Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Los Angeles County Super. Ct. No. BC339319, Judith Chirlin, Judge.
Law Offices of Joseph M. Lovretovich, Joseph M. Lovretovich and Nicholas W. Sarris for Plaintiff and Appellant.
O’Melveny & Myers and Michael G. McGuinness for Defendant and Respondent.
CROSKEY, J.
In January 2005, plaintiff Karla De La Torre informed her employer, Unified Western Grocers Inc. (“Unified”) that she was pregnant. In May 2005, De La Torre’s supervisor began to suspect that De La Torre was falsifying her timecards, padding them with extra hours in order to obtain pay to which she was not entitled. For three weeks, De La Torre was placed under covert surveillance, during which time her arrival and departure times from work were noted. Upon comparing the actual times with the times claimed by De La Torre in her timecards, Unified discovered numerous discrepancies in the timecards – all claiming more time than De La Torre had actually worked. De La Torre was terminated for falsifying her timecards. She brought suit for pregnancy discrimination and related causes of action. Summary judgment was entered in favor of Unified. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The dispositive facts in this case are undisputed.
In January 2003, Unified hired De La Torre as the administrative assistant to three individuals: Don Gilpin; Terry Ann Bodwin; and Marsha Miller. Gilpin subsequently moved to Unified’s executive offices, leaving Bodwin and Miller as De La Torre’s only direct supervisors. De La Torre also did work for John Meno, although he was not her official supervisor.
De La Torre was a salaried non-exempt employee. She was required to fill out a timecard on a weekly basis. The timecard had five columns on it: (1) in; (2) out; (3) total hours; (4) regular hours; and (5) overtime hours. De La Torre used the third column not to list her total hours, but to designate how much time she took for her lunch break. Before turning in her timecard to be compensated, De La Torre was required to obtain the signature of one of her supervisors. Bodwin, Miller, and Meno were all qualified to sign De La Torre’s timecards, and one of them would sign the card each week.
In January 2005, De La Torre learned that she was pregnant. Prior to this time, Bodwin had done or said nothing to De La Torre to suggest hostility to women who become pregnant. De La Torre told Bodwin that she was pregnant during a conversation in Bodwin’s office. Bodwin’s reaction to this news is disputed. Bodwin testified that she congratulated and hugged De La Torre. De La Torre testified that Bodwin told her “I don’t know how you ladies do it. Having babies only gets in the way of you getting ahead professionally.” According to De La Torre, Bodwin also told her that her timing was not good because her due date was during a busy time in the office.
De La Torre asserts that Bodwin also asked her whether it was a wise decision to become pregnant considering her size. While this statement, if made, was clearly rude and intrusive, it does not reflect a discriminatory animus against pregnant women.
De La Torre had previously had a positive relationship with Bodwin. When De La Torre had been experiencing financial difficulties, Bodwin had personally loaned her $500, to be repaid on her own schedule. Bodwin had a picture of De La Torre’s first child on her desk, along with pictures of her own nieces and nephews and the children of another Unified employee. De La Torre perceived that Bodwin became “distant” after learning of De La Torre’s pregnancy.
During her pregnancy, De La Torre requested time off to attend pre-natal doctors’ appointments. Unified approved each and every one of these requests. Bodwin never (1) expressed anger at De La Torre for the amount of time she was taking off for doctors’ appointments, (2) told her not to attend doctors’ appointments, (3) told her to schedule her doctors’ appointments after work, or (4) did anything to make De La Torre feel uncomfortable about attending any of her doctors’ appointments.
In opposition to Unified’s separate statement of undisputed facts, De La Torre argues that this fact is disputed on the basis that she had been “urged by [Meno] to schedule her doctor’s appointments late in the day so [she] could be at work and keep Bodwin happy.” Even if this is true, it is undisputed that Unified did not reject any of De La Torre’s requests for time off for an appointment, or ask her to reschedule any appointment she had already made.
On April 26, 2005, De La Torre e-mailed Bodwin to inform her that she would be leaving early for a pre-natal appointment the next day. Bodwin replied, “ok thanks.” On Thursday, May 12, 2005, De La Torre e-mailed Bodwin saying that she had a “three hour glucose tolerance test” scheduled for the following Monday, and requested a personal day for that day. She also indicated a pre-natal appointment that Wednesday at 4:30 p.m. She stated, “I will come in earlier that day and take a 30 minute lunch so that I could leave at 4:00[ ]p.m.” Bodwin replied, “Sounds like a plan.”
