Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CV039326
Premo, J.
I. Introduction
Plaintiff Carol Miranda was an executive administrative assistant hired by defendant Infineon Technologies North America, Inc. (Infineon) through a temporary staffing agency. During her entire tenure at Infineon, from 1999 through 2004, plaintiff was always classified as a temporary employee. Plaintiff had expected that her position would be made a regular, full-time position and her boss, Thomas Tobin, had promised to do that, but he never did. Plaintiff claimed that Tobin’s failure to convert her to “permanent” status was due to the fact that she was diagnosed with cancer about six months after she first began working for him.
Plaintiff sued Infineon for employment discrimination under the California Fair Employment and Housing Act (FEHA). (Gov. Code, § 12900 et seq.) The trial court granted Infineon’s motion for summary judgment and plaintiff appeals from the ensuing judgment. We shall affirm.
Plaintiff initially sued both Infineon and Tobin for age discrimination, medical condition/physical disability discrimination, promissory estoppel, fraud, and negligent misrepresentation, and demanded punitive damages. A succession of demurrers and motions to strike limited the case to a claim for age and medical condition/physical disability discrimination against Infineon. Plaintiff did not oppose Infineon’s motion for adjudication as it pertained to the age discrimination claim. Therefore, we are concerned on appeal only with the trial court’s summary adjudication of the cause of action for medical condition/disability discrimination.
II. Legal Framework
It is unlawful for an employer to discriminate against an employee based upon his or her mental or physical disability if the employee is able to perform the fundamental duties of the position with or without reasonable accommodation. (Gov. Code, § 12940, subd. (a).) In order to prevail on a disability discrimination claim, an employee must establish that he or she suffers from a disability and is qualified to perform the duties of the position, and the employer has taken an adverse employment action due to the employee’s disability. (Deschene v. Pinole Point Steel Co. (1999) 76 Cal.App.4th 33, 44.)
In the context of a summary judgment or summary adjudication proceeding, where the employer is the moving party, the employer has the initial burden. (Code Civ. Proc., § 437c, subd. (p).) The employer must present admissible evidence showing either that one or more elements of plaintiff’s prima facie case is lacking or that the adverse employment action was based on legitimate, nondiscriminatory factors. (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203.) The burden then shifts to the plaintiff to produce “substantial evidence that the employer’s stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination.” (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1005.)
In her brief on appeal, plaintiff repeatedly argues that her initial burden is not onerous but is so minimal that, without regard to Infineon’s evidence, very little evidence is needed to carry it. While this may be so at trial, more is needed in the context of these summary judgment proceedings. If, at trial, plaintiff were to submit evidence to support each element of her prima facie case, she would be entitled to a presumption of discrimination. Absent evidence in rebuttal, plaintiff would be entitled to judgment in her favor so long as the trier of fact believed her. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355 (Guz).) But in the context of a summary judgment motion, where the employer has set forth competent, admissible evidence of its reasons, unrelated to discriminatory intent, why the employer took the adverse actions alleged, “the employee has the burden to rebut this facially dispositive showing by pointing to evidence which nonetheless raises a rational inference that intentional discrimination occurred.” (Id. at p. 357.) “Accordingly, the great weight of federal and California authority holds that an 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.” (Id. at p. 361.)
The difference between proving a prima facie case of discrimination and rebutting a defendant’s proof of nondiscriminatory reasons for its action, was well described by our Supreme Court in Guz, supra. Adopting the reasoning of Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S. 133, 148-149, which involved a motion for judgment as a matter of law, Guz explained that even where the plaintiff has presented a legally sufficient prima facie case and has also adduced some evidence that the employer’s proffered innocent reasons are false, “the fact finder is not necessarily entitled to find in the plaintiff’s favor. . . . ‘Certainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant’s explanation, no rational factfinder could conclude that the action was discriminatory. For instance, an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer’s decision, or if the plaintiff created only a weak issue of fact as to whether the employer’s reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred. [Citations.] . . . [¶] Whether judgment as a matter of law is appropriate in any particular case will depend on a number of factors. These include the strength of the plaintiff’s prima facie case, the probative value of the proof that the employer’s explanation is false, and any other evidence that supports the employer’s case.’ ” (Guz, supra,24 Cal.4th at pp. 361-362 .)
