2018-00230569-CU-WT

Tamme Shinshuri vs. California Physicians Services

Nature of Proceeding: Motion for Summary Judgment and/or Adjudication

Filed By: Bauman, Sharon B.

Defendant California Physicians’ Service’s motion for summary judgment, or in the alternative, summary adjudication, is granted.

In this employment action self-represented Plaintiff Tamme Shinshuri alleges causes of action for race and gender discrimination in violation of FEHA, retaliation in violation of FEHA, aiding and abetting a FEHA violation and failure to prevent discrimination and retaliation. Plaintiff was employed as an Instructional Designer in its Performance and Learning organization. Defendant ultimately terminated Plaintiff for violations of its Code of Conduct. The causes of action addressed in this motion are the only ones remaining against Defendant.

Any party may move for summary judgment in any action or proceeding if the party contends that (1) the action or proceeding has no merit or (2) there is no defense to the action or proceeding. CCP 437c(a). A cause of action has no merit if one or more of the elements of the cause of action cannot be separately established, even if that element is separately pleaded, or a defendant establishes an affirmative defense to that cause of action. CCP §437c(o).

The Court must grant a motion for summary judgment 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. (CCP §437c(c); Mann v. Cracchiolo (1985) 38 Cal.3d 18, 35). Section 437c(c) imposes an affirmative duty on a Court to grant summary judgment motion in appropriate case. (Preach v. Moister Rainbow (1993) 12 Cal. App. 4th 1441, 1450). The Court must decide if a triable issue of fact exists; if none does, and the sole remaining issue is one of law, the Court has a duty to determine it. ( Pittelman v. Pearce (1992) 6 Cal. App. 4th 1436, 1441; see also Seibert Sec. Servs., Inc. v. Superior Court (1993) 18 Cal. App. 4th 394, 404).

In evaluating a motion for summary judgment or summary adjudication the court engages in a three step process. The Court first identifies the issues framed by the pleadings. The pleadings define the scope of the issues on a motion for summary judgment or summary adjudication. (FPI Dev. Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382). Because a motion for summary judgment or summary adjudication is limited to the issues raised by the pleadings (Lewis v. Chevron (2004) 119 Cal. App. 4th 690, 694), all evidence submitted in support of or in opposition to the motion must be addressed to the claims and defenses raised in the pleadings. An issue that is “within the general area of issues framed by the pleadings” is properly before the court on a summary judgment or summary adjudication motion. (Lennar Northeast Partners v. Buice (1996) 49 Cal. App. 4th 1576, 1582-1583.) The Court cannot consider an unpleaded issue in ruling on motion for summary judgment or adjudication. (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541.) The papers filed in response to a defendant’s motion for summary judgment may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings. Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342.

Next, the Court is required to determine whether the moving party has met its burden. A defendant moving for summary judgment bears the burden of persuasion that one or more elements of the plaintiffs cause of action cannot be established, or that there is a complete defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal 4th 826, 850, quoting CCP §437c(p)(2)). A defendant is not required to conclusively negate one or more elements of the plaintiffs cause of action; (Saelzer v Advance, Group 400 (2001) 25 C4th 763, 780-781). Rather, to meet its burden, the defendant is only required to show that the plaintiff cannot prove an element of its cause of action, i.e., that the plaintiff does not possess and cannot reasonably obtain evidence necessary to show this element. Aguilar v Atlantic Richfield Co., supra, 25 Cal 4th at pp. 853-855). Once the moving party has met its burden, the burden shifts to the opposing party to show that a material factual issue exists as to the cause of action alleged or a defense to it. CCP 437c(p). (see, generally Bush v. Parents Without Partners (1993) 17 Cal. App. 4th 322, 326-327). In ruling on the motion, the court must consider the evidence and inferences reasonably drawn from the evidence in the light most favorable to the party opposing the motion. (Aguilar, supra, 25 Cal.4th at p. 843.)

Once the burden shifts, Plaintiff may not rely on mere allegations or denials, but instead must set forth evidence of specific facts. (Code Civ. Proc, § 437c, subd. (o).) Speculation does not constitute the kind of “substantial responsive evidence” plaintiff needs to carry her burden on a motion for summary judgment. (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997,1009.)