On May 12, 2005 – the same day as the above e-mail exchange – Bodwin reviewed the April 2005 budget for her department. She noticed a line-item in the budget for overtime in the amount of $448. De La Torre was the only nonexempt employee in the department; no other employees were eligible for overtime. Bodwin reviewed department budgets for prior months and found overtime expenditures for each of the prior 12 months. Bodwin was surprised by this, because she was unaware of any projects warranting De La Torre to work overtime, and she had not authorized any such overtime. On the following day, Bodwin spoke with De La Torre’s other supervisors, Miller and Meno, and was advised that they had not authorized De La Torre to work overtime. The three then reviewed De La Torre’s timecards and learned that she was regularly claiming overtime. That day, Bodwin made a notation of the time De La Torre left the office at the end of the work day; De La Torre left at 4:55 p.m. The following Monday, May 16, 2005, Bodwin obtained De La Torre’s weekly timecard; De La Torre had reported a departure time of 5:15 p.m. for May 13, 2005. As De La Torre had arrived at work at 7:45 a.m. and taken only a half hour lunch, she reported 8 regular hours and 1 hour overtime for that day.
De La Torre notes that Bodwin received the department budget monthly and typically reviewed the budget when received. However, she agrees that Bodwin “did not notice that [De La Torre] had been compensated for overtime hours worked for the previous year until May 12, 2005.”
As a supervisor was required to sign De La Torre’s timecard prior to its submission, the question arises as to how De La Torre could have submitted timecards claiming overtime without her supervisors knowing it. Meno testified that when De La Torre gave him her timecards to sign, she had not yet written anything in the “overtime hours” column. Meno said that he would quickly review the card to make sure De La Torre had written “8” in the “regular hours” column for each day and a total of “40” regular hours at the bottom. He would then sign the card and give it right back to her. The inference is that De La Torre would make entries in the “overtime hours” column after her timecard had been approved.
That day, Bodwin reported her findings to Gilpin, her direct supervisor. Miller and Meno were also present. Bodwin, Miller and Meno all stated that they had not authorized the overtime. All four were “alarmed” that De La Torre had apparently padded her hours by at least 20 minutes on the previous Friday, and they wanted to determine whether De La Torre regularly overstated her hours. It was decided that De La Torre’s arrival and departure times would be observed for at least two weeks. Gilpin, Bodwin, Miller and Meno wanted the loss prevention department to perform the surveillance, but the loss prevention officers were unavailable for a few days. Therefore, Bodwin and Meno observed De La Torre’s comings and goings from May 17 through May 19, and two loss prevention officers conducted the surveillance from May 20 through June 3, 2005. The loss prevention officers reported their observations to Bodwin in sworn statements.
Bodwin testified that she asked loss prevention to get involved because she “wanted an independent, an outside person besides [herself] and [Meno].”
Mike Massey, the Director of Loss Prevention, was generally responsible for observing De La Torre’s arrival by sitting in a car parked either in the parking lot used by De La Torre or across the street. When De La Torre arrived, he referred to his wristwatch and radio clock, which were synchronized, to record De La Torre’s arrival time on a notepad. Steve Frazier, Manager of Loss Prevention, was generally responsible for observing De La Torre’s departure time from one of the same locations. When De La Torre departed, Frazier checked the time on his cell phone and immediately noted it on a piece of paper.
De La Torre had taken a personal holiday on May 16, 2005, for her glucose tolerance test. The test determined that she had developed gestational diabetes. When she returned to work she informed Bodwin of her diagnosis. Bodwin was “concerned” and wanted to know what that meant as far as De La Torre’s absences from work. De La Torre responded that she would have to draw blood during the day to check her blood-sugar levels, and that she would have more doctor’s appointments in addition to her regular pre-natal appointments. Bodwin did not appear disturbed, angry, or annoyed by De La Torre’s development of gestational diabetes.
