Filed 1/22/20 Bitonti v. Kaiser Foundation Hospitals CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

JOHN BITONTI,

Plaintiff and Appellant,

v.

KAISER FOUNDATION HOSPITALS,

Defendant and Respondent.

B282877

(Los Angeles County
Super. Ct. No. BC604000)

APPEAL from a judgment of the Superior Court of Los Angeles County, Elizabeth R. Feffer, Judge. Affirmed.

JML Law and Jennifer A. Lipski for Plaintiff and Appellant.

Cole Pedroza, Kenneth R. Pedroza and Dana L. Stenvick for Defendant and Respondent.

INTRODUCTION

Appellant John Bitonti appeals from a summary judgment entered in favor of his former employer, respondent Kaiser Foundation Hospitals (Kaiser), on his claim of disability discrimination in violation of the Fair Employment and Housing Act (FEHA), Government Code section 12900 et seq., and related claims. Bitonti, who has diabetes, took five disability-related leaves of absence in the nearly four-year period from January 2011 to November 2014. Kaiser granted each of Bitonti’s requests for disability-related leave in full and without exception. More than a month after Bitonti’s return from his final leave of absence, Kaiser was put on notice of multiple employees’ allegations that Bitonti had engaged in misconduct. Kaiser placed Bitonti on administrative leave and interviewed 13 witnesses about the allegations, in addition to additional allegations of misconduct that surfaced during its investigation. Kaiser found that Bitonti had committed five types of misconduct and terminated him.

Bitonti sued Kaiser, alleging that his termination was discriminatory or retaliatory because it was motivated by his past or anticipated future disability-related leaves of absence. Kaiser moved for summary judgment, relying principally on evidence that Bitonti’s termination was motivated by its misconduct findings. In opposition to the motion, Bitonti failed to dispute many facts underlying the misconduct findings. He nevertheless argued a jury reasonably could find his termination was substantially motivated by disability, relying principally on the timing of the termination decision relative to his return from his final leave of absence, and on his testimony that his direct supervisor had complained about two earlier leaves of absence and required him to complete extra work upon his return from one. That supervisor’s own employment with Kaiser ended as a result of Kaiser’s investigation into Bitonti’s alleged misconduct. The trial court granted Kaiser summary judgment, finding, inter alia, that Bitonti had failed to produce sufficient evidence, in the face of Kaiser’s showing of nondiscriminatory reasons for Bitonti’s termination, to allow a reasonable jury to infer that his termination was discriminatory.

On appeal, Bitonti contends the trial court erred with respect to all his causes of action except his cause of action for retaliation. Finding no error, we affirm.

FACTUAL BACKGROUND

A. Bitonti’s Leaves of Absence
B.
Bitonti has diabetes. Beginning in 2002, Bitonti worked for Kaiser as the Assistant Director of Food and Beverage Retail at Kaiser’s Harbor City Medical Center. His duties included oversight of the center’s cafeteria, kitchen, and catering. As a supervisor, he was required by Kaiser policy to review the amount of sick time used by his subordinates. Bitonti has identified no evidence concerning Kaiser’s application of this policy.

Bitonti took a disability-related leave of absence from January 11 to April 10, 2011. At the time, Joseph Libertucci was his direct supervisor. Lucila Santos, who also reported to Libertucci, was senior to Bitonti but did not directly supervise him. Bitonti testified at his deposition that “there were real problems” in his relationship with Santos, which he attributed to Santos’s wanting to do things her own way. He claimed that before he took his leave of absence, Santos commented on it and complained about there being “so much work” to be done. He further claimed that Libertucci, by “innuendo,” complained about Bitonti’s leave of absence. Upon further questioning, Bitonti acknowledged he could not remember what Libertucci said and confirmed that he “really didn’t say much.”

Bitonti took another disability-related leave of absence from January 4 to January 22, 2012. Shortly after his return, he received a performance evaluation indicating his performance needed to improve, and he was placed on a performance improvement plan. He was placed on performance improvement plans again in May 2012 and in July 2012.

In late 2012 or early 2013, Santos replaced Libertucci as Bitonti’s direct supervisor. In April 2013, Bitonti told Santos he had suffered a workplace injury when a can dropped on his toe. Santos asked who saw the accident and, after Bitonti told her that he was the only witness, told him she did not believe him.

Bitonti took another disability-related leave of absence from May 1 to June 18, 2013. On the day of his return from leave (June 19), Bitonti emailed a human resources consultant, requesting a meeting to follow up on a timekeeping audit the consultant and Santos had discussed with him before his leave. The consultant responded that Santos would meet with him. Several days later, Bitonti emailed the consultant again, stating that Santos had interpreted the opinions he expressed during the meeting “as an assault on her leadership,” and that he expected the consultant to hear from Santos because she could be a “very vindictive and spiteful person.”

