent the male employee’s issue was resolved in his favor.
With respect to the erroneous posting of a sales loss to Markray, Pacific Bell presented evidence that Markray did not suffer any adverse employment action because she admitted that the error did not have any negative financial impact on her. Markray contends that the error potentially could have impacted her if she had completed the campaign instead of taking a disability leave. However, to constitute an “adverse employment action,” there must be a material change in the terms or conditions of employment. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1050-1051.) An employer’s action does not materially alter the terms or conditions of employment merely because it might have some adverse impact on the employee at some future time. (See Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1457 [unfavorable evaluation is only actionable “where the employee proves the ‘employer subsequently uses the evaluation as a basis to detrimentally alter the terms or conditions of the recipient’s employment’”].) There was no evidence that Pacific Bell used or would use the error to reduce Markray’s pay or otherwise adversely impact her. Even assuming Markray could make a prima facie showing of discrimination based on the error, the manager responsible for resolving the error, Cole, stated that he addressed such issues according to company policy and did not base his decisions on race or gender. Markray did not produce any evidence to show that Cole had any racial or gender bias or that his failure to resolve the error was motivated by discrimination. (Guz, supra, 24 Cal.4th at p. 358 [“[I]f nondiscriminatory, [an employer’s] true reasons need not necessarily have been wise or correct.... [T]he ultimate issue is simply whether the employer acted with a motive to discriminate illegally.”].)
Finally, with respect to the denial of temporary assignments to Markray, Pacific Bell offered evidence that the managers responsible for assigning temporary projects based their decisions on productivity, performance and workflow. In an effort to show pretext, Markray testified that Sandoval and four other male employees were placed on temporary projects while she was never offered such opportunities. But Markray failed to produce any competent evidence to establish how her productivity and workflow compared to those employees during the relevant time period. Although Markray attached various documents to her declaration which showed that she received some recognition for her sales performance, most did not provide any comparative data. Only one report included any information about the four male employees who received temporary assignments in early 2004, but on its face, that report was limited to sales during one week in 2003. Another report appeared to show that Markray ranked second among premise sales representatives, but that report only ranked a total of three such salespeople. Other than asserting that these documents showed that she performed her job well, Markray’s declaration failed to include any information about what these reports were or what they evidenced about her performance and workflow as compared to other employees.
In sum, Pacific Bell presented substantial evidence to show that it had legitimate, nondiscriminatory reasons for both its transfer related and non-transfer related decisions. Because Markray failed to come forward with “evidence supporting a rational inference that intentional discrimination... was the true cause of [Pacific Bell’s] actions,” Pacific Bell was entitled to summary adjudication on Markray’s causes of action for race and gender discrimination. (Guz, supra, 24 Cal.4th at p. 361.)
A. Retaliation
4. Governing Legal Principles
The same burden-shifting analysis that applies to a FEHA discrimination claim also applies to a FEHA retaliation claim. (Yanowitz v. L’Oreal USA, Inc., supra, 36 Cal.4th at p. 1042.) A plaintiff establishes a prima facie case of retaliation by showing that (1) he or she engaged in a protected activity, (2) the employer subjected the plaintiff to an adverse employment action, and (3) a causal link existed between the protected activity and the adverse action. (Ibid.) An employer can satisfy its burden on summary judgment by showing that the plaintiff cannot state a prima facie case or by setting forth a legitimate, non-retaliatory reason for its action. (Ibid.; Sada v. Robert F. Kennedy Medical Center, supra, 56 Cal.App.4th at p. 155.) Summary judgment is proper if, upon consideration of all the circumstances, the evidence does not permit a rational inference that the actual motive was retaliatory. (Yanowitz v. L’Oreal USA, Inc., supra, at p. 1062.)
1. Denial Of Bonus
In her civil complaint, Markray alleged that Pacific Bell retaliated against her for filing the first DFEH complaint in December 2003 by denying her a campaign objective bonus in February 2004. In its summary judgment motion, Pacific Bell asserted, among other arguments, that Markray could not make a prima facie showing of retaliation based on the denial of the bonus because the decision-maker for the bonus had no knowledge of the DFEH complaint at the time of his decision. We agree.