First Cause of Action (Race Discrimination)

Defendant’s motion is granted.

Plaintiff alleges that Defendant discriminated against her on the basis of her race by declining to match charitable donations to Plaintiff’s outside business. Plaintiff alleges that Defendant conducted an internal investigation based on accusations from other employees that Plaintiff was recruiting employees to work for her company and soliciting donations which ultimately resulted in Defendant issuing her a coaching log and dissuaded her from participating in Defendant’s “giving program.” She alleges that non-African American employees were not reprimanded for engaging in similar solicitation activities and that she was ultimately dissuade from participating in Defendant’s charitable matching program and did not have the opportunity to raise funds for her selected non-profit.

Defendant contends that Plaintiff cannot meet her burden to show a prima facie case but that even if she could, it had legitimate non-discriminatory reasons for the alleged adverse action.

Under the three-part test developed in McDonnell Douglas Corp. v. Green (1972) 411 U.S. 792: “(1) The complainant must establish a prima facie case of discrimination; (2) the employer must offer a legitimate reason for his actions; (3) the complainant must prove that this reason was a pretext to mask an illegal motive.” (Morgan v. Regents of University of California (2001) 88 Cal. App. 4th 52, 68.)

A “burden-shifting” analysis applies in evaluating claims for discrimination and retaliation in employment. (Guz v. Bechtel National Inc. , Id. at p. 354; Dudley v. Dept. of Transp. (2001) 90 Cal.App.4th 255, 261; Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042) The plaintiff bears the initial burden to demonstrate a prima facie case of discrimination. (Guz, 24 Cal.4th at 354.) If the plaintiff meets this burden, a presumption of discrimination arises, and “the burden shifts to the employer to rebut the presumption by producing admissible evidence, sufficient to raise a genuine issue of fact and to justify a judgment for the employer that its action was taken for a legitimate, nondiscriminatory reason.” (Id. at 355-56, quotations, citations omitted.) If the employer sustains this burden, the presumption of discrimination disappears, and the plaintiff is afforded the opportunity to attack the employer’s proffered reasons as pretexts for discrimination. (Id. at 356.) On summary judgment, a defendant employer may meet its initial burden to show it is entitled to judgment as a matter of law by demonstrating that the plaintiff cannot demonstrate a prima facie case, and may proceed to present evidence of a nondiscriminatory basis for its employment action. ( See id. at 357.)

A prime facie case of discrimination generally requires the plaintiff to establish the following: (1) the plaintiff is a member of a protected group; (2) the plaintiff was qualified for the position sought or was performing competently in the position held; (3) the plaintiff was subjected to an adverse employment action; and (4) some other circumstance suggests discriminatory motive. (Guz, supra, 24 Cal.4th at 355.)

Prima Facie Case

According to Defendant, Plaintiff cannot establish a prima facie case because she has not alleged any adverse action. Defendant asserts that Plaintiff has only alleged that Defendant adversely affected her outside business but not that Defendant deprived her of any employment benefit.

The court’s analysis may benefit by clearly defining an adverse employment action. An adverse action is an act by the employer that “materially affects the terms, conditions, or privileges of employment.” (McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal. App. 4th 377, 386.) Not every change in the conditions of employment constitutes an adverse employment action. A change that is merely contrary to the employee’s interests or not to the employee’s likes is insufficient; the plaintiff must show the employer’s actions had a “detrimental and substantial effect on the plaintiff’s employment.” (Malais v. Los Angeles City Fire Dept. (2007) 150 Cal. App. 4th 350, 357)(citing McRae, supra, 142 Cal. App. 4th at 386-387.)