Plaintiff points to the trial court’s ruling on Infineon’s demurrer as having conclusively held that plaintiff met her prima facie case. It is irrelevant that the trial court concluded that plaintiff’s allegations would support a prima facie case. At the summary judgment stage we are concerned with facts.
On appeal from summary judgment, our review is de novo. (Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1039.) We apply exactly the same process as the trial court. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860.) After identifying the elements of plaintiff’s prima facie case of discrimination as contained in the pleading, we look first at the moving party’s evidence to see if the moving party has established facts that negate one or more elements of plaintiff’s case or establish a complete defense. If so, we then determine whether plaintiff has set forth specific facts “to show that a triable issue of one or more material facts exists.” (Code Civ. Proc., § 437c, subd. (p)(1); Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 582-583.) We liberally construe the evidence in support of the opposing party and resolve all doubts in favor of that party. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.)
We shall incorporate the material facts as set forth in the moving and responding papers into the analysis that follows.
A. Allegations of the First Amended Complaint
In or around April 1999, when plaintiff was first hired to be Tobin’s executive administrative assistant, Tobin told her that the position would be “going to ‘permanent status’ by the end of the fiscal year, no later than October 3, 1999.” If plaintiff had a regular position, she would have been entitled to paid vacation, bonuses, stock options, and health and welfare benefits that were not available to her as a temporary employee.
October 3, 1999, passed and plaintiff’s position remained temporary. On October 7, 1999, she was diagnosed with breast cancer. For the next four months plaintiff was on a medical leave of absence, returning to work for Tobin in February 2000. Plaintiff continued to work for Tobin as a temporary employee until June 2002, when she had a recurrence of her cancer. She took another medical leave and returned in January 2003. Tobin repeatedly assured her that he would make her position “permanent.”
Plaintiff’s position was never converted to a regular, full-time position and she continued to work for Infineon as a temporary employee until she resigned in August 2004. Infineon’s failure to make her a “permanent” employee was done with the intent to discriminate against her on account of her cancer.
B. Infineon’s Material Facts
Infineon’s position is summed up by its material fact No. 7, which states that during plaintiff’s tenure, “no open ‘permanent’ position existed into which Infineon could have hired Plaintiff as an Executive Assistant in the Quality Management Group.” In support, Infineon produced the following evidence.
Tobin was director of Infineon’s power semiconductor group. Plaintiff transferred into Tobin’s group in April 1999. At the time, Tobin could not hire her as a permanent employee because the “regular headcount” slots in the group were already filled. ”Regular headcount” refers to the limit upon the number of permanent full-time employees designated for the various departments within the company. According to company policy, a manager could not hire a permanent employee unless there was an open regular headcount position available. If there was a regular headcount position available, an “open requisition” for the position would be posted on the company intranet where any temporary or regular employee could view it. If an employee was interested in applying for the position, the employee would have to complete an employment application for the open requisition.
Plaintiff worked for Tobin in the power semiconductor group as a temporary employee until October 7, 1999, when she was diagnosed with cancer. Beginning in November 1999, while plaintiff was on medical leave, Infineon began reorganizing the power semiconductor group and plaintiff’s position was entirely eliminated. Tobin accepted a position as senior director of the quality management group, to begin on January 1, 2000.
The quality management group had 13 regular headcount positions, all of which were filled when Tobin became the senior director. There was a regular headcount position for an administrative assistant filled by Infineon employee Dianne Parker. Parker, however, was on a medical leave herself. A temporary employee had been serving as administrative assistant for the group. Tobin terminated the temporary employee in order to make room for plaintiff to return as his executive administrative assistant following her medical leave in February 2000. Parker never returned to work in the quality management group.
For each of the next two fiscal years (2000/2001 and 2001/2002), Tobin sought approval from Infineon’s top management to increase the regular headcount for the quality management group to include an executive administrative assistant position for plaintiff. In so doing, Tobin never informed the persons from whom he sought approval that plaintiff had had cancer. If Tobin had received approval for the position during these years, Tobin would have hired plaintiff into a regular, full-time position. The approval, however, was not forthcoming. In mid-2001 Infineon adopted a plan to reduce the company’s overall headcount. The program was adopted following a downturn in the technology industry that began in the first part of 2001. That headcount reduction program continued through approximately March 2003.
Infineon’s fiscal year runs from October 1 through September 30.