To state a prima facie case of retaliation, the plaintiff must show a causal connection between the protected activity and the adverse action. A causal link can be established through circumstantial evidence such as evidence of “the employer’s knowledge that the employee engaged in protected activities and the proximity in time between the protected action and the allegedly retaliatory employment decision.” (McRae v. Department of Corrections and Rehabilitation (2006) 142 Cal.App.4th 377, 388.) However, “‘[e]ssential to a causal link is evidence that the employer was aware that the plaintiff had engaged in the protected activity.’ [Citation.]” (Morgan v. Regents of University of California, supra, 88 Cal.App.4th at p. 70.) Where the decision-maker for the adverse employment action had no knowledge of the employee’s protected activity, a prima facie showing of retaliation cannot be made. (Id. at pp. 73-77.)
Here, Pacific Bell submitted undisputed evidence that the sole decision-maker regarding Markray’s bonus was Peters, the Director of Labor Relations, and that Peters was not aware of Markray’s DFEH complaint at the time he decided to deny the bonus. Apart from her own testimony that she believed DFEH complaints fell within Peters’ purview in Labor Relations, Markray did not offer any evidence to refute Peters’ sworn statement that he had no prior knowledge of her administrative complaint. To the contrary, Markray admitted that no one ever told her who at the company was responsible for responding to her DFEH complaint, nor did anyone advise her that Peters was aware of her complaint. Peters, on the other hand, explained that Pacific Bell’s Human Resources department was responsible for handling DFEH complaints filed by employees, and that he was not aware of Markray’s complaint because he was not a member of that department. Given this uncontroverted evidence, Markray could not establish a prima facie case of retaliation based on the denial of the bonus.
1. Denial Of Disability Benefits
In her opposition to the summary judgment motion, Markray asserted that Pacific Bell also retaliated against her for filing the first DFEH complaint by denying her short-term disability benefits in July 2004. Without addressing the substance of Markray’s claim, Pacific Bell argued that Markray could not raise the denial of disability benefits in her opposition papers because she did not plead that alleged retaliatory action in her civil complaint. The trial court agreed and refused to consider the merits of Markray’s claim regarding the denial of disability benefits. We likewise conclude that Markray cannot resist summary judgment based on Pacific Bell’s purported denial of disability benefits because Markray never alleged that theory of retaliation anywhere in her civil complaint, nor did she seek leave to amend her complaint prior to the summary judgment hearing.
It is well-settled that the pleadings define the scope of issues to be addressed at summary judgment and that a plaintiff cannot defeat summary judgment by raising issues outside the pleadings. (Government Employees Ins. Co. v. Superior Court (2000) 79 Cal.App.4th 95, 98, fn. 4 [“A defendant moving for summary judgment need address only the issues raised by the complaint; the plaintiff cannot bring up new, unpleaded issues in his or her opposing papers.”]; Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342 [“The burden of a defendant moving for summary judgment only requires that he or she negate plaintiff’s theories of liability as alleged in the complaint. A ‘moving party need not “... refute liability on some theoretical possibility not included in the pleadings.”’”].) Rather, a plaintiff seeking to create a triable issue based on a matter not raised by the pleadings must seek leave to amend the complaint before the summary judgment motion is heard. (Distefano v. Forester (2001) 85 Cal.App.4th 1249, 1264-1265; Leibert v. Transworld Systems, Inc. (1995) 32 Cal.App.4th 1693, 1699.) Absent a request for leave to amend, the plaintiff forfeits his or her opportunity to raise new issues in opposition to the summary judgment motion. (Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1664.)
Markray concedes that she did not plead the denial of short-term disability benefits as an alleged retaliatory action anywhere in her civil complaint. She contends, however, that Pacific Bell had adequate notice that she was basing her retaliation claim, in part, on the denial of such benefits because she pleaded that theory of retaliation in her second DFEH complaint and also testified about it at her deposition. Markray is correct that her second administrative complaint charged Pacific Bell with retaliation based solely on the alleged denial of disability benefits. However, as discussed, it is the civil complaint that defines the scope of issues to be considered in a summary judgment motion, and in this case, Markray pleaded the allegations in her civil complaint with particularity. Markray’s civil complaint specifically alleged that she filed a DFEH charge in December 2003, that Pacific Bell failed to pay her a bonus or to provide any assistance in resolving the bonus in February 2004, and that “[t]his failure to pay and lack of assistance was in retaliation for filing the aforementioned DFEH charge.” The civil complaint did not refer to any other alleged act of retaliation, nor did it suggest that there were other retaliatory acts not specifically alleged.