Against this backdrop and as seen from Defendant’s separate statement, before Plaintiff started working for Defendant she provided consulting services through her outside for-profit business Pedageo Media. (UMF 22) In 2014, while employed by Defendant, she formed the Shinshuri Foundation “a social purpose organization” with for-profit and non-profit components. (UMF 24) Plaintiff also created numerous subsidiaries within that Foundation including Abrio (event management), Oracles of Truth (non-profit education company)(Oracles), Cosmic Vibe (an “edutainment” company), Niente (a media and IT services company), and Pedageo Media (the older consulting company). (UMF 25)

Defendant has a program called “Shield Cares” through which it agrees to match employee donations to California based 501(c)(3) non-profit companies which focus on health, human services, and/or environmental issues. (UMF 39, 41) Plaintiff asked whether Oracles of Truth qualified for matching donations and was told that it did not because the IRS designated it as an Arts, Cultural, and Humanities Organization with a subcategory of Television. (UMF 42) Plaintiff was informed that if she re-categorized Oracles of Truth with the IRS as a human services organization it would be eligible for donation matching. (UMF 43) Plaintiff indicated an intent to re-categorize the company but never did. (UMF 44-45)

In January 2016, Plaintiff’s Manager, Mr. Hopp, met with Plaintiff and documented the meeting in a coaching log. (UMF 57-58) The coaching log indicated that Mr. Hopp had received information from numerous employees that Plaintiff engaged in “repeated and unsolicited recruiting of existing [ ] Team resources” to help her with her external non-profit, solicited employees to donate to her outside nonprofit through Shield Cares and “appeared to repeatedly work on [non Blue Shield] items during normal business hours.” (UMF 59) Plaintiff was given a copy of the written coaching log on March 11, 2016. (UMF 64)

Here, the Court finds that Defendant has demonstrated that the pleaded subject conduct, specifically, the inability of plaintiff’s non-profit “Oracles of Truth” to participate in Shield Cares matching was not an adverse employment action. Indeed, Plaintiff alleges that she was unable to raise funds for her selected non-profit. Recall that an issue that is “within the general area of issues framed by the pleadings” is properly before the court on a summary judgment or summary adjudication motion. And, again, it must be underscored that typically, “adverse treatment that is reasonably likely to impair a reasonable employee’s job performance or prospects for advancement or promotion falls within the reach of the antidiscrimination provisions of sections 12940(a) and 12940(h).” (Yanowitz v. L’Oreal (2005) 36 Cal.4th 1028, 1054-1055.) Defendant’s conduct in informing Plaintiff that “Oracles of Truth” did not qualify for

Shield Cares matching donations did not affect Plaintiff’s job performance or prospects for advancement or promotion. Moreover, Defendant informed Plaintiff, two months before she was placed in the coaching program, and a year before she was terminated, that Oracles did not meet the matching requirements. As noted, Plaintiff took no action to re-characterize the company with the IRS.

In addition, Defendant’s evidence shows that Plaintiff cites only the fact that a Caucasian employee’s outside nonprofit organization was allowed to participate in Shields Care while hers was not. The mere fact, without more, that an employer distinguishes between two employees who happen to be of different gender or race is not sufficient to support a discrimination case. (Gonzales v. MetPath, Inc. (1989) 214 Cal.App.3d 422, 427 [“Gonzales tries to turn this discrimination into unlawful discrimination on the basis of gender or ancestry, because Wardell is of different gender and ancestry from her. But, as Gonzales must have known from the start, there is absolutely no evidence that MetPath drew such a distinction. She does not claim MetPath officials ever displayed any racist or sexist attitudes on the job so far as she knew or was able to discover using the compulsory process this action afforded her.”] .)

Defendant’s evidence is sufficient to shift to Plaintiff the burden of demonstrating the existence of a triable issue of material fact. Plaintiff has failed to sustain her burden. The Court must note that Plaintiff attempts to dispute numerous material facts set forth in Defendant’s separate statement, which, given the length of that statement and Plaintiff’s response, the Court cannot set out in detail. She has also submitted a voluminous separate statement of her own (“PSSUMF”). However, much as in Gonzales, Plaintiff has not provided any evidence that actually disputes in any material manner Defendant’s stated facts. In that regard, Plaintiff fails entirely to produce any evidence to show that in connection with the race discrimination claim that Defendant took any action that adversely affected her employment. She simply argues that Defendant improperly denied her the opportunity to participate in Shield Cares with respect to her outside companies as a result of the Coaching Log. (PSSUMF 15, 17, 28, 29, 74, 79) However, Plaintiff was told that Oracles of Truth did not meet Defendant’s criteria even before the coaching log was issued. But, in any event, at most this affected her outside business, not her employment with Defendant. To that point, her opposition argues that she was prevented from raising funds for her non-profit. Further, she provides no evidence from which discrimination could be inferred, and only refers to two other non-African American employees being allowed to solicit donations and engaging in outside employment opportunities. (PSSUMF 29) But Plaintiff presents no evidence that she was similarly situated as these other employees.