During fiscal year 2001/2002, three regular, full-time employees left the quality management group. One of these was Dianne Parker, who was transferred out of the group. In addition, Tobin was given three additional regular headcount positions for fiscal year 2002/2003. All six of these open positions were filled by persons who had transferred into the quality management group during the 2001/2002 fiscal year. The transferees were all regular, full-time employees prior to their transfer. Four of the transferees came in as the result of company reorganization. One replaced quality management director Len Gibbons, who had retired around December 2001. And the sixth, Stephan Tente, transferred in around April 2002 to be a logistics QA engineer. Thus, Tobin still did not have a sufficient headcount to give plaintiff a regular, full time position.
During plaintiff’s six-month leave from June 2002 until January 2003, Tobin employed Pam Sarkisian, followed by Jeanette Eaton, to perform plaintiff’s duties. Both employees were temporary and both were informed that the job was being saved for plaintiff. Tobin terminated Ms. Eaton when plaintiff was ready to return to work. Plaintiff was out of the office on another occasion and Tobin employed temporary employee Todd Rogers to fill in for her. Rogers’s employment was also discontinued to allow plaintiff to return to her position.
Prior to the start of fiscal year 2003/2004, Tobin had become concerned that plaintiff may have been falsifying her timecards by claiming compensation for hours she had not actually worked. Because of this, Tobin did not seek a permanent position for plaintiff for the upcoming fiscal year..
During the 2002/2003 fiscal year, three more regular, full-time employees transferred into the quality management group from elsewhere in the company. Tobin was granted an additional three regular headcount positions for fiscal year 2003/2004 to accommodate these transferees. He was not given any other regular headcount positions so that even if he had wanted to give plaintiff a regular position he did not have sufficient regular headcount positions to do so.
Over the period of time during which plaintiff worked for Infineon, the company hired a total of 20 regular, full-time executive administrative assistants. Of those 20, four had begun as temporary employees. All 20 had applied for and were hired into existing, regular, full-time positions. Plaintiff never applied for any open regular full-time positions with the company.
Tobin left Infineon in April 2004. Plaintiff resigned in August 2004 due to differences with her new supervisors. After plaintiff resigned, the company employed only Surabi Nagrath and Marina Maxfield as executive administrative assistants to the quality management group. Both were employed as temporary employees.
The foregoing is sufficient to satisfy Infineon’s burden to produce evidence to prove that it did not discriminate against plaintiff and that it had an innocent reason for the failure to hire her into a regular full-time position. As Tobin declared, he tried to obtain a regular position for plaintiff but was never given sufficient regular headcount positions to do so. Since Tobin never told the upper level managers about plaintiff’s cancer, their refusal to approve an additional position cannot have been discriminatory. The fact that the company instituted a program to reduce the overall regular headcount during the economic downturn that began in 2001 corroborates Tobin’s assertion that budget constraints were the real reason he could not get plaintiff the position she wanted. And finally, although other regular full-time positions for executive administrative assistants did come open during plaintiff’s tenure at Infineon, plaintiff never applied for any of those positions.
C. Plaintiff’s Opposition
1. Evidence of Discrimination
Plaintiff purported to show that Infineon refused to convert her to a permanent position because of her medical condition. Plaintiff had no direct evidence of this discriminatory intent. The circumstantial evidence she produced was the temporal relationship between the date upon which she had originally been promised a permanent job and the date she was diagnosed with cancer. Plaintiff produced a statistical analysis that showed that, of 15 employees hired as temporary workers during plaintiff’s tenure at Infineon, she was the only one who remained temporary for more than a year and she was the only one who was known to have cancer. Plaintiff’s expert opined that, given the history of these 15 employees, the probability that plaintiff would have continued in temporary employment for five years was between 2.8 percent and 0.003 percent and, therefore, the length of her tenure as a temporary employee was “probably not due to chance.” Plaintiff also pointed to Tobin’s remark at deposition that he was “unhappy” about the fact that Dianne Parker, the employee who occupied a regular headcount position as an administrative assistant within the quality management group, was out on an extended medical leave. According to plaintiff, the foregoing raises the inference that she was denied a regular position because of her cancer. The inference is weak, at best.