Moreover, although Markray did mention the alleged denial of disability benefits as a basis for her retaliation claim at her January 2007 deposition, she made no attempt to amend her civil complaint prior to the September 2007 hearing on the summary judgment motion, nor did she seek leave to amend her complaint at that hearing. Instead, when asked by the trial court whether the denial of disability benefits was alleged anywhere in the civil complaint, Markray’s counsel simply stated that it was not. Under these circumstances, Markray could not defeat summary judgment on the retaliation claim by raising the purported denial of disability benefits in her opposition papers. Pacific Bell therefore was entitled to summary adjudication on Markray’s cause of action for retaliation.
In her opposition to the summary judgment motion, Markray asserted that she was also basing her retaliation claim on Pacific Bell’s alleged failure to resolve her account assignment errors. However, the evidence cited in Markray’s separate statement does not support that assertion. As evidentiary support, Markray cited to her deposition testimony that she believed the failure to resolve her reported errors was the result of race and gender discrimination. Nowhere in that testimony did Markray refer to retaliation, her DFEH complaints, or any other protected activity.
I. Motion To Compel Further Discovery Responses
In her appeal, Markray also challenges the trial court’s order denying her motion to compel the further production of documents. We review a trial court’s discovery order for an abuse of discretion and will affirm its ruling unless it falls outside the bounds of reason. (John B. v. Superior Court (2006) 38 Cal.4th 1177, 1186; Cates v. California Gambling Control Com. (2007) 154 Cal.App.4th 1302, 1312.) At issue here are two categories of documents: (1) the personnel records of five Pacific Bell employees, and (2) comparative documents described by Markray as “pattern and practice” evidence.
D. Third Party Personnel Records
In her motion to compel, Markray sought the personnel records of Magee, Hernandez, Condensa, Marbury and Sandoval. The trial court denied Markray’s request on the grounds that she did not demonstrate a compelling need for the entirety of the employees’ personnel files nor an inability to obtain the information sought through less intrusive means. We agree.
It is well-established that the personnel records of employees are protected by the constitutional right of privacy. (Cal. Const., art. I, § 1; El Dorado Savings & Loan Assn. v. Superior Court (1987) 190 Cal.App.3d 342, 345; Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, 525-526.) As such, when a discovery request seeks third party personnel files, California courts must carefully balance the compelling need for the discovery against the fundamental right of privacy. (El Dorado Savings & Loan Assn. v. Superior Court, supra, at p. 346; Board of Trustees v. Superior Court, supra, at p. 525.) “[T]he balance will favor privacy for confidential information in third party personnel files unless the litigant can show a compelling need for the particular documents and that the information cannot reasonably be obtained through depositions or from nonconfidential sources. [Citation.]” (Harding Lawson Associates v. Superior Court (1992) 10 Cal.App.4th 7, 10.) Yet “[e]ven when the balance does weigh in favor of disclosure, the scope of disclosure must be narrowly circumscribed. [Citation.]” (Ibid.)
Markray did not show a compelling need for the scope of records requested. She sought the entire personnel file of Sandoval from the start of his employment at Pacific Bell, and the personnel files of the four managers from at least 2001 to the present. While Markray claims that there was a compelling need for Sandoval’s personnel records to compare his qualifications and performance to her own, her discovery request was not narrowly drawn to those types of comparative documents. (El Dorado Savings & Loan Assn. v. Superior Court, supra, 190 Cal.App.3d at p. 346 [plaintiffs in an employment discrimination action were not entitled to discovery of an alleged comparator’s entire personnel file].) Likewise, while Markray contends that she needed the personnel files of the managers to ascertain whether they had a history of discriminatory treatment, she did not limit the scope of her request to documents regarding prior discrimination complaints or investigations. Rather, Markray sought all personnel records of all four managers dating back to at least 2001.
Even if Markray could establish a compelling need for portions of the personnel files, she failed to show that she was unable to obtain the information sought through less intrusive means such as interrogatories or depositions. Notably, Markray deposed each of the five employees whose files she requested. There is no evidence that Markray attempted to obtain disciplinary and performance related information from these employees during their depositions, but was unable to do so. (Harding Lawson Associates v. Superior Court, supra, 10 Cal.App.4th at p. 10 [plaintiff was not entitled to discovery of employee personnel files where she failed to show that the information could not be obtained from non-confidential sources].) Thus, the trial court acted within its discretion in denying Markray’s motion to compel the production of the employees’ personnel records.
A. “Pattern And Practice” Evidence
Markray also moved to compel the production of nine categories of documents that she described as “pattern and practice” evidence. The types of records sought primarily consisted of reports showing how other employees were given their market assignments and reassignments and how they performed in their sales positions. Pacific Bell produced a limited number of documents in response to these requests. The trial court denied Markray’s requests for further documents on the grounds that they were overbroad and not likely to lead to the discovery of admissible evidence. In particular, the trial court agreed with Pacific Bell’s argument that “pattern and practice” is a term of art in employment law that refers to class action claims, and that Markray had not alleged any class action or disparate impact claims in her complaint.