In reality Plaintiff’s opposition is premised almost entirely on unsupported legal and factual assertions, and even on an inadmissible “expert report” from an apparent friend and colleague of Plaintiff (which among other things purports to testify as to issues of law and relies almost entirely on the allegations of the SAC).

The Court notes that in opposition Plaintiff appears to argue that Defendant discriminated against her based on race (and gender) by requiring her to complete a Conflict of Interest form disclosing her outside interests in the Shinshuri Foundation. However, Plaintiff did not allege that this was an adverse action in the SAC, nor did she identify it as such in her discovery responses. As stated above, Plaintiff cannot oppose the motion on matters outside the pleadings. (Roth, supra, 25 Cal.App.4th at 541.)

Defendant’s motion for summary adjudication as to the first cause of action is granted on the basis that Plaintiff has failed to raise a triable issue of fact as to her prima facie case.

Legitimate Non-Discriminatory Reason

Defendant argues that even if Plaintiff set forth a prima facie case it had a legitimate reason for denying her request for [matching] donation request. Defendant’s evidence shows that it has objective criteria for determining which organization are eligible for donation matching under Shield Cares and that Plaintiff’s company did not meet that criteria. In addition, it issued the Coaching Log only after receiving numerous complaints that Plaintiff had solicited donations and was recruiting employees. (UMF 40-45, 59) Defendant has met its burden to show that it had legitimate non-discriminatory reasons for denying Plaintiff’s donation request.

Plaintiff then had the burden to show 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. [citations omitted].” (Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 140.) In this regard, Plaintiff was required to produce “substantial responsive evidence that the employer’s showing was untrue or pretextual” thereby raising at least an inference of discrimination.” (Hersant v. California Dept. of Social Services (1997) 57 Cal.App.4th 997, 1004-1005.) “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.” (Id. at 1002.) Plaintiff was required to “set forth specific facts demonstrating such weaknesses, implausibilities, incoherencies, or contradictions in the employer’s proffered legitimate reasons…that a reasonable fact-finder could rationally find them unworthy of credence.” (Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1038.) Plaintiff has not done so here. Indeed, her opposition fails entirely to address Defendant’s argument in this regard. At most, Plaintiff has pointed to two instances where non-African American employees were allowed to solicit donations for outside companies but she provides no evidence that these companies did not, for example, qualify under Shield Cares. Further, Defendant’s evidence showed that it even informed Plaintiff that if she re-characterized Oracles of Truth with the IRS it would meet the criteria, but Plaintiff took no action to do so. The fact that the Coaching Log was “based on hearsay” does not give rise to an inference of pretext. There is no requirement that an employer must meet the same evidentiary standards in making personnel decisions as parties must make in Court. In any event even if, arguendo, the Coaching Log was based on hearsay, there is nothing at all to suggest that Defendant made any decision premised on Plaintiff’s race. Plaintiff failed to meet her burden.

The motion is granted on the additional basis that Defendant had legitimate non-discriminatory reasons for denying Plaintiff’s donation request.

Second Cause of Action (Gender Discrimination)

Defendant’s motion is granted. Plaintiff alleges that Defendant discriminated against her based on gender when it denied her a promotion into the Lead Instructional

Designer (Lead “ISD”) position and instead hired Timothy Ruggiero, a white male, who was less qualified and experienced.

Defendant moves for summary adjudication on the basis that Plaintiff cannot meet her prima facie case and because it had legitimate non-discriminatory reasons for its actions.