Of the preceding three bits of evidence, only the evidence relating to the timing between plaintiff’s cancer diagnosis and the time she was promised a regular position even arguably raises an inference of discriminatory intent. As plaintiff points out, in retaliation cases the temporal proximity between the employee’s protected conduct and the employer’s adverse action can raise the inference of retaliation. (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 69.) We do not doubt that, in a proper case, the same inference may be found in discrimination cases. Here, however, the inference would have to be drawn from the fact that after Tobin initially broke his promise to give plaintiff a regular full-time position by October 3, 1999, he learned that she had cancer and that knowledge was the basis for his later failure to obtain a regular position for her. Since Tobin had already failed to keep his initial promise before he ever learned about plaintiff’s medical condition, the inference that his later failure was due to an intent to discriminate is not very strong. It is certainly not strengthened by the undisputed fact that Tobin never told the upper level managers responsible for allocating the regular headcount positions that he was seeking a position for a person who had cancer.
Plaintiff’s other evidence, even liberally interpreted, does not support her case. It is true, as plaintiff argues, that none of the other 14 persons employed as temporary executive administrative assistants from 1999 to 2004 remained temporary for more than year and, as far as we know, none of them had cancer. But this is not evidence that plaintiff was discriminated against on account of her condition. Of the 14 temporary employees, only five obtained regular full-time positions and that was after they had applied for available positions posted on the company intranet. The remaining nine temporary employees either resigned or were terminated, and at least two of those were let go to make room for plaintiff. Thus, none of the 14 temporary employees was simply converted to regular full-time positions as plaintiff claims Tobin should have done for her.
Kimberly Chong applied for and was hired as an administrative assistant in the automotive, industrial and manufacturing group. Elaine Gonzales applied for and was hired as an administrative assistant in the legal department. Candace McClure applied for and was hired as an administrative assistant in the marketing communications group. Denise Todd applied for and was hired as an administrative assistant to the company president. And Patricia Battersby applied and was hired as an assistant product manager.
Relying upon the foregoing evidence, plaintiff’s expert concluded that plaintiff’s lengthy tenure as a temporary executive administrative assistant was probably not due to chance. We have no quarrel with that conclusion. But the expert did not say that the length of plaintiff’s temporary employment was due to cancer. Indeed, the evidence would not have supported such a conclusion. If there is an inference to be drawn here, it is that plaintiff was treated more favorably than most of the other temporary employees. The record unequivocally reveals that Tobin valued plaintiff’s work and treated her very well. Following her first medical leave, Tobin personally asked plaintiff to return. He personally asked her back again, after the second leave, and he replaced no fewer than three other temporary employees to make room for her. Thus, the evidence pertaining to the length of time the other temporary executive administrative assistants remained in temporary positions provides no support for plaintiff’s claim of discrimination.
Infineon argues that, in light of Tobin’s favorable treatment of plaintiff, the “same actor inference” should apply. The inference to which Infineon refers is the inference of nondiscrimination that arises “where the same actor is responsible for both the hiring and the firing of a discrimination plaintiff.” (Bradley v. Harcourt, Brace and Co. (9th Cir. 1996) 104 F.3d 267, 270.) Although Bradley involved hiring and firing, the court later applied its logic to a case in which the plaintiff was not actually fired but merely offered a less desirable job assignment. (Coghlan v. American Seafoods Co. LLC. (9th Cir. 2005) 413 F.3d 1090, 1096.) We do not find the inference applicable in this case, however, since plaintiff is alleging that her employer excluded her, on account of her medical condition, from a regular position in which she would have been entitled to benefits that were unavailable as a temporary employee. The mere fact that Infineon was willing to hire her as a temporary employee without those benefits does not tend to prove that it did not discriminate against her in failing to place her in a benefited position. (See id. at fn. 9.)
Finally, plaintiff’s evidence that Tobin was “unhappy” about the Dianne Parker situation is not evidence of his intent to discriminate against plaintiff. Parker had been an administrative assistant to the communications group. Tobin was unclear whether Parker had ever served as the administrative assistant to the quality management group, but by the time Tobin came to the group, Parker’s position was included within the quality management group and Parker was out on medical leave. Tobin could not hire into the position, apparently because Parker still held it. He had asked people in the human resources department about making the position available to him and all he was told was that Parker was out on leave and no one knew when they could get the situation resolved.
Plaintiff’s claims that Tobin’s comment that he was “unhappy” with the situation shows that “he would never permit a ‘Dia[n]ne Parker sequel’ by assigning regular employee headcount to someone who was susceptible to missing significant periods of work due to medical leave.” The inference, as plaintiff states it, is illogical. If Tobin was concerned about his employees missing significant periods of work, he would not have rehired plaintiff twice as he did. More to the point, plaintiff entirely mischaracterizes Tobin’s testimony, which we have set forth verbatim in the margin. As shown by the transcript of those proceedings, Tobin was “unhappy” with the lack of response from the human resources department and his inability to get Parker’s position freed up so that he could hire into it.
