Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Aurelio Munoz, Judge, Super. Ct. No. BC334249
Ryan & Steiner, Jeffrey Ryan; James J. Der, Jr.; and Robert A. Dye for Plaintiff and Appellant.
Woldt & Associates, Wendy A. Woldt; Rutter Hobbs & Davidoff Incorporated and Olivia Goodkin for Defendant and Respondent.
SUZUKAWA, J.
In this action for wrongful termination based on sex discrimination, plaintiff Debra Schellenberg appeals from the summary judgment in favor of her former employer, defendant Sun Microsystems (Sun). We affirm the judgment.
BACKGROUND
After experiencing a business downturn, Sun imposed a reduction in force in 2003 that sought to reduce its 39,000 employees by 11 percent. In 2004, Sun developed a comprehensive plan called Genesis to reorganize its worldwide sales force. Sun anticipated that Genesis would eliminate 268 positions held by 195 male and 73 female employees in the United States. When Genesis was implemented July 2005, it affected 3,400 employees and eliminated more than 250 positions, including the position held by plaintiff, whose department was disbanded in the reorganization.
Our discussion of Genesis is limited to its implementation in the United States.
Before Genesis, plaintiff was an engagement manager in the Professional Services Organization (PS) of the Data Center Practice group. The PS was the only organization within Sun that employed engagement managers. When Genesis reorganized Sun’s sales force, it expanded the role of engagement managers by involving them in the engagement process “from start to finish,” with “a regional focus, as opposed to a Practice or specific technology focus.” Before Genesis, engagement managers sold “PS engagements — meaning the services by which Sun installed, deployed and provided services to solutions sold to customers by Sun’s sales organization.” After Genesis, engagement managers sold “Solutions engagement[s] — which included the sale of Sun hardware, software and services in a process.”
Plaintiff began working at Sun in 1997. She held numerous positions including district sales manager, sales development manager/personal service systems integration, customer ready systems program manager, and, most recently, PS engagement manager.
When the Client Services Organization (CSO) was formed, it was assigned the functions of the PS and Technology & Solutions Organization (TSO), which were both disbanded. The CSO was divided into Engagement Delivery Units (EDU’s) and five Practice groups: Data Center, Storage, Desktop & Mobility, Identity & Security, and Software.
Genesis transferred the engagement manager positions, but not the PS employees in those positions, to the EDU’s, which became the only units within Sun that employed engagement managers. In order “to secure the best talent” for the new EDU engagement manager positions, Sun required that those positions be posted for competitive hiring. Sun announced that former PS engagement managers must participate in the competitive hiring process if they wished to be selected for engagement manager, director-level, or “people manager” positions, all of which had to be posted. Given the importance of the new EDU engagement manager positions, Sun gave EDU directors priority over other directors in hiring former PS engagement managers.
Although engagement manager, director-level, and people manager positions were subject to posting and competitive hiring requirements, many other positions were filled during the implementation of Genesis by transferring employees from one department to another. For example, under Genesis, more than 1,500 employees were “mapped” or reassigned to nonmanagerial positions within the five CSO Practice groups. Similarly, about 190 employees from plaintiff’s former PS group were mapped to nonmanagerial positions within the Global Data Center Practice group (Global DCP). Due to budget constraints, however, not all of the PS employees could be transferred to the Global DCP. Plaintiff was among the 35 PS employees (23 males and 12 females) who, for financial reasons, were not transferred to the Global DCP.
Although plaintiff was informed that the PS had been disbanded and her former position had been eliminated, plaintiff did not formally apply for any of the posted engagement manager, director-level, or people manager positions. Instead, she emailed Mr. Ahearn, the director of the CSO Data Center Practice (DCP), who had posted several management positions that she believed matched her experience and qualifications. Plaintiff attached her resume to the email and asked that Mr. Ahearn consider her for any available positions in the DCP. Mr. Ahearn read plaintiff’s resume and contacted her former supervisor, Mr. Jones, who informed him “that plaintiff was difficult to focus; that—while capable—plaintiff had her own agenda and, therefore, was difficult to manage.” Based on this information, Mr. Ahearn “determined that plaintiff was not a good fit for his Practice.” Mr. Ahearn never replied to plaintiff’s email.
On August 16, 2004, plaintiff began a paid medical leave of absence. She did not return to work until November 11, 2004.
On August 24, 2004, plaintiff received a formal workforce reduction notice stating that her former PS engagement manager position had been eliminated, and that her employment would be terminated 60 days after the completion of her medical leave. The notice also informed plaintiff of the computerized job listings that were available to help her locate and apply for other positions within Sun.