Prima Facie Case

A prime facie case of gender discrimination generally requires the plaintiff to establish the following: (1) the plaintiff is a member of a protected group; (2) the plaintiff was qualified for the position sought or was performing competently in the position held; (3) the plaintiff was subjected to an adverse employment action; and (4) some other circumstance suggests discriminatory motive. (Guz, supra, 24 Cal.4th at 355.) “A defendant employer’s motion for summary judgment slightly modifies the order of these showings. If . . . the motion for summary judgment relies in whole or in part on a showing of nondiscriminatory reasons for the discharge, the employer satisfies its burden as a moving party if it presents evidence of such nondiscriminatory reasons that would permit a trier of fact to find, more likely than not, that they were the basis for the termination. [Citations.] To defeat the motion, the employee must then adduce or point to evidence raising a triable issue, that would permit a trier of fact to find by a preponderance that intentional discrimination occurred.” (Kelly v. Stamps.com, Inc. (2005) 135 Cal.App.4th 1088, 1097-1098.)

Defendant’s evidence shows that Plaintiff applied for a promotion to the Lead ISD position in April 2016 while she was receiving coaching. (UMF 117) Prior to this time, Defendant implemented job-leveling changes which resulted in updated job descriptions and expectations. (UMF 66) Plaintiff’s salary was increased as a result. Defendant required senior instructional designers, including Plaintiff, to “take a more active leadership role within the team” by coaching and mentoring other employees. (UMF 67) Plaintiff resisted this change, claiming it would infringe on the intellectual property rights of her Shinshuri Foundation. (UMF 71-72) Plaintiff stated that “I can’t do that.” Plaintiff demanded to be removed from a project that required her to coach her peers. (UMF 56) Plaintiff stated that the mentoring and coaching duties were “outside [her] job role” and that it was “clearly an unrealistic expectation” that should not be “forced upon individual employees…if it is not something they choose to do.” (UMF 78, 120)

The Lead ISD position required “coaching and developing ISD skills which include, reviewing courseware and learning methods.” (UMF 118) Plaintiff interviewed for the position but Defendant hired Mr. Ruggerio. (UMF 121-122) Plaintiff refused to meet with Mr. Ruggerio after he joined Defendant instead insisting to work only with Mr. Hopp. (UMF 126)

Defendant first argues that Plaintiff cannot show that she was qualified for the Lead ISD position. Generally a plaintiff must provide evidence that he or she was qualified for the position sought. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.) Defendant’s evidence cited above shows that Plaintiff refused to perform the coaching role that was a key function of the Lead ISD position. Indeed, she was resistant to these tasks and even requested removal from a project that required coaching. Defendant also argues that there is no evidence that it acted with a discriminatory motive. It asserts that Plaintiff’s only evidence is the fact that Mr. Ruggiero, a male,

was hired for the Lead ISD position. As discussed above, the fact that an employer distinguishes between two employees who happen to be of different gender or race is not sufficient to support a discrimination case. (Gonzales, supra, 214 Cal.App.3d at 427.) In addition, Defendant’s evidence shows that neither Plaintiff’s manager nor anyone with leadership responsibility made any negative gender related comments. (UMF 129-130) As noted by the United States Supreme Court, “[w]hatever evidentiary route the plaintiff chooses to follow, he or she must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted ‘discrimination … because of … sex.’”(Oncale v. Sundowner Offshore Services, Inc. (1998) 523 U.S. 75, 81.) Again, Defendant stresses that Plaintiff was not promoted because she refused to engage in the coaching functions required for the Lead ISD position. Defendant’s evidence is sufficient to shift to Plaintiff the burden of demonstrating the existence of a triable issue of material fact.

Plaintiff has failed to meet her burden. Plaintiff’s opposition argues that she demonstrated exceptional performance over the years, performed multiple job roles, mentored and coached her peers and developed complex learning solutions from scratch. She argues that Defendant marginalized her accomplishments during her annual performance reviews. (PSSUMF 51-53) She argues that her manager openly acknowledged her but secretly shared negative feedback in management meetings. (PSSUMF 37, 39, 43, 44, 47-49, 71) But she fails to dispute Defendant’s evidence that she was resistant to the coaching responsibilities, that she told Defendant that she refused to engage in those duties, or requested removal from a project because it required coaching. Plaintiff cannot now contradict her deposition testimony where she admitted that she refused to mentor and coach her peers, etc. (Benavidez v. San Jose Police Dept. (1999) 71 Cal.App.4th 853, 860.) Plaintiff has failed to demonstrate a triable issue of material fact as to whether she was qualified for the Lead ISD position or that Defendant acted with a discriminatory motive. The motion is granted on this basis alone.

