Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. CIVRS800753. Keith D. Davis, Judge.
Law Offices of Michael T. Carr, Michael T. Carr and Nathan J. Wagner for Plaintiff and Appellant.
Farella Braun & Martel, Douglas E. Dexter and Diego F. Acevedo for Defendant and Respondent.
OPINION
RICHLI J.
After plaintiff Fernando Ornelas had worked for defendant Nestlé Waters North America, Inc. (Nestlé) for 29 years, he was terminated, supposedly for being away from his work station while clocked in and thus falsifying his timecard. Ornelas filed this action, asserting age discrimination and other claims. The trial court granted summary judgment against him. It ruled that he could not prove a prima facie case that he had been terminated based on age; it also ruled that Nestlé had proven a legitimate, nondiscriminatory reason for the termination.
Ornelas appeals. He argues, among other things, that he introduced evidence sufficient to raise a triable issue of fact as to whether Nestlé’s assertion that he was fired for being away from his work station was pretextual. We need not reach the issue of pretext, however, because Ornelas’s claims fail for a more fundamental reason — Nestlé disproved a prima facie case of unlawful discrimination. Accordingly, we will affirm.
I
FACTUAL BACKGROUND
A. Background.
Nestlé sells bottled water. Ornelas first went to work for Nestlé in 1977, when he was 23, as a bottler. By 2006, when he was 51, he was a production forklift driver (driver). He had been a driver for over 10 years. He had no record of prior discipline.
Nestlé’s Ontario plant had multiple assembly lines, each dedicated to bottling and packaging a particular bottle size and case size. At the end of each assembly line, there was a “palletizer” — a machine that automatically stacks cases onto pallets. If the palletizer malfunctioned, the entire assembly line got backed up.
Each driver had primary responsibility for a particular assembly line but might cover another driver’s line when that driver was on a break. Drivers’ duties included using a forklift to move finished pallets to trucks or to the warehouse, as well as maintaining their assigned assembly lines, including their palletizers.
Eddie Hartfield was the manager of the Ontario plant. Humberto Gomez was Ornelas’s supervisor. In early 2006, other drivers complained to both Hartfield and Gomez that Ornelas was taking more time away from his work station than his breaks allowed. Under Nestlé’s policy, employees were required to take a 30-minute lunch break and two 15-minute rest breaks; breaks could not be taken back to back. Gomez cautioned Ornelas that he should come back to his work station promptly after breaks.
In April 2006, Nestlé terminated a bottler, James Shelton, aged 57, for falsifying quality records. Other employees complained that Shelton should not have been terminated because of his length of service with Nestlé. Ornelas testified that he told Hartfield, “[E]verybody knows that you fire[d] him because of his age.” Hartfield got angry and walked away without saying anything.
The trial court sustained an objection to Ornelas’s testimony that Hartfield was angry as speculative, conclusory, and an improper opinion by a lay witness.
B. August 17, 2006: Ornelas Is Suspended.
Every time a driver moved a pallet, he or she had to scan a tag on it into a tracking system. On August 17, 2006, Ornelas did not scan any pallets between 10:27 and 10:53, when he clocked out for lunch (pre-lunch gap). He clocked back in after lunch at 11:21 a.m., but he did not physically return to his work station until 11:40 a.m. (post-lunch gap).
The evidence regarding these gaps was disputed.
1. The Pre-Lunch Gap.
According to Ornelas, in the 26-minute gap between his last pallet scan and the beginning of his lunch break, he was working on the palletizer, adjusting the conveyor belt. He testified that Hartfield, the plant manager, even came by for five or ten minutes and saw him doing this.
According to Hartfield, however, around 10:25 a.m., he noticed that Ornelas’s palletizer was malfunctioning, scattering cases around the floor. He started trying to fix the palletizer himself. Ornelas was nowhere to be seen. Right around 10:53 a.m., however, he did see Ornelas in the distance, walking over to the time clock to clock out for lunch.
Around the end of Ornelas’s 30-minute lunch break, Hartfield started asking other employees where Ornelas was. Gomez, Ornelas’s supervisor, was asked to find him. Gomez asked several of Ornelas’s coworkers where he was. According to Gomez, they told him that Ornelas’s extended absence was typical — that “this was just ‘Fernando being Fernando.’”
Also according to Gomez, one coworker reported that he had seen Ornelas in the break room and had told him that management was looking for him; Ornelas replied that he had been working at Nestlé so long “that he was entitled not to respond to management’s inquiry....” Ornelas denied having any such conversation with anyone.
