Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 34200800001588-CUOEGDS
MAURO, J.
Defendant Department of General Services rejected Phyllis Banks during her probationary employment period, and Banks sued the Department for racial discrimination and retaliation. The trial court granted the Department’s motion for summary judgment, and Banks appeals. We conclude that Banks failed to establish triable issues of material fact regarding whether the Department’s reasons for rejecting her during probation were pretextual. We will affirm the judgment.
FACTS
Banks, who is African American, interviewed with the Department for a position as staff services manager I with the office of fleet administration. Debra Bouler and Bryon Rush were on the four-member panel that interviewed Banks and found her to be the most qualified candidate. Bouler sought and received the authority to hire Banks, who began working for the Department on February 1, 2006. Banks would supervise six employees in a newly formed unit, combining the transportation management unit and travel unit. Rush was Banks’s immediate supervisor, and Bouler was Rush’s supervisor. As a new employee, Banks was on probation for one year and could be rejected at any time during the probationary period.
Banks’s duties included supervising Donna Carey, who had run the travel unit by herself for around six years. Bouler informed Banks that Carey might be disgruntled and unhappy that a new manager was hired from outside the Department. According to Banks, Carey became progressively difficult and confrontational with her and began making false accusations to Bouler about Banks’s job performance. Banks complained to Bouler, who replied that she expected Carey’s reaction and that she would speak to Carey about her unacceptable conduct.
In March 2006, the Department hired Darlessia Worthen, another African American woman, to fill a vacancy in the travel unit. Bouler, Rush and Banks were on the panel that interviewed and hired Worthen. Following the requisite probationary period, Bouler approved the decision to pass Worthen on probation and make her a permanent state employee.
After the Department hired Worthen, Banks noticed that Carey’s hostility toward her escalated and Carey became argumentative and disruptive in meetings. Banks complained again to Bouler, who responded that Banks should “give [Carey] time. I just got her used to you, now there are two of you.” Banks said, “Two of who?” Bouler replied, “Oh. I mean two of you, attractive women.”
After that exchange, Banks claims Bouler engaged in a series of acts designed to fail Banks on probation in order to hire Bouler’s friend Carey for the position. On two occasions Bouler told Banks to shut up. In April, Bouler yelled at Banks after learning that a car Worthen had checked out received a parking ticket. In May, Bouler made Banks “sit against the wall” at an executive-level meeting at Department headquarters. The next day in a staff meeting, Bouler announced that Banks was in dire need of training.
Bouler declared that she became aware of several incidents during Banks’s probationary period that called her judgment into question. Banks asked an employee about dating Banks’s daughter; she complained about not getting as much “face time” with Bouler, which showed a lack of understanding of the office of fleet administration’s management structure; she called Bouler, who was home sick, to complain about the inappropriate nature of a gift she received from one of her staff; she contacted other staff on their days off on several occasions; she tried to involve herself in matters that did not concern her; she escalated office issues rather than assisting management with diffusing them; she focused on issues that were not related to her program; and she was disruptive in other ways.
In mid-June, Bouler asked Rush to begin working on Banks’s first probation report. He prepared the report, giving her “standard” and “improvement needed” marks but no “unacceptable” marks. Rush had no intention of rejecting Banks during probation, and wrote in the report that he would enroll her in classes designed to address her shortcomings. Rush forwarded the draft to Bouler on June 26, 2006. She reviewed the draft and agreed with the ratings, but asked Rush to cite more specific examples of Banks’s performance problems and include directions as to how Banks could improve. Rush added the requested information.
On June 27, 2006, before Banks received the probation report, Rush and Bouler met with Banks to discuss a work-related issue. Banks contends that after the meeting Rush came into her office and yelled at her abusively. Banks complained about this behavior to Bouler, who referred Banks to the Department’s equal employment opportunity office and removed Rush as Banks’s supervisor. Bouler believed Banks’s concerns were limited to perceived workplace violence, not racial discrimination. According to Anna Hernandez in the equal employment opportunity office, Banks told her she wanted to file a workplace violence complaint and did not mention racial discrimination when Banks spoke with Hernandez on June 29 and July 5, 2006.