Thereafter, Sun’s Human Resources Department informed plaintiff of 34 job listings for which she was qualified to apply. Plaintiff, however, did not formally apply for any of them. On January 10, 2005, which was 60 days after she returned from her leave of absence, plaintiff was terminated pursuant to the terms of the workforce reduction notice.
After exhausting her administrative remedies, plaintiff filed the present lawsuit against Sun on June 1, 2005. Her surviving claims are for: (1) sex discrimination in violation of the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12940, subd. (a), first cause of action); (2) failure to prevent discrimination (Gov. Code, § 12940, subd. (k), third cause of action); (3) wrongful termination in violation of public policy (fourth cause of action); and (4) wrongful termination based upon breach of an implied-in-fact employment contract (fifth cause of action).
Plaintiff dismissed her claims for age discrimination in violation of the FEHA, unlawful employment practices based upon age, wrongful termination in violation of public policy based upon age, and damages for physical and emotional distress.
Plaintiff alleged in her complaint that despite her “proven record of success, SUN eliminated her position while Plaintiff was on disability leave, while allowing a male [CSO Practice group] Director [Mr. Ahearn] to hand select a team of all male managers, and non-competitively transfer in a younger, less experienced, and less tenured male [Mr. Allsopp] to perform Plaintiff’s job.” Plaintiff’s sex discrimination claims were based on the common factual allegations that: (1) Genesis transferred the functions of the former PS to the DCP, which is the successor to the PS; (2) Genesis transferred plaintiff’s former PS position, or its equivalent, to the DCP, where it was given the name of practice manager; (3) Mr. Ahearn engaged in sex discrimination by failing to post the practice manager position for competitive hiring, thereby precluding plaintiff from formally applying for it; (4) Mr. Ahearn also engaged in sex discrimination by giving the practice manager position to a less qualified and less senior male employee, Mr. Allsopp; (5) Sun’s stated reason for Mr. Allsopp’s hiring as practice manager—namely, that he was transferred along with his position from the Relationship Sales Organization (RSO) to the DCP during the reorganization—was shown to be a subterfuge for sex discrimination when “SUN Human Resources acknowledged that the work Mr. Allsopp was providing in Data Center [Practice] was virtually identical to the job duties required of [plaintiff’s] former position. The rationale, if one wants to get beyond the pretextual reasons, was that Allsopp’s position had been transferred to Ahearn’s organization, and ‘Allsopp went with the position.’ Sun Human Resources, however, conceded that no requisition for the position had been posted.”
The complaint additionally alleged that “on August 8, 2004, Plaintiff provided her resume to Mr. Ahearn [director of the DCP] requesting consideration for any of the management position openings with SUN. Plaintiff never received any response from Mr. Ahearn. On August 27, 2004, Mr. Ahearn announced his management team which was comprised of eight white males.” Mr. Ahearn selected Mr. Allsopp, one of the “eight white males,” for a position comparable to the PS engagement manager job performed by plaintiff in her old unit. Instead of offering plaintiff that job, which was not posted, Mr. Ahearn “surreptitiously” selected Mr. Allsopp, a “less experienced” and “less tenured” male, even though plaintiff was “more qualified and equipped” than Mr. Allsopp. “In perpetrating the above described action, Defendant engaged in a pattern and practice of unlawful . . . gender discrimination in violation of Government Code § 12940(a). As a result of Plaintiff’s . . . gender, Defendant SUN and/or its agents/employees, discriminated against Plaintiff by refusing to employ, consider for employment, and refused to promote Plaintiff. Moreover, Defendant SUN and/or its agents/employees, discriminated against Plaintiff by discharging Plaintiff from employment based upon Plaintiff’s . . . gender.”
Sun moved for summary judgment or, alternatively, summary adjudication. Sun produced evidence that plaintiff was terminated during Genesis for legitimate, nondiscriminatory reasons unrelated to her gender. As for Mr. Ahearn’s allegedly discriminatory hiring of Mr. Allsopp, Sun produced evidence that during Genesis, Mr. Allsopp and his position of strategic sales representative C were transferred from the RSO to the DCP for gender-neutral reasons. According to Mr. Allsopp’s deposition testimony, when he was transferred to the DCP in September 2004, he retained his RSO job title of strategic sales representative C. It was not until several months later that Mr. Allsopp interviewed with Mr. Ahearn for the practice manager position, which he obtained in November 2004. Moreover, Sun contended that, contrary to the complaint, Mr. Ahearn’s management team was not all male. Sun produced evidence that a female was among the “13 ‘people managers’” hired by Mr. Ahearn during this period, and that two females were on Mr. Ahearn’s management team.