“Q. The next sentence says, ‘In September of 2000 Tobin told plaintiff that she would take the place of permanent employee Dian[n]e Parker as soon as Ms. Parker’s situation was over,’
Thus, the only evidence plaintiff produced to show discriminatory intent was the fact that, after six months as executive administrative assistant to Tobin she was diagnosed with cancer and thereafter, even though Tobin promised to find a regular position for her, he never did. This evidence of discriminatory intent is so tenuous that, in light of Infineon’s proffered legitimate reasons, plaintiff’s evidence of pretext would have to be highly probative in order to raise a triable issue. It is not.
2. Plaintiff’s Evidence of Pretext
Plaintiff attempted to show that Infineon’s stated reasons were pretextual by showing that regular full-time positions in the quality management group became available and that Tobin could have given one of those to her. During fiscal year 1999/2000, quality management employee Donnie Sales transferred out of his position in the warehouse, leaving an open position there. He was replaced many months later by Bienvenido Contreras who left during fiscal year 2000/2001, presumably opening up the position again. Although Tobin had stated that Dianne Parker’s position did not become available until 2001, when she was transferred out of the quality management group, when it was then filled by one of the regular employees transferring into the group that fiscal year, plaintiff obtained a document dated August 28, 2000, in which Tobin stated, “Parker, Dianne no longer works for Infineon, but her requisition remains with us and will be filled in the next fiscal year.” According to plaintiff, the foregoing raises a triable issue of fact with respect to Infineon’s undisputed fact No. 7, which was that during plaintiff’s tenure, the quality management group never had an available regular headcount position for an executive administrative assistant into which plaintiff could have been hired. Plaintiff claims that if Tobin really wanted to make her permanent he would have converted one of these open positions for her.
Infineon objected to a number of documents plaintiff produced in support of her opposition but, citing Biljac Associates v. First Interstate Bank (1990) 218 Cal.App.3d 1410, the trial court did not rule upon most of the objections. We shall assume the objections were overruled.
Evidence of other open positions is not helpful to plaintiff. In order to raise a triable issue as to the employer’s credibility the employee must set forth specific facts demonstrating “ ‘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.” ’ ” (Hersant v. Department of Social Services, supra,57 Cal.App.4th at p. 1005.) We fail to see how the existence of an open position for a warehouse worker or logistics engineer is inconsistent with Tobin’s explanation that he did not have a regular position for his administrative assistant. It is true that plaintiff’s documents show that Tobin wrote in August 2000 that Parker “no longer works for Infineon.” This suggests that Tobin might have thought Parker was no longer employedby Infineon. On the other hand, it could merely reflect Tobin’s recognition that Parker was no longer working there because she was out on leave. Either way, it does not establish that Parker’s position was actually available at that time. Indeed, Tobin’s statement that Parker’s “requisition remains with us and will be filled in the next fiscal year,” which was to begin on October 1, 2000, is consistent with his statement that he intended to obtain a regular full-time position for plaintiff that year. As Tobin later explained, Parker’s position did not come open until November 2001, when she was transferred out of the quality management group and, by then, there was a hiring freeze in effect and the position was needed for other regular full-time employees. Plaintiff produced no evidence to show that this explanation was false.
Plaintiff also claims that since Parker had held a regular position as administrative assistant in the quality management group prior to plaintiff’s arrival, there is a triable issue as to Infineon’s material fact No. 11, which was that Infineon had “never created regular headcount for a regular, full-time Executive Assistant to support the Director of Quality, either before or after Plaintiff’s resignation.” The dispute is immaterial. What is material, and what is not disputed, is that the position was never available as an administrative assistant position during the time plaintiff worked for Infineon.