At his deposition, Bitonti testified that upon his return from leave in June 2013, Santos commented to the effect of, “I hope this is it about you going out because we have a lot of work to get done.” He told another human resources consultant, Tina Simmons-Parish, about Santos’s comment. Simmons-Parish responded that Santos’s comment was unacceptable.

Bitonti further testified that upon his return from leave in June 2013, Santos required him to do extra work that took two weeks to complete. Santos required him to do “the whole budget,” even though he had done only parts of it before. Santos also required him to process a backlog of paperwork that typically would have been processed by Bitonti himself during his leave of absence. Bitonti acknowledged, however, that Santos “tried to have some of the dietitians doing the work” during his leave. He further acknowledged that this was the first time Santos (who had recently replaced Libertucci as Bitonti’s supervisor) had been responsible for the budget.

Bitonti also testified that upon his return from leave in June 2013, he heard that Santos had conducted an unnecessary evaluation of an employee with a disability and forced the employee to come to work on his days off. Bitonti acknowledged, however, that he was on leave when Santos allegedly required the evaluation, and that he did not know whether the employee was compensated for his time.

In July 2013, Santos placed Bitonti on another performance improvement plan, scheduled to continue through December 2013.

Bitonti took another disability-related leave of absence from August 26 to August 28, 2013. He took a final disability-related leave of absence from September 30 to November 3, 2013. He did not allege that Santos or anyone else commented upon these leaves of absence or required him to complete extra work upon his return.

C. Misconduct Allegations and Findings
D.
More than a month after Bitonti returned from his final leave of absence (on December 8, 2013), Santos emailed Human Resources Director Doug Pruss, reporting recent allegations that Bitonti had mistreated staff. Santos wrote, “I could not help to speculate if [Bitonti] is doing these intentionally to prove for stress leave so he can go out again to avoid f/ups of his PIP or a tactic to wear me off with issues to solve so I cannot move forward.” As noted, Santos had placed Bitonti on a performance improvement plan scheduled to end that month. The next day (December 9), a union steward separately complained that Bitonti was harassing staff. Pruss asked human resources consultant Simmons-Parish to investigate all the allegations.

Four days after Santos conveyed the initial allegations to Pruss (on December 12), Simmons-Parish delivered a letter to Bitonti, placing him on paid administrative leave. The letter stated, “[W]e ask that you not contact other [Kaiser] employees during your period of leave. . . . Non-adherence to this may result in disciplinary action.” While Bitonti was on administrative leave, Kaiser made a severance offer that Bitonti rejected.

On February 20, 2014, Compliance and Privacy Officer Nancy Hays received an anonymous call alleging that employees in Bitonti’s department had engaged in compliance training fraud (specifically, certain employees had completed the required training for other employees). Hays, charged with investigating the alleged fraud, joined Simmons-Parish’s investigation.

Simmons-Parish and Hays interviewed 13 employees about Bitonti’s alleged misconduct. Santos was one of these 13 witnesses, but did not participate in any interviews of the other 12. Simmons-Parish and Hays then prepared an executive summary of their investigation, followed by a final report. They reported that many members of Bitonti’s staff “either admitted to taking training for others under John Bitonti’s direction or having the training taken for them.” They further reported that Bitonti had engaged in two other types of “fraud,” related to his company credit card and to employee time cards. Finally, they reported that the interviewed employees had consistently described a history of intimidation, harassment, retaliation, and favoritism on Bitonti’s part, including daily threats to fire employees, retaliatory assignments of work to employees who defied him or protested his behavior, and a pattern of unfairly placing blame on a single employee, who took a stress-induced leave of absence as a result.

Simmons-Parish and Hays also reported that Santos admitted she knew Bitonti’s staff had likely committed compliance training fraud, but had not reported it. Simmons-Parish declared that Santos was “asked to resign” after Bitonti was terminated. Santos testified that she resigned earlier (in February 2013) and voluntarily, but acknowledged that she resigned in response to her manager telling her she should have reported the fraud.

E. Bitonti’s Termination
F.
Simmons-Parish testified that she recommended Bitonti’s termination. Pruss (produced as Kaiser’s person most qualified regarding, inter alia, the reasons for Kaiser’s decision to terminate Bitonti) testified that he advised management to terminate Bitonti after reviewing the investigation findings with Simmons-Parish and then with in-house counsel. Management then made the termination decision.