According to De La Torre, they also talked about “how the little blood machine worked and how [she] had to do it and things like that and about [her] diet.”
The data collected during the surveillance of De La Torre established that 18 of the 26 time entries she reported on her timecards were inconsistent with the times she was observed arriving and departing. The comparison between De La Torre’s timecards and her observed arrivals and departures revealed that she was overstating her hours worked by anywhere from 12 to 50 minutes per day. For example, on May 19, 2005, De La Torre was observed arriving at 8:15 a.m.; her timecard reports arrival at 7:30 a.m. On May 26, 2005, De La Torre was observed departing work at 4:56 p.m.; her timecard reports departure at 5:30 p.m. On June 3, 2005, De La Torre was observed arriving at 8:20 a.m., taking a one-hour lunch, and leaving at 5:00 p.m.; her timecard reports arrival at 7:45 a.m., a 30-minute lunch, and departure at 5:15 p.m. – resulting in a claim of one hour of overtime. None of the discrepancies on the timecards were in Unified’s favor.
During this time, Bodwin was also noting the length of De La Torre’s lunch breaks, when she could do so. Her observations revealed that, in addition to the inconsistencies in arrival and departure times, De La Torre was understating the length of her lunch breaks.
Indeed, for the 13 work days De La Torre was observed, she claimed at least one-half hour of overtime on 11 of them.
There was a single five-minute discrepancy in Unified’s favor; De La Torre left work at 1:35 p.m. on June 1, 2005, but reported leaving at 1:30 p.m. Unified did not consider five minutes to be a discrepancy and overlooked discrepancies in De La Torre’s favor of similar duration.
Because of the significant discrepancies between De La Torre’s timecards and Unified’s observations, Bodwin, Gilpin, Meno and Miller concluded that she was falsifying her timecards by claiming pay for time she did not work. Unified deems timecard falsification to be a serious offense that warrants termination; De La Torre had been aware of this rule. On June 6, 2005, Gilpin, Bodwin and Miller made the collective decision to terminate De La Torre’s employment. On June 7, 2005, a meeting was held with De La Torre. Bodwin, Meno and Miller were present; Gilpin was not. Meno took notes at the meeting. His notes indicate that Bodwin “start[ed] going over copies of [De La Torre]’s timecards – showing discrepancies between reported times and observed times and asked why [De La Torre] reported fake times. She stated that there is no overtime, and there hasn’t been a need for it except maybe on rare occasion, but not any time in recent months.” De La Torre replied, “ ‘No, I know there has been some. I’m sure there has been.” Miller told her “I don’t understand why. No one approved overtime and there hasn’t been any overtime.” Miller advised De La Torre that she could resign her employment with Unified or have her employment terminated. De La Torre initially agreed to resign, but subsequently changed her mind. Miller therefore advised her that her employment was terminated. According to De La Torre, she then said to Bodwin, “I am seven months pregnant. Who is going to hire me now?” Bodwin responded, “It’s not my problem. I didn’t tell you to get pregnant.”
Gilpin testified that he did not intend for De La Torre to be terminated until after she had been given the opportunity to explain the discrepancies. From this, De La Torre suggests that the decision to terminate her was not, in fact, made until the June 7, 2005 meeting. However, Gilpin had also testified that, despite his lack of presence at the meeting with De La Torre, he had been involved in the collective decision to terminate her employment. We interpret this to mean that on June 6, 2005, the decision had been made to terminate De La Torre’s employment unless she satisfactorily explained the discrepancies at the June 7, 2005 meeting.
De La Torre argues that Bodwin, not Miller, was the one who ultimately terminated her employment. At her deposition, De La Torre was asked, “Do you remember Ms. Miller saying to you when you said you had changed your mind, that the company would then have to go ahead and terminate you?” De La Torre answered, “Yes, she did.” It is therefore undisputed that Miller terminated De La Torre’s employment.
While this statement, much like the one regarding De La Torre’s weight, is rude and somewhat heartless, it does not demonstrate a discriminatory animus. According to De La Torre’s own testimony, the statement was made in response to De La Torre’s implied request to be kept on at Unified, despite her timecard falsification, because she was pregnant. That Bodwin did not chose to extend a second chance to De La Torre on the basis of De La Torre’s pregnancy is not evidence that Bodwin treated pregnant employees any differently from non-pregnant ones.