On June 29, 2006, Bouler and Rush gave Banks her first probation report. Thereafter, Banks emailed Rob Cook, Bouler’s supervisor, and demanded that the probation report be modified to “reflect the truth” that she had “no performance deficiencies.” Cook shared the email with Bouler. They discussed Banks’s performance to date and her response to the probation report, which they understood to mean she would not endeavor to improve as a manager. Bouler and Cook agreed the Department should “pursue a rejection during probation” based on Banks’s failure to acknowledge her performance issues.
Bouler emailed the human resources department of the intended rejection on July 7, 2006. Banks was placed on administrative time off effective July 19, 2006, which is customary when a probationary employee is to be rejected. The next day, Banks filed a written discrimination complaint with the Department’s equal employment opportunity office.
Bouler, who was unaware that Banks filed a discrimination complaint on July 20, 2006, signed the notice of rejection on July 28, and Banks received it in early August. The Department rescinded Banks’s rejection, however, to allow for an investigation of her discrimination complaint. The investigation determined her complaint could not be substantiated and, in November 2006, Cook decided to proceed with Banks’s rejection. In December 2006, Banks received a second notice of rejection.
Banks sued the Department for racial discrimination and retaliation under the California Fair Employment and Housing Act (FEHA). (Gov. Code, § 12940.) She alleged that she was treated in a disparate manner because of her race, that she complained to Rush of the racial tension in the office in April 2006 and made a report of racial discrimination in July 2006, and she was rejected on probation because of her race and in retaliation for her complaints of discrimination.
Banks also sued Bouler and Rush but dismissed her complaint against them with prejudice. In addition, Banks sued the Department for retaliation for filing a workplace violence complaint in violation of Labor Code section 6310, but the Department successfully demurred to this claim.
The Department moved for summary judgment and/or summary adjudication. With respect to Banks’s discrimination claim, the Department contended she could not make out a prima facie case of discrimination, and the Department had a nondiscriminatory reason for rejecting her during probation. As for her retaliation cause of action, the Department argued Banks failed to establish a causal link between her discrimination complaint and the adverse employment action, and that the Department had a non-retaliatory reason for its decision to reject her during her probation.
Banks contended that a prima facie case of discrimination existed based primarily on Bouler’s comment that now there were “two of you”; her rude, disparate treatment of Banks; and her favoritism toward Carey. Banks also claimed that Worthen felt that the Department discriminated against Banks during her employment in that she “was deliberately ‘left out of the loop’ by a completely Caucasian chain-of-command.” Banks maintained there was ample evidence that the Department rejected her during probation in retaliation for her complaints of discrimination; she complained to Bouler, Cook and Rush that she was being treated differently because she was African American and made a formal complaint of discrimination before she was rejected. She denied that the Department had a legitimate reason to reject her.
The Department responded that Banks failed to establish a triable issue of material fact regarding whether its reasons for rejecting her were pretextual.
The trial court granted the Department’s motion for summary judgment. As to her cause of action for racial discrimination, the trial court found that Banks failed to raise a triable issue of material fact regarding whether the Department’s asserted non-discriminatory reasons for rejecting her during probation were pretextual. And as to her cause of action for retaliation, the trial court found that Banks failed to show a causal link between her complaints of discrimination and her rejection during probation, and in any event, she also failed to demonstrate a triable issue of material fact regarding whether the Department’s asserted non-discriminatory reasons for rejecting her during probation were pretextual.
STANDARD OF REVIEW
AND ALLOCATION OF BURDENS
We review de novo an order granting summary judgment and independently determine whether the defendant is entitled to judgment as a matter of law. (Romero v. American President Lines, Ltd. (1995) 38 Cal.App.4th 1199, 1203.) However, “[a]s with an appeal from any judgment, it is the appellant’s responsibility to affirmatively demonstrate error and, therefore, to point out the triable issues the appellant claims are present by citation to the record and any supporting authority. In other words, review is limited to issues which have been adequately raised and briefed.” (Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 116.)