2. The Post-Lunch Gap.
In the 19-minute gap between the end of his lunch break and his return to his work station, Ornelas admittedly took his afternoon rest break. He testified that, despite Nestlé’s stated policy, drivers routinely combined their lunch breaks with their afternoon rest breaks. In the spring of 2006, a supervisor, Sam Serrano, had given him permission to do so.
Employees were required to clock out for lunch breaks, which were unpaid, but not for rest breaks, which were paid.
Later that day, at the end of his shift, Ornelas was suspended.
C. August 22, 2006: Ornelas Is Terminated.
The next day, August 18, 2006, Hartfield discussed Ornelas’s absence with a group of other managers. He testified that they recommended he “stay consistent with past practice.” According to Hartfield, “Past practice for... falsifying timecards was termination.” Thus, he took them to mean that Ornelas should be terminated. Moreover, he agreed with this decision.
Accordingly, on August 22, 2006, Ornelas was terminated. According to the written notice of termination, he had been “gone from [his] workstation for an extended amount of time”; as a result, he was being terminated for “falsif[ying]... lunch break records and stealing time from the company.”
The next day, August 23, 2006, Ornelas appealed his termination. John Martin, the warehouse manager, and Monica Diaz, the human resources manager, handled the appeal. When they interviewed Ornelas, regarding the pre-lunch gap, all he told them was that Hartfield had been at the palletizer and had seen him go to lunch. Regarding the post-lunch gap, he said that he believed he was entitled to combine his lunch break and rest break because other drivers did so routinely.
They interviewed Serrano, who denied giving anyone permission to combine a lunch break with a rest break. They also interviewed other drivers. Two of them said that, in the past, drivers had commonly combined the lunch break with a rest break. However, this had changed; currently, drivers were combining their rest breaks into a single 30-minute rest break instead. One driver admitted knowing that they were supposed to take all the breaks separately, but he added, “[N]o one really does that.”
Martin sent Diaz an email stating that, because other drivers appeared to be breaking another rule (prohibiting two drivers from taking lunch at the same time), he was “prepared to say that we improperly terminated” Ornelas. Later, however, Martin and Diaz discussed the matter further. In a letter dated September 28, 2006, Martin and Diaz denied the appeal.
Nestlé did not hire a new driver to replace Ornelas. Instead, it allowed the current drivers to bid for Ornelas’s line. The winning bidder was 28 years old. One of the other drivers on the same shift was 55; another was 58. The winning bidder’s previous line was then combined with another line.
As of August 2006, when Ornelas was terminated, the average age of the employees at the plant was 42. The average age of employees involuntarily terminated from the plant between 2005 and 2007 was under 40. Other employees terminated in 2005 and 2006 for an unexcused absence from their work station while clocked in included a 27 year old, a 29 year old, a 33 year old, and a temporary employee in her 20’s.
II
PROCEDURAL BACKGROUND
In 2008, Ornelas filed this action against Nestlé, asserting causes of action for age discrimination, retaliation, wrongful termination in violation of public policy, and intentional infliction of emotional distress.
John Martin, originally also named as a defendant, was later dismissed.
Nestlé filed a motion for summary judgment. With regard to the causes of action for age discrimination and retaliation, it argued that Ornelas could not establish a prima facie case of discrimination, or, alternatively, that it could establish, beyond a triable issue of fact, that it terminated him for a legitimate, nondiscriminatory reason. The trial court granted the motion and entered judgment accordingly.
III
DISCUSSION
A. The Summary Judgment Standard of Review
“‘A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law.’ [Citation.]” (Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1250.)
“[W]e independently examine the record in order to determine whether triable issues of fact exist.... [Citation.]” (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64.) “[W]e view the evidence in the light most favorable to plaintiff as the losing party. [Citation.] In this case, we liberally construe plaintiff’s evidentiary submissions and strictly scrutinize defendant’s own evidence, in order to resolve any evidentiary doubts or ambiguities in plaintiff’s favor. [Citation.]” (Ibid.)
B. Proof of Unlawful Discrimination Claims.
The Fair Employment and Housing Act prohibits an employer from terminating or otherwise discriminating against an employee based on the employee being 40 or older. (Gov. Code, §§ 12926, subd. (b), 12940, subd. (a).) It further prohibits an employer from terminating an employee based on the employee’s opposition to prohibited discrimination. (Gov. Code, § 12940, subd. (h).)