On the day of Bitonti’s termination (April 2, 2014), Simmons-Parish and Hays jointly interviewed Bitonti about their misconduct findings. Hays declared that Bitonti failed to provide “adequate or acceptable” explanations for their findings. Simmons-Parish notified Bitonti of his termination at the end of the interview by handing him a termination memorandum.

The termination memorandum stated Bitonti was terminated for committing five types of misconduct: (1) “Falsification of Compliance Training,” referring to the alleged compliance training fraud; (2) “Timecard Fraud,” referring to allowing at least one employee to be paid for work when off the clock; (3) “Unauthorized Use of KP Credit Card and Negligent Purchases,” referring to Bitonti’s allowing another employee to use his company credit card, using unauthorized vendors, and shipping items purchased for Kaiser to his home; (4) “Inappropriate Behavior,” referring to Bitonti’s “abusive behaviors” and his allowing a group of employees to “engage[] in similar fear tactics”; and (5) “Insubordination,” referring to Bitonti’s having violated the no-contact directive while he was on administrative leave. The termination memorandum also mentioned “a pattern of substandard performance” reflected in Bitonti’s performance improvement plans. Pruss and Simmons-Parish testified that the five categories of misconduct identified in the termination memorandum were the sole reasons for Bitonti’s termination.

G. Proceedings Below
H.
Bitonti filed a complaint against Kaiser, raising five causes of action: (1) a FEHA cause of action for disability discrimination; (2) another FEHA cause of action, for failure to prevent disability discrimination; (3) a third FEHA cause of action, for retaliation for requesting reasonable accommodation of a disability; (4) a cause of action for “wrongful termination in violation of [FEHA]”; and (5) a cause of action for wrongful termination in violation of public policy, viz., the public policy embodied in FEHA. Kaiser moved for summary judgment, arguing, inter alia, that Bitonti’s termination was motivated by Kaiser’s misconduct findings, and that Bitonti lacked evidence from which a reasonable jury could find his termination was substantially motivated by disability.

Bitonti opposed the motion. In his separate statement, Bitonti did not dispute that Kaiser granted each of Bitonti’s requests for disability-related leave “in their entirety, without exception.” Bitonti did not dispute that “several women” (members of his staff) cried after he spoke to them. Bitonti did not dispute that employees reported they had taken stress leave related to Bitonti’s behavior. He did not dispute that he talked with “some employees” while he was on administrative leave (although he claimed they initiated contact with him). He did not dispute that on two or three occasions, he gave his company credit card to another employee to make purchases. And he did not dispute that Kaiser prohibited employees from using personal credit cards to make purchases on Kaiser’s behalf, that he did so, or that he shipped security cameras purchased on Kaiser’s behalf to his home.

At the hearing on the motion, the trial court found no evidence that Bitonti had “suffered any adverse employment action as a result of taking any leave . . . .” It noted Bitonti’s failure to dispute that several members of his staff cried after he spoke to them, that employees reported his behavior caused them to take stress leave, that he had contact with employees while on administrative leave, that he allowed another employee to use his company credit card on two or three occasions, or that he shipped security cameras purchased on Kaiser’s behalf to his home. It noted that Kaiser investigated the allegations of compliance training fraud. The court acknowledged that Bitonti had offered “excuses for the behavior he engaged in,” but found there was “really no factual dispute” regarding whether he had engaged in that behavior. It thus found that Kaiser had satisfied its burden to show nondiscriminatory reasons for the termination decision. It further found that Bitonti had failed to produce sufficient evidence, in the face of Kaiser’s showing, to allow a fact finder to infer that his termination was discriminatory. Accordingly, the court ruled that Kaiser was entitled to summary adjudication of Bitonti’s disability discrimination claim, as well as his derivative claims of failure to prevent discrimination and of wrongful termination. Finally, noting that Bitonti had failed to respond to Kaiser’s argument that his retaliation claim was premised on unprotected activity, the court ruled that Kaiser was entitled to summary adjudication of that claim as well. Having disposed of all of Bitonti’s causes of action, the court granted Kaiser summary judgment.

DISCUSSION

Bitonti contends the trial court should have denied Kaiser summary judgment and further denied summary adjudication of all of Bitonti’s causes of action except his cause of action for retaliation. The parties agree that Bitonti’s causes of action for failure to prevent discrimination and for wrongful termination are derivative of his disability discrimination cause of action. Thus, the dispositive issue is whether the trial court erred in granting Kaiser summary adjudication of the disability discrimination claim.