1. Allegations of the Complaint
De La Torre brought this action against Unified on September 2, 2005. The operative complaint is the first amended complaint. De La Torre alleges nine causes of action: (1) pregnancy discrimination in violation of the Fair Employment and Housing Act (“FEHA”); (2) wrongful termination in violation of FEHA; (3) wrongful termination in violation of public policy; (4) retaliation in violation of FEHA; (5) harassment in violation of FEHA; (6) defamation; (7) disability discrimination in violation of FEHA; (8) failure to accommodate in violation of FEHA; and (9) failure to engage in the interactive process in violation of FEHA. Her first three causes of action are based on her termination, which she alleges was due to her pregnancy. Her retaliation cause of action is based on the purported protected activity of “becoming pregnant” and “attending necessary doctor’s appointments.” Her defamation cause of action is based on Bodwin’s statements at the termination meeting accusing her of falsifying timecards and calling her a liar. The disability and accommodation-related causes of action were based on the purported disability of gestational diabetes.
De La Torre declined to oppose the motion for summary judgment as to this cause of action. We need not address it further.
Bodwin, however, was not named as a defendant; Unified was the only named defendant.
2. Unified’s Motion for Summary Judgment
Unified brought a motion for summary judgment raising numerous arguments. With respect to all causes of action but defamation, Unified argued that it had a legitimate non-discriminatory reason for terminating De La Torre’s employment, specifically, timecard falsification. Unified did not argue that it terminated De La Torre’s employment for working overtime without authorization; Unified’s motion was based solely on De La Torre’s falsification of her arrival and departure
We need not address many of these arguments. We note, however, the apparent merit to Unified’s argument that “becoming pregnant” and “attending doctor’s appointments” are not protected activities sufficient to support a cause of action for retaliation under FEHA. FEHA prohibits retaliatory acts against “any person because the person has opposed any practices forbidden by [FEHA] or because the person has filed a complaint, testified, or assisted in any proceeding under [FEHA].” (Gov. Code, § 12940, subd. (h).) While FEHA directly prohibits discrimination on the basis of pregnancy (Gov. Code, §§ 12940, subd. (a); 12926, subd. (p)), the act of becoming pregnant itself does not qualify as an act of “oppos[ing] any practice forbidden by [FEHA]” sufficient to support a retaliation cause of action.
times on her timecards. Unified supported its motion with deposition excerpts and declarations setting forth Unified’s suspicion of timecard falsification, its surveillance of De La Torre, and its ultimate termination of her employment. Unified also submitted copies of De La Torre’s timecards, Bodwin’s e-mails approving De La Torre’s doctors’ appointment requests, the documentation demonstrating the results of the surveillance, and Meno’s handwritten notes from the termination meeting. Unified submitted excerpts from De La Torre’s deposition, in which she testified that the “only person” who she felt “really had any animosity against [her] because of [her] pregnancy and gestational diabetes” was Bodwin. De La Torre had also testified that she believed Meno and Miller were honest people, and she is not aware of any animus on the part of the loss prevention officers. When specifically asked for any explanation she might have for the differences between her arrival and departure times as observed by the loss prevention agents and the times she reported on her timecard, she could think of none.
We quote the relevant deposition testimony:
As to the defamation cause of action, Unified argued that the common interest privilege provided a complete defense, because the alleged statements were not made with malice.