The specific categories of documents sought were as follows: (1) job requisitions posted for the Los Angeles office from 2002 to 2005; (2) internet sales reports for all Southern California premise sales representatives from 2002 to 2004; (3) all campaign tables and allocation data related to initial market assignments for 32 sales campaigns from 2001 from 2006; (4) all market reassignment forms and other documents related to 52 sales campaigns from 2001 to 2006; (5) all campaign personnel change forms and other documents related to any Southern California sales employee from 1999 to the present; (6) all DSA authorization forms for Southern California offices from 1995 to the present; (7) all documents related to Sandoval’s transfer to the Los Angeles office; (8) all branch cumulative performance reports for Southern California offices from 1995 to the present; and (9) all workflow performance reports for Southern California sales employees from 2002 to the present.
We agree that to the extent Markray is asserting that the records sought are relevant to supporting a disparate impact or class-based disparate treatment theory, she is not entitled to such discovery because her complaint only alleged individual disparate treatment claims. “‘Disparate treatment’ is intentional discrimination against one or more persons on prohibited grounds. [Citations.]” (Guz, supra, 24 Cal.4th at p. 354, fn. 20.) “‘[D]isparate impact’,” on the other hand, refers to “a facially neutral employer practice or policy... [that] in fact had a disproportionate adverse effect on members of the protected class. [Citations.]” (Ibid.) Although disparate treatment claims typically arise in individual discrimination actions, plaintiffs in class actions may rely on a disparate treatment theory in alleging that an employer engaged in a “pattern or practice” of systematic discrimination toward a particular class. (Alch v. Superior Court (2004) 122 Cal.App.4th 339, 378-379.) Such class-based disparate treatment claims are commonly referred to as “pattern or practice” claims. (Id. at p. 378.)
Markray did not, however, plead any class-based disparate treatment claims. Nor did she plead a disparate impact theory by alleging that Pacific Bell had a facially neutral policy or practice that disproportionally affected members of her protected class. Instead, her claims were based on the theory that Pacific Bell intentionally treated Markray differently in the terms and conditions of her employment. Accordingly, Markray’s argument that “pattern and practice” evidence can be used to establish a disparate impact theory is insufficient to show that the requested documents were relevant to her claims.
Notwithstanding Markray’s characterization of the discovery sought as “pattern and practice” evidence, she is correct that comparative evidence may be relevant in an individual disparate treatment case. For example, pretext may be proven through comparative evidence that the employer treated similarly situated employees in similar circumstances more favorably than the plaintiff. (Guz, supra, 24 Cal.4th at pp. 367-369; Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th 803, 816-817.) “At least three types of evidence can be used to show pretext: (1) direct evidence... such as statements or admissions, (2) comparative evidence, and (3) statistics. [Citation.]” (Iwekaogwu v. City of Los Angeles, supra, at p. 816.) However, not every type of comparative evidence is relevant to establishing pretext. To be probative, statistical or comparative data must be directed at showing disparate treatment between employees that are “similarly situated” to the plaintiff in all relevant respects. (Id. at p. 817 [“comparative evidence of pretext... [is] evidence that [plaintiff] was treated differently from others who were similarly situated”]; Guz, supra, at p. 369 [plaintiff in discrimination case failed to show pretext through statistical data on employees that were not “similar or comparable”].)
In this case, Markray’s discovery requests were not tailored toward obtaining comparative evidence on “similarly situated” employees. While it is true that documents evidencing other employees’ market assignments and sales performance could have some relevance to Markray’s discrimination claims, the scope of her requests was simply too far-reaching to constitute comparative evidence. Markray did not limit her requests to employment actions involving the same decision-makers, to sales representatives in the same office or branch, or to sales campaigns on which Markray worked. Instead, she sought work assignment and performance related documents for all sales employees in all Southern California offices dating as far back as 1995. Markray provided no explanation as to why such extensive data was relevant to her discrimination claims, nor did she propose narrowing her requests to seek comparative data on similarly situated employees. Under these circumstances, the trial court did not abuse its discretion in denying Markray’s motion to compel further responses to her discovery requests.
DISPOSITION
The judgment is affirmed. Pacific Bell shall recover its costs on appeal.
We concur: PERLUSS, P. J., JACKSON, J.