We review a grant of summary judgment de novo. (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003.) “A defendant’s motion for summary judgment should be granted if no triable issue exists as to any material fact and the defendant is entitled to a judgment as a matter of law.” (Id. at pp. 1002-1003, citing Code Civ. Proc., § 437c, subd. (c).) Where the plaintiff would have the burden of proof by a preponderance of the evidence at trial, the defendant may establish the absence of a triable issue by “present[ing] evidence that would preclude a reasonable trier of fact from finding that it was more likely than not that the material fact was true” or by “presenting evidence that the plaintiff ‘does not possess and cannot reasonably obtain, needed evidence.’ [Citation.]” (Kahn v. East Side Union High School Dist., supra, at p. 1003.)

A. Disability Discrimination Principles
B.
FEHA prohibits an employer from discharging any person from employment — or otherwise discriminating against the person in terms, conditions, or privileges of employment — because of the person’s disability (physical or mental). (Gov. Code, § 12940, subd. (a).) To establish an employer’s liability for disability discrimination, a plaintiff must show his disability was a substantial motivating factor in the challenged employment decision. (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 231-232; Cal. Code Regs., tit. 2, § 11009, subd. (c).) The plaintiff may meet this burden by showing the employment decision was substantially motivated by the employer’s desire to avoid incurring the cost or inconvenience of the employee’s future disability-related leave of absence. (See, e.g., Moore, supra, 248 Cal.App.4th at pp. 228, 237-241 [employer was not entitled to summary adjudication of disability discrimination claim, where employee’s boss referred to her as a “‘liability’” because of her heart condition and terminated her shortly after she requested leave to undergo surgery]; Rope v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635, 657-658 [employee adequately pleaded disability discrimination claim by alleging he requested leave to donate kidney to sister and employer terminated him “to avoid having to incur the expense of his leave”], superseded by statute on another ground as discussed in Moore, supra, at pp. 245-247; cf. Castro-Ramirez v. Dependable Highway Express, Inc. (2016) 2 Cal.App.5th 1028, 1042-1046 [employer was not entitled to summary adjudication of disability discrimination claim, where evidence supported reasonable inference that employee’s boss terminated him “to avoid the inconvenience and distraction” posed by the employee’s anticipated requests to work earlier shifts to provide disability-related care for his son].)

“In analyzing claims of discrimination under FEHA, California courts have long used the three-stage burden-shifting approach established by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 . . . .” (Husman v. Toyota Motor Credit Corp. (2017) 12 Cal.App.5th 1168, 1181.) The three stages of this burden-shifting approach are: (1) the plaintiff’s burden to establish a prima facie case by providing evidence that (a) he had a protected characteristic; (b) he was qualified for his position or performed competently in it; (c) he suffered an adverse employment action; and (d) his protected characteristic motivated the action; (2) the employer’s burden to proffer a nondiscriminatory reason for the action; and (3) the plaintiff’s burden to show that the employer’s proffered reasons are pretexts for discrimination or to produce other evidence of a discriminatory motive. (See id. at p. 1181.) A court reviewing an employer’s motion for summary judgment on discrimination claims must “‘base its summary judgment determination on the totality of evidence in the record, including any relevant discriminatory remarks.’ [Citation.]” (Id. at p. 1191.) “This ‘totality of circumstances analysis’ allows courts to ‘winnow[] out cases “too weak to raise a rational inference that discrimination occurred.”’ [Citation.]” (Ibid.)

C. Analysis
D.
The trial court properly granted Kaiser summary adjudication of Bitonti’s disability discrimination cause of action because Bitonti failed to produce evidence from which a reasonable jury could find that Bitonti’s termination was substantially motivated by disability. Bitonti bore the burden of producing such evidence (even assuming arguendo that a reasonable jury could find he established a prima facie case) because Kaiser produced evidence that its termination decision was motivated by nondiscriminatory considerations, viz., findings that Bitonti had committed several types of misconduct. As the trial court found, Bitonti did not materially dispute the accuracy of Kaiser’s misconduct findings; nor does he dispute their accuracy on appeal. Instead, he argues Kaiser decided to terminate him before its investigation substantiated the misconduct allegations, supporting a reasonable inference that Kaiser substantially relied on some consideration other than its misconduct findings. Bitonti further argues that the record supports a reasonable inference that Kaiser was substantially motivated by “animus toward Bitonti’s disability and need for medical leaves of absence.” We disagree.

Bitonti did not dispute that Kaiser granted each of Bitonti’s requests for disability-related leave — including five such requests in the nearly four-year period preceding the misconduct allegations — “in their entirety, without exception.” Bitonti requested his final leave of absence on or before September 30 (the day his leave began). Kaiser took no action against him between his request for leave and his leave’s commencement. Kaiser took no action against him while he was on leave throughout the month of October. Even after he returned to work on November 4, Kaiser took no action against him until it placed him on administrative leave — more than a month after he returned from leave, and only four days after the initial allegations of misconduct surfaced. The misconduct allegations were the new variable; Bitonti’s uneventful return from leave was the norm.