3. De La Torre’s Opposition
In opposition to the summary judgment motion, De La Torre conceded that most of the facts in this case were undisputed. She argued, however, that Unified’s purported non-discriminatory reason for terminating her employment was mere pretext for unlawful discrimination based on pregnancy. She disputed the suggestion that her timecards had been falsified, with the bald assertion that she “did not falsify her timecard[s] during her employment at Unified.” She provided no explanation for any discrepancy between the times observed and the times she had reported, although she did attempt to challenge the objective validity of the loss prevention officers’ observations by noting that the officers did not record her arrivals and departures on video equipment with a time stamp, and had not synchronized their timepieces with hers. In Unified’s separate statement of undisputed facts, Unified had asserted, “Plaintiff knows of no explanation for the inconsistencies between her timecards and the observation records provided by Bodwin, Meno, [and the loss prevention officers].” In response, De La Torre asserted, “Disputed. The inconsistencies are that Plaintiff was terminated because she was pregnant, suffering from a disability that caused her to miss work, and because her eventual pregnancy leave was to coincide with [a busy time in the office].” De La Torre’s opposition argued that it was “about [the] time” of her diagnosis of gestational diabetes that Unified “began to scrutinize and [pore] over every aspect of Plaintiff’s performance.” She argued that Unified “found fault with [her performance] only after she (i) told them she was pregnant and, further, (ii) told them that her gestational diabetes would require that she miss some time from work.” She argued that timecard falsification was a “trumped-up charge” based on “the most cursory of investigations.” Finally, she noted that Unified itself recognized that she had not falsified her timecards because, when she was terminated, she was paid for all of the time she had submitted on her timecards.
De La Torre did submit testimony indicating that sometimes she was asked to meet Miller off-site at 7:30 a.m., and in those cases began work at 7:30 a.m. although she did not arrive at the office until after 8:00 a.m. De La Torre did not identify any entries on her challenged timecards that corresponded to any such meetings, nor did she offer any explanation for the discrepancies with respect to the times she departed the office at the end of the day. De La Torre submitted this evidence, and some other testimony, to prove that she had been informally authorized to work overtime for Miller. Yet Unified’s summary judgment motion was not based on the premise that De La Torre had been terminated for working unauthorized overtime, but on the fact that she had been terminated for timecard falsification.
4. Hearing, Ruling and Appeal
After Unified submitted its reply, a hearing was held. The trial court granted the motion for summary judgment. Judgment was entered accordingly and De La Torre filed a timely notice of appeal.
ISSUES ON APPEAL
On appeal, De La Torre argues that she raised a triable issue of fact with respect to each cause of action pleaded in her first amended complaint. However, with the exception of her cause of action for defamation, De La Torre impliedly concedes that the viability of each of her causes of action depends on her having raised a triable issue of fact as to the issue of pretext. We therefore consider whether De La Torre successfully raised a triable issue of fact as to pretext. Concluding she did not, we turn our attention to the cause of action for defamation. We conclude that the cause of action is governed by the conditional common interest privilege, and that De La Torre has failed to raise a triable issue of fact as to the issue of malice. We therefore affirm the summary judgment.
In other words, she argues that she raised a triable issue of fact as to pretext with respect to each cause of action, which therefore should defeat summary judgment.
DISCUSSION
1. Standard of Review
“ ‘A defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiff’s asserted causes of action can prevail.’ (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.) The pleadings define the issues to be considered on a motion for summary judgment. (Sadlier v. Superior Court (1986) 184 Cal.App.3d 1050, 1055.) As to each claim as framed by the complaint, the defendant must present facts to negate an essential element or to establish a defense. Only then will the burden shift to the plaintiff to demonstrate the existence of a triable, material issue of fact. (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064-1065.)” (Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248, 252.) “There is 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.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A declaration which simply contradicts a prior discovery admission is not normally sufficient to raise a triable issue of fact. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21-22.)
We review orders granting or denying a summary judgment motion de novo. (FSR Brokerage, Inc. v. Superior Court (1995) 35 Cal.App.4th 69, 72; Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 579.) We exercise “an independent assessment of the correctness of the trial court’s ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law.” (Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222.)
2. Law of Employment Discrimination
FEHA prohibits discriminatory employment practices. It is an unlawful employment practice “[f]or an employer, because of the . . . sex . . . of any person, to . . . discharge the person from employment . . . or to discriminate against the person in . . . terms, conditions, or privileges of employment.” (Gov. Code, § 12940, subd. (a).) “Sex” is defined to include “pregnancy.” (Gov. Code, § 12926, subd. (p).)