A motion for summary judgment “shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) A defendant meets its burden of showing that a cause of action has no merit if it shows that plaintiff cannot establish one or more elements of the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) If defendant makes this showing, the burden shifts to plaintiff to show that a triable issue of material fact exists on that issue. (Ibid.) But the plaintiff cannot rely on mere allegations; plaintiff must set forth specific facts. (Ibid.)
Moreover, because plaintiffs who allege racial discrimination and retaliation must often prove their case with circumstantial evidence, additional rules have developed in these particular cases regarding the allocation of burdens and the order of proof. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354-355 (Guz); Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 68 (Morgan); Johnson v. United Cerebral Palsy/Spastic Children’s Foundation (2009) 173 Cal.App.4th 740, 754 (Johnson).) 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 [36 L.Ed.2d 668]. (Guz, supra, 24 Cal.4th at p. 354.)
For a discrimination cause of action, a plaintiff must first present a prima facie case showing (1) she was a member of a protected class, (2) she was performing competently in the position held, (3) she suffered an adverse employment action, and (4) other circumstances suggest the employer harbored a discriminatory or retaliatory motive. (Guz, supra, 24 Cal.4th at p. 355.) The burden of presenting a prima facie case is not onerous; the plaintiff need only show actions by the employer which, if unexplained, allow an inference that the actions were more likely than not based on a prohibited discriminatory or retaliatory reason. (Guz, supra, 24 Cal.4th at p. 354; Johnson, supra, 173 Cal.App.4th at pp. 754-755.)
Moreover, to establish a prima facie case of retaliation under the FEHA, a plaintiff must show that (1) she engaged in a protected activity, (2) the Department subjected her to an adverse employment action, and (3) a causal link existed between the protected activity and the Department’s action. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz).)
If the plaintiff establishes a prima facie case, a rebuttable presumption of discrimination or retaliation arises and the burden shifts to the employer to rebut the presumption with evidence that its action was taken for a legitimate reason. (Guz, supra, 24 Cal.4th at pp. 355-356; Yanowitz, supra, 36 Cal.4th at p. 1042.) If the employer does so, the presumption of discrimination or retaliation disappears, and the burden shifts back to the plaintiff, who must offer evidence demonstrating that the employer’s justification is a pretext for discrimination or retaliation, or offer additional evidence of discrimination or retaliation. (Guz, supra, 24 Cal.4th at p. 356; Johnson, supra, 173 Cal.App.4th at p. 755; Yanowitz, supra, 36 Cal.4th at p. 1042; McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 388-389 (McRae).)
Thus, on a motion for summary judgment, a defendant employer must show that one or more of plaintiff’s prima facie elements is lacking, or that the adverse employment action was based on a legitimate, nondiscriminatory reason. (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203.)
The plaintiff then must do more than rely on its prima facie case or challenge the credibility of the defendant’s witnesses. (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 807, 817 (Horn); Lindahl v. Air France (9th Cir. 1991) 930 F.2d 1434, 1437-1438.) The plaintiff must offer substantial evidence that the defendant’s stated reason for its action is untrue or pretextual, or that defendant acted with a discriminatory or retaliatory animus. (Johnson, supra, 173 Cal.App.4th at p. 756; Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1004-1005 (Hersant).) The plaintiff’s subjective beliefs or uncorroborated and self-serving declarations do not create a genuine issue of fact in an employment discrimination case. (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433 (King).)
California courts look to federal cases for guidance in deciding cases under the FEHA. (Guz, supra, 24 Cal.4th at p. 354.)