Given that plaintiff had failed to allege any other facts to support her sex discrimination claims, Sun contended that they must fail as a matter of law. According to her deposition testimony, plaintiff believed that she was the victim of sex discrimination when Mr. Ahearn “didn’t post a requisition for the job that he put David Allsopp — moved him into; therefore, I could not apply for it.” When asked whether she possessed any other facts to support her sex discrimination claim, plaintiff replied, “No.” Plaintiff also testified that she was unaware of any other position that was denied to her because of her gender.
Additionally, Sun contended that it was entitled to summary adjudication of the breach of an implied-in-fact employment contract claim, based on Sun’s evidence that plaintiff was an at-will employee whose position was subject to termination at any time and without cause.
In opposition to the motion, plaintiff contended that Sun’s innocent explanation for Mr. Ahearn’s hiring of Mr. Allsopp was so inconsistent as to be unbelievable. In particular, the explanation was not credible, she claimed, because Mr. Allsopp was transferred from the RSO, which was not one of the two organizations (PS and TSO) that were “merged” to form the CSO. She argued that “if Sun merged two of its organizations, how did a male from outside those two organizations wind up with a job Sun described as similar to [plaintiff’s] without her having been given any opportunity to secure that job?” Plaintiff contended that given her superior qualifications and seniority, a reasonable jury could infer that Mr. Allsopp was selected over plaintiff as practice manager because she is female. In her responsive separate statement, plaintiff objected, on evidentiary grounds, to “192 of the 297 purportedly undisputed facts” in Sun’s separate statement. In addition, plaintiff submitted several declarations and other evidence in opposition to the motion. Arguing that there were triable issues of material fact, plaintiff asserted that the motion must be denied.
In reply, Sun contended that plaintiff had failed to rebut the undisputed evidence that: (1) her job was terminated for legitimate reasons during a corporate reorganization that was unrelated to her gender; (2) she did not apply through formal channels for any of the posted engagement manager, director-level, or people manager positions; and (3) Mr. Allsopp was transferred along with his position of strategic sales representative C from the RSO to the DCP for nondiscriminatory reasons in September 2004.
According to Sun’s separate statement, the RSO where Mr. Allsopp had worked was among the organizations affected by Genesis. Before Genesis, “Mr. Allsopp worked for a software and solutions sales organization that had a number of different groups within it, primarily focused on software and hardware solutions sales. That function was disbanded. So a group of people out of that function went to the Identity Practice. A group of people from that function went to the Java Software Practice, and four people out of that business who were focused on data center type sales — technical sales — came into the CS[O] DCP.” “It was not Mr. Ahearn’s decision whether to transfer the function of the sales of data center software and solutions into the CSO DCP. That decision was a matter of organizational design as part of Genesis.” “Mr. Ahearn was the receiving manager for the function of the sales of data center software and solutions into the CSO DCP . . . . David Allsopp (‘Mr. Allsopp’) was a Sun employee performing that function that was transferred into CSO DCP.” “As a result of the transfer of the function of data center software and solutions sales into the CSO DCP, the individuals who had been performing that function were moved from RSO into the CSO DCP.” “David Allsopp, Ryan Day, Mark Denne and Marty Toomey were four Sun employees who performed the data center software and/or solutions sales function and, therefore, were transferred into CSO DCP.”
Regarding plaintiff’s assertion that she was more qualified than Mr. Allsopp for the practice manager position, Sun argued that Mr. Allsopp was qualified for the position, which “required him to run a high end server program.” According to Mr. Allsopp’s deposition testimony, “he worked for approximately 3½ years at Cray Research, the Company which developed the high end server technology that Sun purchased from Cray and now sells as its own equipment, selling high end servers, i.e., servers priced in the range of $5 to $30 million. Plaintiff appears to be placing her ‘spin’ on Mr. Allsopp’s qualifications in order to suggest that his hire into the Practice Manager position proves discriminatory bias against women because he was not qualified for the position. However, not only is plaintiff’s ‘spin’ unsupported by the cited testimony, but also, it fails [to] support a claim of discrimination because it is uncontroverted that plaintiff did not apply for the Practice Manager position.”
In addition to refuting plaintiff’s evidentiary objections to Sun’s separate statement, Sun objected to the evidence set forth in plaintiff’s responsive separate statement. Additionally, Sun objected on numerous evidentiary grounds to the four declarations submitted by plaintiff.