The courts have adopted a three-stage burden-shifting test for trying claims of discrimination. At trial, the plaintiff has the initial burden to establish a prima facie case of discrimination. (Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 354.) The plaintiff must provide evidence that “(1) [plaintiff] was a member of a protected class, (2) [plaintiff] was qualified for the position . . . sought or was performing competently in the position . . . held, (3) [plaintiff] suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.” (Id. at p. 355.) Once the plaintiff has established a prima facie case, a presumption of discrimination arises. The burden then switches to the employer to rebut the presumption by producing admissible evidence sufficient to raise a genuine issue of fact that its action was taken “for a legitimate, nondiscriminatory reason.” (Id. at pp. 355-356.) It does not matter if the employer’s reasons were not wise or correct, as long as they were nondiscriminatory. (Id. at p. 358.) Once the employer has met the burden, the presumption of discrimination disappears. “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.” (Id. at p. 356.) “The ultimate burden of persuasion on the issue of actual discrimination remains with the plaintiff.” (Ibid.)
As discussed above, De La Torre impliedly concedes that a similar three-stage burden-shifting test applies to all of her causes of action except defamation, whether based on pregnancy discrimination, retaliation, disability discrimination, or failure to accommodate.
Our Supreme Court has yet to decide how the shifting burden affects motions for summary judgment, when the defendant wishes to challenge plaintiff’s prima facie case. (Guz v. Bechtel National Inc., supra, 24 Cal.4th at pp. 356-357.) However, it is clear that if the defendant moves for summary judgment by setting forth competent, admissible evidence of a nondiscriminatory reason for its decision, the burden then shifts to the plaintiff “to rebut this facially dispositive showing by pointing to evidence which nonetheless raises a rational inference that intentional discrimination occurred.” (Id. at p. 357.) “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.” (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1005.) “ ‘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. [Citations.] 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.” ’ ” (Ibid.)
“ ‘[T]he plaintiff may establish pretext “either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.” ’ [Citation.] Circumstantial evidence of ‘ “pretense” must be “specific” and “substantial” in order to create a triable issue with respect to whether the employer intended to discriminate’ on an improper basis.” (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 68-69.) An “ ‘employer would be entitled to judgment as a matter of law . . . 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.’ ” (Guz v. Bechtel National Inc., supra, 24 Cal.4th at p. 362.) However, with direct evidence of pretext, “ ‘ “a triable issue as to the actual motivation of the employer is created even if the evidence is not substantial.” [Citation.] The plaintiff is required to produce “very little” direct evidence of the employer’s discriminatory intent to move past summary judgment.’ [Citation.]” (Morgan v. Regents of University of California, supra, 88 Cal.App.4th at p. 69.)
The law will “hold employers responsible where discriminatory or retaliatory actions by supervisory personnel bring about adverse employment actions through the instrumentality or conduct of other corporate actors who may be entirely innocent of discriminatory or retaliatory animus.” (Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 116.) “Imputation of . . . animus will be justified by any set of facts that would permit a jury to find that an intermediary, for whatever reasons, simply carried out the will of the actuator, rather than breaking the chain of causation by taking a truly independent action.” (Id. at pp. 114-115, fn. 14.)
3. Summary Judgment was Proper on Discrimination Causes of Action
Assuming without deciding that De La Torre established a prima facie case of discrimination, we next consider whether Unified produced admissible evidence sufficient to raise a genuine issue of fact that its action was taken for a legitimate, nondiscriminatory reason. Clearly, it did. Unified produced substantial evidence indicating that De La Torre’s employment was terminated for timecard falsification. The burden then shifted to De La Torre to rebut this showing by pointing to evidence which raises a rational inference that intentional discrimination nonetheless occurred.
De La Torre established a prima facie case of pregnancy discrimination. It is disputed whether she established a prima facie case of disability discrimination or retaliation.
De La Torre argues that she has introduced both indirect and direct evidence of pretext. She argues that Bodwin’s reactions to her announcement of her pregnancy, and subsequent diagnosis of gestational diabetes, reflect an animus toward pregnant women. She argues that, when Bodwin realized that De La Torre’s pregnancy-related doctor’s appointments would interfere with her work schedule, Bodwin began taking a close look at De La Torre’s timecards in order to manufacture a reason to terminate her employment. While she does not question the motives or honesty of the loss prevention officers who conducted the bulk of the surveillance, she believes their surveillance was incompetently conducted – and intentionally performed without any objectively verifiable record of their observations – in order to reach the predetermined result sought by Bodwin. Similarly, De La Torre does not question the motives or honesty of Meno, Miller and Gilpin, but she argues that Bodwin was the motivating force, and ultimate decisionmaker, in the decision to terminate her employment. Finally, she notes that Unified must have known that the purported reason for her termination, timecard falsification, was a baseless pretext, because Unified paid her for all of the hours she had claimed on her timecards.