1. The burden-shifting framework.
“... California has adopted [a] three-stage burden-shifting test... for trying claims of discrimination, including age discrimination, based on a theory of disparate treatment. [Citations.]” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354, fn. omitted.) “At trial, the... test places on the plaintiff the initial burden to establish a prima facie case of discrimination.” (Id. at p. 354.) “If... the plaintiff establishes a prima facie case, a presumption of discrimination arises. [Citations.]” (Id. at p. 355.)
“Accordingly,... 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.] In an appropriate case, evidence of dishonest reasons, considered together with the elements of the prima facie case, may permit a finding of prohibited bias. [Citations.] The ultimate burden of persuasion on the issue of actual discrimination remains with the plaintiff. [Citations.]” (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at pp. 355-356.)
The same burden-shifting framework also applies to a retaliation claim asserted on a disparate treatment theory. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)
2. Application of the framework in the context of a motion for summary judgment.
So far, we have been talking about the burden-shifting framework in the context of a trial. A motion for summary judgment, however, is governed by its own somewhat different burden-shifting framework. A defendant moving for summary judgment has the burden of proving that the cause of action has no merit. (Code Civ. Proc., § 437c, subds. (a), (c), (p)(2).) “Once the defendant... has met that burden, the burden shifts to the plaintiff... to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).)
In an employment discrimination case, the employer may move for summary judgment on the ground that it had a legitimate, nondiscriminatory reason for the adverse employment action. In that event, it is clear that the employer has the initial burden of producing evidence of such a reason. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 357.)
Alternatively, however, the employer may move for summary judgment on the ground that the employee cannot establish a prima facie case of discrimination. In that event, it is not clear whether the plaintiff still has the burden of proving a prima facie case or whether the burden of proof is reversed, instead, so that the employer takes on the burden of disproving a prima facie case. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at pp. 366-367.) All we can say with certainty is that if the employer does introduce evidence sufficient to disprove the employee’s prima facie case, the burden shifts to the employee to introduce evidence sufficient to raise a triable issue of fact regarding the prima facie case, on pain of losing both the motion and the action. (See Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 202-203.)
B. Analysis.
Here, Nestlé did, in fact, disprove a prima facie case; Ornelas then failed to raise a triable issue of fact.
“While the plaintiff’s prima facie burden is ‘not onerous’ [citation], he must at least show ‘“actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were ‘based on a [prohibited] discriminatory criterion....’ [Citation].” [Citation.]’ [Citation.] [¶] The specific elements of a prima facie case may vary depending on the particular facts. [Citations.] Generally, the plaintiff must provide evidence that (1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive. [Citations.]” (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 355, fn. omitted.)
Ornelas introduced sufficient proof of the first three elements of the prima facie case. First, for purposes of his age discrimination claim, he proved that he was over 40. Likewise, for purposes of his retaliation claim, he proved that he had vocally opposed what he reasonably perceived as age discrimination in Shelton’s case. “[A] retaliation claim may be brought by an employee who has complained of or opposed conduct that the employee reasonably believes to be discriminatory, even when a court later determines the conduct was not actually prohibited by the FEHA. [Citations.]” (Yanowitz v. L’Oreal USA, Inc., supra, 36 Cal.4th at p. 1043, fn. omitted.) Second, Ornelas proved that he had worked for Nestlé for 29 years and specifically as a driver for over 10 years; he had no previous record of discipline. The only reasonable inference is that he was performing competently. And third, of course, he was terminated.
Nestlé, however, introduced sufficient evidence to disprove the fourth element of a prima facie case: “some other circumstance suggest[ing] discriminatory motive.” (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 355.) In most age discrimination cases, this element is satisfied by evidence that the plaintiff was replaced by a significantly younger person. (O’Connor v. Consolidated Coin Caterers Corp. (1996) 517 U.S. 308, 312-313 [116 S.Ct. 1307, 134 L.Ed.2d 433]; Muzquiz v. City of Emeryville (2000) 79 Cal.App.4th 1106, 1116.) Accordingly, the employer can disprove a prima facie case by showing that the plaintiff was not replaced by a significantly younger person. (Smith v. International Brotherhood of Electrical Workers (2003) 109 Cal.App.4th 1637, 1658.) “Where an age-protected worker is directly replaced by a person not significantly younger, there may be no basis to suspect a motive of prohibited bias. [Citations.]” (Guz,at p. 366; see also id. at p. 354 [plaintiff is required to prove prima facie case to eliminate “the most patently meritless claims,” including where the job the plaintiff sought was withdrawn and never filled].) While this does not “conclusively preclude[] any inference of age discrimination” (Begnal v. Canfield & Associates, Inc. (2000) 78 Cal.App.4th 66, 74, fn. 10), it is sufficient to shift the burden to the plaintiff to raise a triable issue of fact regarding the prima facie case.