At the beginning of the summary judgment hearing, the trial court issued its tentative ruling to sustain, for the most part, Sun’s objections to the four declarations submitted by plaintiff, and to grant the summary judgment motion. The tentative ruling stated in relevant part: “Defendant has offered a legitimate reason for plaintiff’s termination and plaintiff has failed to establish that this was a pretext for discrimination. Plaintiff was an at-will employee who, when facing a downsize, failed to try and obtain other positions in the company other than a position comparable to the one which she already had. The fact that she was unsuccessful in obtaining the position does not mean there was discrimination.”
During the hearing, plaintiff’s counsel requested, for the first time, a continuance in order to obtain “[t]he balance of the documents that are in Sun’s possession.” In response to Sun’s objection that the request was untimely, plaintiff’s counsel argued that Sun had failed to produce a document from its internal web site that instructed employees to apply directly with Sun’s hiring managers rather than through the formal computerized application process. The formal computerized application process was, according to plaintiff’s counsel, a “sham.” Plaintiff’s counsel contended that the document was necessary to refute the trial court’s determination that plaintiff had “failed to try and obtain other positions in the company other than a position comparable to the one she already had.” Plaintiff’s counsel asserted that “not only did [plaintiff] apply for any open position in Mr. Ahearn’s organization, she also applied to two other directors [for] any positions they had open, including open job requisitions.” Plaintiff’s counsel referred to plaintiff’s deposition testimony that she had contacted directors John Barto and Chris Hause regarding job opportunities in other departments.
Sun responded that even if plaintiff had made three attempts to obtain a job during the reorganization, there was still no evidence of sex discrimination. The trial court denied the request for continuance as untimely.
At the close of the hearing, Sun inquired if the trial court would rule on Sun’s evidentiary objections to plaintiff’s responsive separate statement. Plaintiff similarly requested rulings on her evidentiary objections to Sun’s separate statement. Given that plaintiff’s responsive separate statement contained objections to “192 of the 297 purportedly undisputed facts” in Sun’s separate statement, the trial court stated, “I’ll have to spend all day doing it, but I’ll do it.” Sun volunteered to prepare a tentative order. Later that same day, the trial court entered a minute order that sustained the bulk of Sun’s objections to the four declarations submitted by plaintiff, granted the summary judgment motion for the reasons stated in the tentative ruling, and ordered counsel for Sun to prepare a proposed order and judgment.
Sun submitted a 60-page proposed order that quoted and adopted a large portion of Sun’s separate statement of undisputed facts, including many of the facts that were objected to in plaintiff’s responsive separate statement. Where relevant, the proposed order also sustained Sun’s objections to plaintiff’s responsive separate statement. The proposed order stated that there were no triable issues of material fact, and that plaintiff’s sex discrimination claims must fail, as a matter of law, because the evidence was insufficient to establish either a prima facie case that plaintiff’s employment was terminated because of her gender, or that Sun’s stated reasons for the termination were pretextual. Additionally, the proposed order stated that the breach of implied-in-fact employment contract claim must fail, as a matter of law, because plaintiff was an at-will employee.
The trial court signed the proposed order and entered judgment for Sun on September 7, 2006.
On September 14, 2006, plaintiff objected to the proposed order on grounds that: (1) the trial court “did not require nor request” that Sun prepare the proposed order; (2) the proposed order’s “form and content” did “not follow” the court’s “written order issued after the hearing”; and (3) the proposed order included an unwarranted attorney fee award that was not included in the trial court’s original ruling.
On September 20, 2006, the trial court noted and overruled plaintiff’s objections. The trial court ruled that the “Judgment filed 9/7/06 stands.” This appeal followed.
DISCUSSION
I. Standard of Review
In reviewing the summary judgment of a discrimination claim under the FEHA, we apply the test formulated by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 and Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248 for evaluating claims under title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.). (See Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 201-203.) The three-part McDonnell Douglas test requires, first, that the plaintiff establish a prima facie case of discrimination, which gives rise to an inference of discrimination. The inference of discrimination will drop from the case, however, if, in the second step, the employer offers a legitimate reason for its actions. In the third step, the plaintiff must prove that the employer’s stated reason was a pretext to mask an illegal motive. (See Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 148-150.)
“The specific elements of a prima facie case may vary depending on the particular facts. . . . 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.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355, citations omitted.)