In her brief on appeal, De La Torre again argues against the suggestion that she had worked unauthorized overtime. But Unified did not fire De La Torre for working unauthorized overtime, and Unified did not seek summary judgment on that basis. Thus, De La Torre’s arguments that Unified did not properly investigate her purported authorizations to work overtime are simply not relevant.
De La Torre argues that Bodwin “commence[d] her investigation upon learning that Ms. De La Torre was suffering from gestational diabetes and would require a modification to her work schedule.” From this fact, De La Torre infers that Bodwin “sought to terminate [her] immediately upon the disclosure of her condition.” But De La Torre’s factual premise is simply incorrect. De La Torre’s initial investigation began on the Thursday that De La Torre asked for time off on the following Monday to have her glucose tolerance test. De La Torre could not possibly have informed Bodwin of her gestational diabetes until after the test had been conducted and the gestational diabetes diagnosed.
None of De La Torre’s evidence, either considered alone or together, is sufficient to “ ‘demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in [Unified]’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them “unworthy of credence,” [citation], and hence infer “that [Unified] did not act for the [asserted] non-discriminatory reasons.” ’ ” (Hersant v. Department of Social Services, supra, 57 Cal.App.4th at p. 1005.) First, we address De La Torre’s direct evidence of a discriminatory animus on the part of Bodwin. De La Torre relies on Bodwin’s statement, five months before the investigation began, in response to De La Torre’s announcement that she was pregnant, “I don’t know how you ladies do it. Having babies only gets in the way of you getting ahead professionally.” The statement, which Bodwin denied making, is ambiguous on its face. The first sentence makes it appear to be a statement of admiration for women who successfully balance children and career. De La Torre interprets the second sentence as a statement that Bodwin believed that having children would get in the way of De La Torre getting ahead professionally, and, further, that Bodwin believed that pregnancy itself rendered De La Torre incapable of satisfactorily performing her job. The conclusion does not follow. Particularly when considered in light of the undisputed evidence that Bodwin approved all of De La Torre’s requests for time off for appointments, it is pure speculation that Bodwin’s single statement that having children gets in the way of professional advancement reflected Bodwin’s own intentions to disrupt De La Torre’s career because of her pregnancy.
Next, we consider the investigation. The investigation was not prompted by Bodwin alone, but also by Gilpin, Miller, and Meno – all of whom De La Torre believes possessed no discriminatory animus. Moreover, it was decided to ask loss prevention officers to conduct the surveillance precisely because loss prevention officers were independent, and had no stake in the result. The surveillance, which loss prevention officers conducted for two weeks, was well-documented by the loss prevention officers’ statements under oath as to their observations. De La Torre challenges the validity of the investigation because the loss prevention officers did not record her arrivals and departures on video equipment with a time stamp. Yet De La Torre also testified that she was not aware of any animus on the part of the loss prevention officers. Further, at her deposition, she could offer no explanation for the differences between her arrival and departure times as observed by the loss prevention officers and the times she reported on her timecard; she never suggested that the loss prevention officers might have been lying about what they had seen. In short, the surveillance was performed by unbiased loss prevention officers, who conducted their investigation over a sufficient period of time to guarantee the results were not anomalous, and recorded their observations in sworn statements. De La Torre has wholly failed to raise evidence upon which a reasonable factfinder could find the investigation to have been so slipshod as to render its results unworthy of credence.
One questions the presumed unimpeachable validity of such evidence as De La Torre could easily argue that the officers reset the clock in any video camera.
The fact that the loss prevention personnel did not synchronize their clocks with De La Torre’s watch is a red herring. Were there a significant difference between De La Torre’s watch and the clocks of the loss prevention personnel, the time entries for all arrivals, and all departures, would differ from the times recorded on De La Torre’s time card by the same amount on each occasion. A brief review of the documentary evidence establishes this was not the case; De La Torre’s implicit suggestion that the discrepancies were caused by her watch being set ahead or behind the clocks used by loss prevention personnel is wholly contradicted by the record.