Ornelas claims that he was replaced by a significantly younger person, because a 28 year old took over his assembly line. Nestlé, however, introduced undisputed evidence this was done through a nondiscriminatory bid process; among the other drivers who might have won were 55 and 58 year olds. Moreover, the winner’s former line was combined with another line and thus eliminated. In essence, then, Ornelas was not replaced at all; his work was simply redistributed among the existing drivers. (See Smith v. International Brotherhood of Electrical Workers, supra, 109 Cal.App.4th at p. 1658 [“[D]efendants produced undisputed evidence that after Smith was terminated he was not replaced by a significantly younger organizer.... [N]o particular person replaced Smith. Instead, his duties were divided among the remaining organizers.”].)
Nestlé also introduced other evidence of circumstances tending to disprove discriminatory motive. The average age of employees at the plant was over 40, yet the average age of employees terminated from the plant between 2005 and 2007 was under 40. The other employees who had been terminated between 2005 and 2007 specifically due to unexcused absence from their from work stations were all in their 20’s and 30’s.
Similarly, with regard to Ornelas’s retaliation claim, the evidence showed that after he complained about Shelton’s termination, three or four months went by before he himself was terminated. Normally, to prove a prima facie case of retaliation, the employee must show a “‘very close’” temporal proximity between the protected activity and the adverse employment action. (Clark County School Dist. v. Breeden (2001) 532 U.S. 268, 273 [121 S.Ct. 1508, 149 L.Ed.2d 509]; accord, Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 69 [a “‘“relatively short time”’”].) An elapsed time of three or four months, as here, has been held insufficient to establish a prima facie case. (Clark County School Dist., at pp.273-274.) Ornelas admitted that, in the interim, he experienced no harassment, unfair treatment, or perceived discrimination.
Ornelas did testify that, when he protested against Shelton’s termination, Hartfield got angry. The trial court sustained an objection to this as improper opinion testimony. Ornelas argues that this was error. We need not decide this issue, because even if the trial court erred, the error was harmless. In light of the totality of the evidence, the mere fact that Hartfield was angry fails to supply the deficiency in Ornelas’s prima facie case. Nestlé introduced undisputed evidence that Shelton was actually terminated for falsifying quality records. The fact that Hartfield was angry when Ornelas accused him — falsely — of terminating Shelton based on age is too ambiguous a reaction to prove a causal link to the alleged retaliation. This is particularly true when the alleged retaliation did not even occur for another three to four months.
We may assume, without deciding, that there was a triable issue of fact with regard to whether the stated reason for Ornelas’s termination was pretextual. Even if so, evidence of pretext is no substitute for the missing “other circumstance” element of the prima facie case. “[A]n inference of intentional discrimination cannot be drawn solely from evidence, if any, that the company lied about its reasons. The pertinent statutes do not prohibit lying, they prohibit discrimination. [Citation.] Proof that the employer’s proffered reasons are unworthy of credence may ‘considerably assist’ a circumstantial case of discrimination, because it suggests the employer had cause to hide its true reasons. [Citation.] Still, there must be evidence supporting a rational inference that intentional discrimination, on grounds prohibited by the statute, was the true cause of the employer’s actions. [Citation.]” (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at pp. 360-361.) “In an appropriate case, evidence of dishonest reasons, considered together with the elements of the prima facie case, may permit a finding of prohibited bias. [Citations.]” (Id. at p. 356, italics added.) This necessarily implies that dishonest reasons themselves cannot satisfy any of the elements of the plaintiff’s prima facie case.
Ornelas’s cause of action for wrongful termination in violation of public policy was based entirely on his claims of age discrimination and retaliation. Because these public policies were not violated, the trial court also properly granted summary judgment on this cause of action.
Finally, Nestlé sought summary judgment on Ornelas’s cause of action for intentional infliction of emotional distress on the ground that it was within the exclusive remedy provision of the workers’ compensation law. (See Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 160.) As Ornelas responded, workers’ compensation exclusivity generally does not apply to injuries arising out of unlawful discrimination. (City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, 1155.) However, inasmuch as Nestlé was entitled to summary judgment on Ornelas’s unlawful discrimination claims, it follows that it was also entitled to summary judgment on his claim for intentional infliction of emotional distress.
We therefore conclude that the trial court properly granted summary judgment against Ornelas.
IV
DISPOSITION
The judgment is affirmed. Nestlé is awarded costs on appeal against Ornelas.
We concur, RAMIREZ P.J., MILLER J.