“If the employer successfully rebuts the presumption raised by the prima facie case, ‘the McDonnell/Burdine presumption “drops from the case” and the factfinder must decide upon all of the evidence before it whether defendant intentionally discriminated against plaintiff. . . . In short the trier of fact decides whether it believes the employer’s explanation of its actions or the employee’s.’ . . .
“In the third stage of the McDonnell Douglas test, the employee, who ‘retains the burden of persuasion[,] . . . now must have the opportunity to demonstrate that the proffered reason was not the true reason for the employment decision. This burden now merges with the ultimate burden of persuading the court that [the employee] has been the victim of intentional discrimination.’” (Clark v. Claremont University Center (1992)6 Cal.App.4th 639, 664; accord, St. Mary’s Honor Center v. Hicks (1993) 509 U.S. 502, 506-511; Guz v. Bechtel National, Inc., supra, 24 Cal.4th at pp. 354-356.)
“In . . . pretrial proceedings, the trial court will be called upon to decide if the plaintiff has met his or her burden of establishing a prima facie case of unlawful discrimination. If the employer presents admissible evidence either that one or more of plaintiff’s prima facie elements is lacking, or that the adverse employment action was based on legitimate, nondiscriminatory factors, the employer will be entitled to summary judgment unless the plaintiff produces admissible evidence which raises a triable issue of fact material to the defendant’s showing. In short, by applying McDonnell Douglas’s shifting burdens of production in the context of a motion for summary judgment, ‘the judge [will] determine whether the litigants have created an issue of fact to be decided by the jury.’” (Caldwell v. Paramount Unified School Dist., supra, 41 Cal.App.4th at p. 203, italics added.)
“[T]o avoid summary judgment, an employee claiming discrimination must offer 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.
“It 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. While, given the inherent difficulties in showing discrimination, the burden-shifting system established by the Supreme Court is a useful device to facilitate the adjudication of claims of discrimination, it ultimately, however, does not change what the employee must prove. In our judgment the 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.
“. . . ‘The [employee] 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, not whether the employer is wise, shrewd, prudent, or competent. . . . 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,” . . . and hence infer “that the employer did not act for the [the asserted] non-discriminatory reasons.”’” (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1004-1005, italics omitted.)
“[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. . . . 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. . . . Still, there must be evidence supporting a rational inference that intentional discrimination . . . was the true cause of the employer’s actions. . . . Accordingly, . . . 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.” (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at pp. 360-361, fn. omitted.)
II. The Trial Court Rejected Plaintiff’s Evidentiary Objections
Plaintiff contends that the trial court failed to rule on her evidentiary objections to Sun’s separate statement, thereby requiring a reversal of the summary judgment under Vineyard Springs Estates v. Superior Court (2004) 120 Cal.App.4th 633, 635 (Vineyard). Sun, on the other hand, argues that the issue was waived by plaintiff’s repeated failure to raise it below, including when the minute order granting the summary judgment motion was served, Sun’s proposed order was served, or plaintiff’s objection to the proposed order was filed.
The summary judgment statute provides that “[i]n determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court . . . .” (Code Civ. Proc., § 437c, subd. (c).) In light of this statute, “it has been correctly held that, when evidentiary objections are in a proper form, a trial court must rule on the objections. [Citations.]” (Vineyard, supra, 120 Cal.App.4th at p. 642.)
“Typically, when a trial judge fails to rule on summary judgment or adjudication motion evidentiary objections, the California Supreme Court has held that the objections are deemed waived on appeal. (Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 1186 fn. 1 [‘Arman filed objections to the declarations of plaintiff and her counsel in the trial court, but the record contains no rulings on those objections. We therefore deem the objections waived and view plaintiff’s evidence as having been admitted in evidence as part of the record for purposes of the appeal. ([Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666,] 670, fn. 1; Code Civ. Proc., § 437c, subds. (b), (c).)’]; Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th at p. 670, fn. 1 [‘In the trial court, defendants made a series of objections to evidence submitted by Ann M. in opposition to the summary judgment motion. The trial court did not rule on the objections. Because counsel failed to obtain rulings, the objections are waived and are not preserved for appeal. (Code Civ. Proc., § 437c, subds. (b) & (c); Golden West Baseball Co. v. Talley (1991) 232 Cal.App.3d 1294, 1301, fn. 4; Ramsey v. City of Lake Elsinore (1990) 220 Cal.App.3d 1530, 1540; Haskell v. Carli (1987) 195 Cal.App.3d 124, 129-132.) Although many of the objections appear meritorious, for purposes of this appeal we must view the objectionable evidence as having been admitted in evidence and therefore as part of the record.’].)” (City of Long Beach v. Farmers & Merchants Bank (2000) 81 Cal.App.4th 780, 783 (City of Long Beach).)