Moreover, “[i]t is not enough for the employee simply to raise triable issues of fact concerning whether the employer’s reasons for taking the adverse action were sound. What the employee has brought is not an action for general unfairness but for... discrimination.... [T]he fact an employee is the member of a protected class and has demonstrated triable issues concerning the appropriateness of the adverse action taken does not so readily demonstrate a discriminatory animus that it is alone sufficient to establish the fact of discrimination or alone sufficient to avoid summary judgment.” (Hersant, supra, 57 Cal.App.4th at p. 1005.) “‘Rather, the [employee] 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 [asserted] non-discriminatory reasons.” [Citations.]’” (Id. at p. 1005, quoting Fuentes v. Perskie (3d Cir. 1994) 32 F.3d 759, 765.)
“While we must liberally construe plaintiff’s showing and resolve any doubts about the propriety of a summary judgment in plaintiff’s favor, plaintiff’s evidence remains subject to careful scrutiny. [Citation.] We can find a triable issue of material fact ‘if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.’ [Citation.]” (King, supra, 152 Cal.App.4th at pp. 433-434.)
DISCUSSION
I
Banks contends the trial court erred in finding that she did not establish a prima facie case of discrimination and in finding that she failed to establish that the Department’s reasons for rejecting her on probation were pretextual.
Assuming for the purposes of this decision that Banks made a prima facie showing, the record nonetheless establishes that the Department articulated legitimate, non-discriminatory reasons for rejecting her during probation. Thus, the burden shifted back to Banks to show that the Department’s reasons were pretextual. Banks failed to make the required showing.
Bouler hired Banks and Worthen, and passed Worthen on probation. These facts suggest that Bouler did not harbor discriminatory animus based on race. Banks contests the criticisms in her probation report, but such a dispute does not give rise to the necessary triable issue of material fact regarding whether the Department’s decision to reject her on probation was pretextual. (Hersant, supra, 57 Cal.App.4th at p. 1005.)
Bouler made the comment “now there are two of you.” But a stray comment, without more, does not raise a triable issue of actionable discrimination. (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 541; Nesbit v. Pepsico, Inc. (9th Cir. 1993) 994 F.2d 703, 705; Merrick v. Farmers Ins. Group (9th Cir. 1990) 892 F.2d 1434, 1438-1439.) Moreover, Banks has not demonstrated that Bouler’s alleged rudeness to Banks, and alleged preferential treatment of Carey, related to Banks’s race. Banks asserted that Carey and Bouler were friends, which provides an alternate explanation for Bouler’s alleged conduct. (Morgan, supra, 88 Cal.App.4th at p. 73.) Speculation about discrimination is insufficient. (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1118.)
Banks had to submit nonspeculative evidence demonstrating that the Department rejected her on probation because she was African American. (King, supra, 152 Cal.App.4th at pp. 433-434.) She did not. Accordingly, the trial court did not err in granting the Department’s motion for summary adjudication on the discrimination cause of action.
II
Next, Banks contends the trial court erred in granting summary adjudication on her retaliation cause of action. In her view, she demonstrated that she was rejected on probation in retaliation for complaints of discrimination she made before the Department decided to reject her.
Again, however, even if we assume that Banks established a prima facie case of retaliation, the record shows that the Department offered legitimate reasons for the adverse employment action. The presumption of retaliation then dropped out of the picture and the burden shifted back to Banks to prove by competent evidence that the Department’s proffered justification was mere pretext. (McRae, supra, 142 Cal.App.4th at p. 388.) Her burden was the same as in a discrimination claim, i.e., she could not simply show that the Department’s decision was wrong or unwise, but that its proffered reasons were so inherently implausible that a reasonable factfinder could rationally find them unworthy of credence, and infer that the Department did not act for the stated legitimate reasons. (Id. at pp. 388-389.)
As discussed in Part I of this decision, Banks failed to demonstrate that the Department’s reasons were pretextual. Under the circumstances, the trial court did not err in granting summary adjudication on the retaliation cause of action, and in ultimately granting the Department’s motion for summary judgment.
DISPOSITION
The judgment is affirmed.
We concur: RAYE, P. J., BLEASE, J.