Legitimate Non-Discriminatory Reason

In the alternative, Defendant has also shown that it had legitimate non-discriminatory reasons for not promoting Plaintiff. Indeed, the same evidence set forth above indicates that she was not promoted because she refused to agree to carry out the coaching function required of that position. Defendant has met its burden to show a legitimate non-discriminatory reason. Plaintiff’s argument discussed above fails to provide any evidence of pretext, much less “substantial responsive evidence that the employer’s showing was untrue or pretextual” thereby raising at least an inference of discrimination.” (Hersant v. California Dept. of Social Services (1997) 57 Cal.App.4th 997, 1004-1005.) The motion is granted on this basis as well.

Third Cause of Action (“Wrongful Termination in Violation of Public Policy § 12940(h)”)

Defendant’s motion is granted. In this cause of action Plaintiff essentially alleges that Defendant violated the public policy in FEHA when it discharged her in retaliation for refusing to coach and mentor her peers and complaining to Human Resources.

In order to establish a wrongful termination (“Tameny”) claim, Plaintiff must show an employer-employee relationship, Defendant discharged her, a violation of public policy, a causal link between the adverse employment action and the public policy violation, and damages. (Haney v. Aramark Uniform Servs. Inc. (2004) 121 Cal.App.4th 623, 641.)

Defendant argues that Plaintiff cannot establish that she engaged in any protected activity. Specifically it argues that Plaintiff cannot show that Defendant’s act of asking Plaintiff to coach and mentor her peers would violate the law. To that end Defendant has shown that Plaintiff claimed that the Shinshuri Foundation holds “intellectual property rights” in the way that Plaintiff’s mind works though Plaintiff has admitted that she has no copyright for her claimed “Mental Agility process. (UMF 134-135) Defendant argues that its conduct does not implicate public policy concerns because requiring Plaintiff to coach and mentor her peers would not violate any law. “[N]o public policy violation occurs where the employee’s belief that the employer’s directive would result in a violation of law is mistaken.” (Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 709.)

Further, Defendant argues that it fairly and appropriately investigated her complaint to Human Resources by following its internal policies and procedures. Courts are “unwilling to compel employers to undertake a precise type of investigation as long as the process is inherently fair.” (King v. United Parcel Services, Inc. (2007) 152 Cal.App.4th 426, 439.) Defendant’s evidence shows that it received Plaintiff’s complaint, assigned it to a neutral Employee Relations partner who met with Plaintiff. (UMF 110) Defendant interviewed almost a dozen employees over a six week period, documented the investigation and ultimately concluded that Plaintiff’s complaint was not about discrimination but about being coached and managed. (UMF 112, 114)

Defendant also argues that it had a legitimate non-retaliatory reason for terminating Plaintiff; specifically Plaintiff’s numerous violations of its Code of Conduct. To that end Defendant’s evidence shows that while Plaintiff was employed she created the Shinshuri Foundation and numerous subsidiaries which she failed to disclose to Defendant in violation of the Code of Conduct’s requirement that employees self-disclose outside business activities that could create a conflict of interest. (UMF 14, 24 -26, 86) Further, the evidence shows that Plaintiff obtained outside employment as a CEO and Director of the Shinshuri Foundation without approval in violation of the Code of Conduct. (UMF15-17, 27-34) The evidence also shows that Plaintiff attempted to divert Defendant’s resources toward the Shinshuri Foundation and that she devoted her time and resources to her outside business without disclosing the same to Defendant. (UMF 24-35, 86) All of the activities violate the Code of Conduct and each was independently sufficient to support termination. (UMF 13-20, 103, 115)

Here the Court addresses Defendant’s legitimate non-retaliatory business reasons for terminating Plaintiff because it is dispositive even if Plaintiff had set forth a prima facie claim. Defendant has met its burden to show that it had a legitimate reason, indeed legitimate reasons, for terminating Plaintiff. Plaintiff has failed to meet her burden. As stated above, Plaintiff was required to produce “substantial responsive evidence that the employer’s showing was untrue or pretextual” thereby raising at least an inference of discrimination.” (Hersant, supra, 57 Cal.App.4th at 1004-1005.) “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.” (Id. at 1002.) Plaintiff was required to “set forth specific facts demonstrating such weaknesses, implausibilities, incoherencies, or contradictions in the employer’s proffered legitimate reasons…that a reasonable fact-finder could rationally find them unworthy of credence.” (Cucuzza, supra, 104 Cal.App.4th at 1038.)