Plaintiff also claims Tobin’s later concern with the timecard issue was pretextual. Plaintiff does not dispute that Tobin was concerned about the manner in which she filled out her timecards. She explained that she believed she could round her time to the nearest 30 minutes. Thus, if she started work at 10:15 a.m., she would note her start time as 10:00 a.m. Plaintiff admits that she and Tobin had “several” disputes about this practice. Nevertheless, she points out that he did not fire her and even continued to give her benefits, such as paid time off, to which she was not entitled. It follows, she maintains, that Tobin’s stated reason for ceasing his efforts to obtain a permanent job for her was untrue. Even if plaintiff’s evidence makes Tobin’s stated reason illogical, this conflict is also immaterial because Tobin stated as well that, even if he had wanted to offer plaintiff a regular position for the 2003/2004 fiscal year, he did not have one to give her.
In sum, plaintiff produced no evidence to conflict with Infineon’s material fact No. 7, which was that during plaintiff’s tenure, “no open ‘permanent’ position existed into which Infineon could have hired Plaintiff as an Executive Assistant in the Quality Management Group.” This undisputed fact shows that Infineon did not discriminate against plaintiff and that it had a legitimate, nondiscriminatory reason for not giving her a regular full-time position as executive administrative assistant to the quality management group.
D. Failure to Hire
Plaintiff argues that Infineon’s approach to this case as a failure-to-hire case misconstrues the allegations of her complaint. In a discrimination case alleging failure to hire or promote, the plaintiff generally has to prove that the position he or she sought was available. (McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802.) Plaintiff maintains that this is not a failure-to-hire case because, under California law, Infineon would be considered her employer, along with the employment agency through which she obtained the position. (See Mathieu v. Norrell Corp. (2004) 115 Cal.App.4th 1174, 1183.) Since plaintiff was already an employee, she argues that she merely needed to show that Infineon subjected her to an adverse employment action because of her disability. (Deschene v. Pinole Point Steel Co., supra,76 Cal.App.4th at p. 44.) The adverse action she alleges is the failure to “convert” her temporary position into a regular, full-time position, which would have entitled her to benefits she did not receive as a temporary employee. Thus, she argues, the uncontroverted fact that there was no regular full-time position available for an administrative assistant in the quality management group is insufficient to defeat her claim.
The problem with plaintiff’s argument is that in order to “convert” a temporary position into a regular, full-time position, there had to be a regular headcount position available. Indeed, plaintiff designates as undisputed Infineon’s material fact No. 9: “By Infineon’s policy, in order for a temporary employee to be converted to ‘permanent’ status, ‘regular headcount’ for the position must already exist.” Thus, the nonexistence of an open position defeats her claim.
IV. Disposition
The judgment is affirmed.
WE CONCUR: Rushing, P.J., Elia, J.
“Did you make any kind of a statement like that to [plaintiff] in September of 2000?
“A. I don’t recall making a statement like this, but I do recall that we did have this person showing up on head count [sic] as another individual had shown up, but there was something--we could not do anything with those head counts [sic]. [¶] . . . [¶]
“Q. . . . Even though Ms. Parker was showing up on head count [sic] for your group, if you had an additional regular head count [sic] available and you were successful in reallocating it for the administrative assistant position, then you could have hired [plaintiff]?
“A. Yes.
“Q. So Dian[n]e Parker’s situation was something that you inherited when you came into that group in January of 2000, whatever that situation?
“A. I inherited a few situations, yes.
“Q. What was the Dian[n]e Parker situation?
“A. I wasn’t too clear on it either, other than when she was in the communications groups as the admin for Tom Senhauser, the vice president of communications up through 1998, that head count [sic] rolled over to Len Gibbons [of quality management]. Whether or not she supported Len Gibbons, I couldn’t say, that is, if she was employed, but she had left--she was on a medical leave. Dian[n]e Parker was on a medical leave. [¶] . . . [¶]
“Q. But you were aware that for whatever reason, the head count [sic] was remaining in your group certainly once you came in?
“A. Yes.
“Q. Had you ever talked to anybody with Infineon about that?
“A. I tried to get a straight answer on it, and I never did. There was also another guy by the name of Tom Pastore I believe who was also in the head count [sic], and I never got a straight answer out of it but-- [¶] . . . [¶]
“Q. What, if anything, did anybody at HR tell you?
“A. She was on leave and that we couldn’t use that.
“Q. Did you inquire how long this would have to last for?
“A. Yes, I did.
“Q. What did they tell you?
“A. They just said, ‘She’s on leave. We don’t know when we can get this resolved.’
“Q. Is this something that you were not happy about as the manager of that group?
“A. I was unhappy with a lot of things I wasn’t able to get done, and that was one of them, yes.”