De La Torre believes it was significant that the results were reported to Bodwin, but makes no suggestion that Bodwin somehow altered the results submitted to her.
Finally, we consider the evidence of the decision to terminate De La Torre’s employment. Unified submitted evidence that Gilpin, Bodwin and Miller, upon review of the results of the independent surveillance, decided to terminate De La Torre’s employment. De La Torre argues that Bodwin’s involvement in the decision infects the entire decision with her discriminatory animus. Yet, as we have discussed, De La Torre’s evidence of any actual bias on the part of Bodwin is wholly speculative. Even if De La Torre had raised a triable issue of fact that Bodwin was biased, she presented no evidence to suggest Gilpin (who was Bodwin’s supervisor) and Miller were tainted by Bodwin’s animus or were motivated by anything other than the results of the surveillance.
We also conclude the evidence that Unified ultimately paid De La Torre for all hours claimed in her time cards is irrelevant. That Unified apparently concluded termination of De La Torre’s employment was sufficient, and chose not to dock her pay or sue her for fraud, does not undermine Unified’s well-supported belief that De La Torre had falsified her timecards. De La Torre cites no authority for the proposition that a party must pursue all legal remedies for a wrongdoing in order to establish that it truly believed it has been wronged.
In short, Unified presented evidence that De La Torre’s termination was based on a two-week investigation, by concededly unbiased individuals, which provided incontrovertible evidence that she had committed timecard fraud. The termination decision was made by three individuals, two of whom were concededly not possessed of discriminatory animus. In response, De La Torre relied on a single ambiguous statement by one of her supervisors five months prior to the investigation, and her flat assertion that she had not, in fact, falsified her timecards. On this evidence, a trier of fact “could not reasonably conclude . . . that [Unified]’s stated reasons were implausible, or inconsistent or baseless; it would not be reasonable to conclude they were pretextual and used merely to veil an act of . . . discrimination.” (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1009.) As such, De La Torre has failed to defeat summary judgment with respect to her discrimination causes of action.
4. Summary Judgment was Proper with Respect to the Defamation Cause of Action
De La Torre next argues that the trial court erred in granting summary judgment with respect to her cause of action for defamation based on the accusations of timecard falsification made during the meeting in which she was terminated. Civil Code section 47 subdivision (c) provides a privilege for “a communication, without malice, to a person interested therein, (1) by one who is also interested.” For purposes of this section, “[m]alice . . . means ‘ “a state of mind arising from hatred or ill will, evidencing a willingness to vex, annoy or injure another person.” ’ ” (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 915.) “Malice may be established by showing the publisher of a defamatory statement lacked reasonable grounds to believe the statement was true, and therefore acted with a reckless disregard for the rights of the person defamed. [Citation.] However, negligence is not malice.” (Id. at p. 931.)
Unified sought summary judgment with respect to the defamation cause of action by asserting this privilege applied. De La Torre concedes that the privilege would otherwise apply, but argues that it does not apply because she has raised a triable issue of fact as to whether the communication was made with malice. It is apparent from our discussion above that De La Torre has failed to raise a triable issue of fact as to the issue of malice for the same reasons that she has failed to raise a triable issue of fact as to the issue of pretext. Unified submitted substantial evidence that Bodwin’s accusation that De La Torre had committed timecard fraud was based on the reasonable ground of the independent surveillance conducted by the loss prevention officers. De La Torre could not undermine this conclusion.
Indeed, De La Torre incorporates by reference her pretext argument into the section of her brief arguing malice.
DISPOSITION
The judgment is affirmed. Unified shall recover its costs on appeal.
We Concur: KLEIN, P. J., KITCHING, J.
“Q. I am not going to go through all of these entries, Ms. De La Torre, but to the extent that Mr. Frazier’s observations of your arrival and departure times conflict with the times that you have entered on your timecards, can you think of any explanation for that conflict?
“A. No, sir.
“…………………………………………………………….
“Q. And again to the extent that the times that Mr. Massey says he observed you arriving at work, do you have any explanation for any discrepancies between what Mr. Massey says and what you have entered on your timecard?
“A. No, sir.”