In City of Long Beach, the appellate court found that the circumstances warranted an exception to the general rule that any objections not ruled upon are waived and are not preserved for appeal. City of Long Beach held that the defendant’s evidentiary objections, even though not ruled upon, had been preserved for appellate review because “defense counsel twice orally raised the issue of securing a ruling on the previously filed written evidentiary objections in court before the trial judge. Frankly, in this case, there was nothing further defense counsel could be expected to do in terms of seeking rulings on the previously filed evidentiary objections beyond personally raising the issue on two separate occasions in the presence of the trial court. It . . . has been held that issues are preserved for review when it would be fruitless or an idle act for an attorney to object. (People v. Chavez (1980) 26 Cal.3d 334, 350, fn. 5 [no duty to object when the existing state of the law would render an objection futile]; People v. Hopkins (1992) 10 Cal.App.4th 1699, 1702 [after mistrial objection overruled on a legal ground, defense counsel could reasonably have believed a further objection would be fruitless]; People v. Scalzi (1981) 126 Cal.App.3d 901, 907 [objection unnecessary where issue had previously been argued extensively].) It would have been a fruitless or idle act to have interposed a third oral request for rulings. Accordingly, we conclude that the written evidentiary objections have been preserved for appellate review. (Meadow, Objections: The Moment of Truth (1999) vol. XXI, No. 3 ABTL Rep. 1, 8.)” (City of Long Beach, supra, 81 Cal.App.4th at pp. 784-785.) Similarly, in Vineyard, the appellate court held that the trial court had failed in its duty to rule on the evidentiary objections after promising three times that it would do so. (Vineyard, supra, 120 Cal.App.4th at p. 643.)
In this case, plaintiff contends that the trial court failed to rule on her evidentiary objections after being asked and promising to do so. We disagree that the trial court failed to rule on plaintiff’s evidentiary objections.
Plaintiff’s evidentiary objections were contained in her responsive separate statement, which listed and objected to “192 of the 297 purportedly undisputed facts” in Sun’s separate statement. The summary judgment order, which extensively quoted and relied upon the bulk of Sun’s separate statement, necessarily overruled any objections raised by plaintiff as to those facts.
Plaintiff argues that the summary judgment order “should be viewed with suspicion because it was drafted by SUN and signed and filed without the benefit of thorough judicial review by the trial court.” She also states that the trial court “signed the proposed order without exercising any discretion” and “did not carefully review the order or judgment before signing them.” We reject this contention as unsupported by the record.
Given the trial court’s express reliance in the summary judgment order upon evidence that plaintiff contends was inadmissible, in order to prevail on appeal, plaintiff must show not only an abuse of discretion, but also the existence of prejudicial error resulting in a miscarriage of justice. (City of Ripon v. Sweetin (2002) 100 Cal.App.4th 887, 900; Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800; Cal. Const., art. VI, § 13.) Plaintiff has failed to meet her burden.
III. The Trial Court Applied the Correct Legal Standard
In order to prove a prima facie case of discrimination, the plaintiff generally must show “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.” (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 355, citations omitted.)
In this case, the trial court found that plaintiff failed to prove a prima facie case because her position was eliminated as part of a corporate reorganization that was unrelated to her gender. In addition, the trial court found that the failure to transfer plaintiff to the Global DCP was motivated not by her gender, but by financial reasons, and that 35 employees of both genders were similarly affected. The trial court stated that “plaintiff has not and cannot present evidence suggesting that her termination was motivated by sex/gender discrimination.”
On appeal, plaintiff contends that Sun argued an inapplicable standard for establishing a prima facie case, citing Sun’s references to Ercegovich v. Goodyear Tire & Rubber Co. (6th Cir. 1998) 154 F.3d 344, 350, and Rose v. Wells Fargo & Co. (9th Cir. 1990) 902 F.2d 1417. Plaintiff contends that Sun argued that, in order to establish a prima facie case, she had to provide some additional evidence to show that she was “singled out” for discrimination. She contends that under California law, an employee need not show she was “singled out” for discrimination in order to establish a prima facie case. It is sufficient under Guz v. Bechtel National, Inc., supra, 24 Cal.4th at page 355, to show some other circumstance that suggests a discriminatory motive.
This contention does not assist plaintiff, however, because regardless of the standard that was argued by Sun below, the trial court quoted and applied the correct standard set forth in Guz v. Bechtel National, Inc., supra, 24 Cal.4th at page 355.