In opposition, Plaintiff argues that the stated reason for termination was pretextual because it was premised on the March 2016 Coaching Log which did not even mention conflict of interest and the claim that she did not self-disclose her business prior to her employment with Defendant. Plaintiff argues that she disclosed her relationship with Pedageo Media when she was hired. But as seen from Defendant’s evidence, the conflict of interest at issue was the Shinshuri Foundation which did not even exist until 2014. (UMF 23-24) Plaintiff was hired in 2010 and she could not have disclosed the conflict of interest implicated by the Shinshuri Foundation. Defendant’s evidence showed that Plaintiff’s outside business changed substantially since she was hired and included numerous subsidiaries, for-profit and non-profit components, a board of directors, etc., none of which was disclosed. (UMF 11, 23-25.) Plaintiff appears to argue that she had no continuing obligation under the Code of Conduct to update her conflicts. However, the Code of Conduct provides that conflicts must be promptly disclosed, and it does not limit reporting to the date of hire. (UMF 14) While Plaintiff also argues that she made annual conflict of attestations which stated that there were no conflicts, this does not show pretext. The employer is not required to rely on an employee’s statements regarding conflicts of interest and is permitted to determine whether the employee is acting in conflict with the employer’s interests. That Plaintiff ultimately filled out a Conflict of Interest form in November 2016 does not show pretext. Plaintiff also takes issue with the fact that Senior Director Lisa Nunes and Mr. Hopp contacted Human Resources before she was able to submit a complaint. Apparently she believes that this was a pretext to generate a conflict of interest because no conflict of interest had been raised before that time. Timing of an employment action is not sufficient to show pretext. (Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 357 [temporal proximity alone is not sufficient to raise a triable issue as to pretext once the employer has offered evidence of a legitimate, nondiscriminatory reason for the termination.]Id.at p. 353.) There is no evidence, much less “substantial responsive evidence that the [Defendant’s] showing was untrue or pretextual.” (Hersant, supra, 57 Cal.App.4th at 1004-1005.) Plaintiff also argues that there were “overlapping” HR and Compliance investigations. This argument is not supported by any evidence but even if there were overlapping investigations, this does not give rise to an inference of pretext. Plaintiff’s opposition is purely speculative.

As a result, the motion as to the third cause of action is granted on the basis that Defendant had a legitimate non-retaliatory reason for terminating Plaintiff and Plaintiff failed to demonstrate a triable issue of fact as to pretext.

Given the above, the Court need not address Defendant’s arguments regarding the prima facie case.

Fourth Cause of Action (Aiding and Abetting)

Defendant’s motion is granted. Plaintiff alleges that Defendant aided and abetted retaliation of Government Code § 12940(i). She alleges that Defendant aided and abetted her Senior Manager and Senior Director (Mr. Hopp and Ms. Nunes). Plaintiff is required to show that Mr. Hopp and Ms. Nunes retaliated against her; Defendant knew Mr. Hopp and Ms. Nunes retaliated against her; Defendant gave substantial assistance or encouragement to Mr. Hopp and Ms. Nunes; and Defendant’s conduct was a substantial factor in harming her. (Fiol v. Doellstedt (1996) 50 Cal.App.4th 1318, 1325.)

As set forth above, Defendant’s evidence shows that no one engaged in retaliatory conduct against Plaintiff. There was nothing improper regarding Mr. Hopp coaching Plaintiff on her job performance or Ms. Nunes in seeking guidance from HR. In any event, the evidence shows that Defendant had no knowledge that either one (Hopp or Nunes) was retaliating against Plaintiff much less that Defendant intended to assist them. (UMF 141-144) Further, the evidence shows that any harm suffered by Plaintiff was the result of her failure to comply with the Code of Conduct. (UMF 13-20, 24-35, 86, 98, 103-115) Defendant’s evidence is sufficient to shift the burden to Plaintiff to demonstrate a triable issue of material fact.