IV. Sun Produced Evidence of a Legitimate Business Reason
The trial court found that even assuming plaintiff had established a prima facie case of sex discrimination, the evidence showed that her position was eliminated for legitimate business reasons unrelated to her gender during a corporate reorganization following a massive reduction in force.
On appeal, plaintiff contends that Sun’s own evidence established the existence of triable issues of fact, given that: (1) there was a continuing need for her services; (2) she was qualified to work in the Global DCP and in many other positions; (3) the formal application and interview process was not a necessary prerequisite to her continued employment; (4) her satisfactory job performance rating showed that she met and sometimes exceeded the standards set for a person of her qualifications and experience; (5) she applied for other positions with John Barto and Chris Hause; (6) she could not apply for the new EDU engagement manager positions while she was on disability leave for back pain; (7) she applied for positions within Mr. Ahearn’s group; and (8) the position given to Mr. Allsopp was not posted and was very similar to hers.
None of the above evidence, however, contradicts Sun’s undisputed evidence that: (1) plaintiff’s job was eliminated during the reorganization process for legitimate business reasons unrelated to her gender; (2) she failed to apply for any of the posted EDU engagement manager, director-level, or people manager positions; (3) Mr. Allsopp was transferred to the DCP along with his position during the reorganization; (4) Mr. Allsopp was qualified for the practice manager position; and (5) she was denied a job by Mr. Ahearn because of the negative remarks concerning her performance made by her supervisor Mr. Jones.
“[O]nce a party bears the initial burden of demonstrating an entitlement to judgment as a matter of law, the opposing party may not defeat summary judgment by attempting to generate a factual dispute as to immaterial issues: ‘The presence of a factual dispute will not defeat a motion for summary judgment unless the fact in dispute is a material one.’ [Citation.]” (Romero v. American President Lines, Ltd., supra, 38 Cal.App.4th at p. 1203.) Given that Genesis resulted in the elimination of 250 positions, including plaintiff’s position, for legitimate reasons unrelated to her gender, it is not enough for plaintiff to show that Sun’s reasons for eliminating her job were “‘wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent.’” (Hersant v. Department of Social Services, supra, 57 Cal.App.4th at p. 1005.)
V. Plaintiff Failed to Present Evidence of Pretext
The trial court found that plaintiff failed to present admissible evidence showing that Sun’s stated reasons for her termination were a pretext for illegal sex discrimination. On appeal, plaintiff contends that because she established a prima facie case of employment discrimination, she necessarily raised a genuine issue of material fact regarding Sun’s stated reasons for its employment decisions. She argues that Sun’s “own evidence, showing conflicting rationales or justifications for its employment decisions, as well as her satisfactory job performance and apparent qualifications to perform in CSO/NEWORG is sufficient evidence over and above the prima facie presumption to raise reasonable inferences of pretext.” We disagree.
Having independently reviewed the record, we conclude that plaintiff failed to establish either a prima facie case of employment discrimination or that Sun’s stated reasons for her termination were pretextual. The record contains no evidence that plaintiff’s sex played any part in the reorganization of Sun’s sales force, the elimination of her position, or Sun’s financial inability to transfer her and 34 others, both male and female, from the PS to the Global DCP.
More importantly, there is no evidence to suggest that Mr. Allsopp was hired over plaintiff as a result of sex discrimination. According to Mr. Ahearn’s deposition testimony, after receiving plaintiff’s August 8, 2004 email, he decided not to hire plaintiff based on information received from Mr. Jones. Thereafter, Mr. Allsopp was transferred to the DCP in September 2004, and selected as practice manager in November 2004. Although there was some evidence to suggest that the practice manager position was not posted, as it should have been, the record does not explain why the position was not posted. Given that the job might not have been posted for any number of reasons unrelated to sex discrimination, the mere fact that it was not posted does not in itself create a triable issue of material fact. Similarly, Mr. Allsopp’s selection as practice manager in November 2004 does not in itself show that the decision was motivated by a discriminatory attitude toward women in general or plaintiff in particular. Employers have the right to hire the employees of their choice, as long as they do so for nondiscriminatory reasons. The mere hiring of a lone male employee with less seniority and experience for a position similar to plaintiff’s prior position does not, without more, indicate that the decision was discriminatory.
Regardless of plaintiff’s other efforts to obtain employment by contacting John Barto and Chris Hause, there is no evidence to support an inference that she was denied those jobs, or any others, because of her gender. Indeed, as we noted, plaintiff testified at her deposition that she was unaware of any other position that Sun denied to her because of her gender. Additionally, the fact that plaintiff’s back pain prevented her from applying for the posted engagement manager positions in August 2004 does not suggest that she was the victim of sex discrimination. In short, the evidence as a whole is insufficient to permit a rational inference that plaintiff was terminated for discriminatory reasons.
VI. The Trial Court Sustained Sun’s Objections to Plaintiff’s Evidence
A. Exhibit E
The trial court sustained Sun’s objection to paragraph 8 of plaintiff’s declaration—which stated that of the 57 employees in her group, the only women who were retained were administrators—on the ground that the supporting document, exhibit E, was not authenticated. On appeal, plaintiff concedes that “this objection is technically correct,” but argues the excluded evidence was “relevant to both the issues of pretext and the ultimate issue of whether its actions were motivated by an intent to discriminate.” Given that the evidence was properly excluded, however, the trial court could not rely on it. (§ 437c, subd. (c).)
B. Mr. Johnen’s Testimony
In her responsive separate statement, plaintiff cited the deposition testimony of Mr. Johnen, a fellow employee, to dispute many of the facts listed in Sun’s separate statement. In reply, Sun objected that plaintiff had failed to lay a proper foundation establishing: (1) Mr. Johnen’s competence to testify to anything regarding Genesis or the Genesis team or its functions; (2) that he was a member of the Genesis team; (3) that he was involved in the team; or (4) that he had personal knowledge of its membership or of any of the proffered facts.
In the summary judgment order, the trial court adopted the bulk of Sun’s separate statement and, where relevant, expressly sustained Sun’s objections to Mr. Johnen’s testimony.
On appeal, plaintiff describes Mr. Johnen’s testimony and claims that it established the existence of triable issues of material fact. The problem, however, is that Mr. Johnen’s testimony was excluded for lack of foundation, which is an issue not mentioned in plaintiff’s brief. Given plaintiff’s failure to brief the issue regarding the exclusion of Mr. Johnen’s testimony, we deem the matter to be waived. “Every brief should contain a legal argument with citation of authorities on the points made. If none is furnished, the court may treat it as waived, and pass it without consideration. [Citation.]” (Eureka Teachers Assn. v. Board of Education (1988) 199 Cal.App.3d 353, 369.)
Plaintiff contends that triable issues of fact exist as to the truthfulness of Sun’s explanation for Mr. Allsopp’s hiring. She bases this contention upon Mr. Johnen’s testimony, which was excluded for lack of foundation. In addition, plaintiff argues that Mr. Jones’s negative comments to Mr. Ahearn about her performance were refuted by Elke Rogers Nickman’s notes, which also were excluded because they were unauthenticated. For the reasons stated above, we treat these issues as waived.
VII. The Continuance Was Properly Denied
Although this was not articulated below as a ground for continuing the summary judgment motion, plaintiff argues on appeal that she should have been granted a continuance in order to cure what she describes as technical defects by authenticating documents and laying a proper foundation for the excluded evidence. Plaintiff concedes, however, that she did not comply with the summary judgment statute, which requires that requests for continuance be made “on or before the date the opposition response to the motion is due.” (Code Civ. Proc., § 437c, subd. (h).) Given that the request was untimely, there was no abuse of discretion in its denial.
VIII. Summary Judgment Was Properly Granted
Plaintiff concedes that her “claims for sex discrimination, violation of the FEHA, and termination in violation of public policy all stand or fall together as they all depend upon Appellant raising a reasonable inference of sex discrimination.” For the reasons stated above, we conclude that summary judgment was properly granted on these claims.
Plaintiff contends that the summary judgment of her implied-in-fact contract claim should be reversed because there was evidence of an implied promise to uniformly follow Sun’s internal policies and procedures, which was breached by the failure to post the practice manager position given to Mr. Allsopp. Contrary to her assertion, the record contains no such evidence. The undisputed evidence established that plaintiff was an at-will employee and could be discharged at any time. Accordingly, summary judgment was properly granted on this cause of action. (Davis v. Consolidated Freightways (1994) 29 Cal.App.4th 354, 366.)
Given that the trial court granted Sun’s summary judgment motion, the parties agree there are no issues to be resolved regarding the punitive damages claim.
IX. Attorney Fees
Given that Sun has not filed a motion seeking attorney fees and no fees were awarded, there are no issues to be resolved regarding attorney fees.
DISPOSITION
The judgment is affirmed. Sun is awarded its costs on appeal.
We concur: EPSTEIN, P. J., WILLHITE, J.