Plaintiff failed to meet her burden. Her opposition is essentially premised again on her contention that a conflict of interest issue was fabricated. She argues that Ms. Nunes contacted HR to raise a conflict of interest concern and that HR then asked her to fill out a conflict of interest questionnaire and then she was interviewed regarding the questionnaire. She appears to argue that this was some sort of ruse because she had already self-reported her conflicts. She argues that her HR interview should have focused on her discrimination complaints but instead focused on the conflicts she claims to have reported. She argues that she was never warned about the conflicts of interest before she was terminated. None of the “evidence” cited bears any of these arguments out which and in any event as already found above, there were legitimate non-retaliatory business reasons for Plaintiff’s termination.

The motion is granted.

Sixth Cause of Action (Failure to Prevent Discrimination and Retaliation)

Defendant’s motion is granted. The Court has granted Defendant’s motion as to Plaintiff’s discrimination and retaliation cause of actions. There is no basis for a failure to prevent cause of action where there is no underlying discrimination/retaliation. ( Trujillo v. North County Transit Dist. (1998) 63 Cal.App.280, 288-289.)

Continuance Request

The Court notes that Plaintiff filed a separate request for a continuance pursuant to CCP § 437c(h). A request for a continuance must be accompanied by affidavits showing that facts justifying an opposition may exist but cannot then be presented. (CCP § 437c(h).) That request is denied. Plaintiff’s declaration sets forth a significant amount of discovery that she indicates that she needs to complete including bringing potential motions to compel Defendant’s allegedly deficient discovery responses, in addition to deposing an unspecified number of individuals. This Court cannot help but note that this case was filed in April 2018, and trial was set for November 5, 2019 on January 7, 2019. Plaintiff’s declaration makes clear that she did not even serve her first set of discovery requests until July 2019. The Court must also note, as it did when it denied Plaintiff’s motion to compel on September 19, 2019, that Plaintiff has made no real effort to meet and confer with Defendant over any discovery requests. As seen in reply, Defendant has provided timely and verified discovery responses and offered to meet and confer regarding any perceived issues but Plaintiff has never met and conferred with Defendant to ask it to supplement any response nor even ask Defendant to provide any information that she claims she needs to oppose this motion. (Dwight Reply Decl. ¶¶ 3-8.)

Yet Plaintiff now seeks an unspecified continuance to complete amorphous discovery

and take depositions. This would require that the Court not only vacate the current trial date but also re-open discovery. The Court fails to see why Plaintiff could not have completed this discovery at an earlier time rather than waiting until the months before trial to begin discovery. Further, Plaintiff’s declaration does not sufficiently illustrate what facts might exist that cannot be presented which would have had any effect on the instant motion and/or why discovery was not sought earlier. For example she claims she needs to depose two of Defendant’s employees (Renee Gibson and Janet McKinney) but fails to indicate what information she believes she will elicit. To be entitled to a continuance, the party opposing the motion for summary judgment must show that its proposed discovery would have led to facts essential to justify the opposition.” (Scott v. CIBA Vision Corp. (1995) 38 Cal,App.4th 307, 326.) As a result, the Court exercises its discretion to deny the continuance. (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 257; FSR Brokerage, Inc. v. Superior Court (1995) 35 Cal. App. 4th 69, 72.)

In sum, having obtained summary adjudication on all remaining causes of action in the complaint, Defendant’s motion for summary judgment is granted.

Defendant’s evidentiary objections are ruled upon as follows: the objection to the “Expert Report of Kimberly A. Green, MA, CPLP” is sustained in its entirety.

As to Defendant’s evidentiary objections to Plaintiff’s exhibits, the Court must note that Plaintiff failed to authenticate any of the exhibits. Further, much of the cited deposition testimony involves speculation and hearsay. As a result Defendant’s objections 1-53 are sustained. In any event, even if the Court overruled all of the objections, it would not change the Court’s ruling in any manner. Defendant’s counsel shall provide an order on the evidentiary objections as required by CRC Rule 3.1354(c).

Defendant’s counsel shall submit an order pursuant to CRC 3.1312 and CCP § 437c (g).