Much of the purported evidence of disability-related animus on which Bitonti relies is irrelevant or otherwise inadmissible. (See Evid. Code, § 350 [irrelevant evidence is inadmissible]; Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th 536, 543 [“A party may not raise a triable issue of fact at summary judgment by relying on evidence that will not be admissible at trial”].) First, Bitonti relies on his deposition testimony that Santos required an employee with a disability (apparently unrelated to diabetes, Bitonti’s own disability) to undergo an unnecessary evaluation over two of that employee’s days off. This testimony is inadmissible for lack of personal knowledge (see Evid. Code, §§ 403, subd. (a)(2), 702, subd. (a)); Bitonti testified that he was on a leave of absence when Santos allegedly required the evaluation, and that he did not know whether the employee was paid for those two days. Second, Bitonti relies on a Kaiser policy that required supervisors to monitor the amount of sick leave employees used, arguing the policy “tended to penalize or target disabled employees . . . .” This policy is irrelevant, as Bitonti identified no evidence concerning its application, let alone any evidence that Kaiser applied the policy in a manner targeting employees with disabilities. Finally, Bitonti relies on his allegation that in early 2011, Libertucci (his direct supervisor at the time), by “innuendo,” complained about Bitonti taking a leave of absence. But at his deposition, Bitonti admitted he could not remember what Libertucci said, and that Libertucci “really didn’t say much.” Moreover, Libertucci’s alleged conduct occurred years before Kaiser made its termination decision, in which Libertucci did not participate. Libertucci’s alleged remarks are too vague and too remote from the termination decision to be relevant.

Santos’s alleged remarks, although less vague and less remote than Libertucci’s, did not raise a reasonable inference that Santos acted on disability-related animus in a manner that substantially influenced Kaiser’s decision to terminate Bitonti. Bitonti testified that Santos complained about his taking leaves of absence before his leave of absence in January 2011 (when she was not his supervisor) and upon his return from leave in June 2013 (when she was), noting that there was a lot of work to be done. FEHA, however, is not a “civility code.” (Holmes v. Petrovich Development Co., LLC (2011) 191 Cal.App.4th 1047, 1061, citing Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 295.) It shields an employee from discrimination based on the employee’s need for disability-related leave, but does not shield the employee from the grumbling of inconvenienced coworkers. (Cf. Holmes v. Petrovich Development Co., LLC, supra, at pp. 1052-1055, 1060-1061 [plaintiff who resigned in response to alleged pregnancy-related harassment failed to raise triable issues on harassment claim, despite proof that her boss complained the length and timing of her maternity leave imposed “extreme hardship” on him and his business and “‘greatly upset [him],’” where her boss promised to “‘“get over it”’”].) Despite relying on Santos’s alleged grumbling in 2013 about the work to be done if Bitonti took leave again, Bitonti identified no evidence that she complained when he took two more disability-related leaves of absence later that year. Nor did Bitonti identify any evidence that Santos ever commented on Bitonti’s disability. Indeed, although Santos mentioned the possibility that Bitonti would take leave again when relaying the initial misconduct allegations to Pruss, she made no reference to Bitonti’s diabetes or any other disability. Instead, as Bitonti acknowledges on appeal, she speculated that Bitonti was “faking” stress. Santos’s alleged remarks do not support a reasonable inference that she acted on disability-related animus to the extent, if any, she attempted to influence Kaiser to terminate Bitonti.

Nor is such an inference supported by Bitonti’s allegation that Santos allegedly required him to complete extra work over the two weeks following his return from leave in June 2013. Bitonti testified that Santos required him to process paperwork that typically would have been processed (by Bitonti himself) during his leave of absence, but he acknowledged that Santos “tried to have some of the dietitians doing the work . . . .” He identified no evidence that this attempt to “cover” Bitonti’s work failed as a result of disability-related animus. Bitonti further testified that Santos required him to do the “whole” budget for the first time, but he acknowledged that this was the first time Santos was responsible for the budget (she had recently replaced Libertucci as Bitonti’s supervisor). There was therefore no evidence that Santos changed her approach to the budget to punish Bitonti for his leave of absence or dissuade him from taking another. Indeed, Bitonti took two more leaves of absence (one exceeding a month in length) later that year, and did not allege that Santos required him to complete any extra work upon his return. The initial misconduct allegations surfaced over a month after his return. Although Santos participated in the misconduct investigation by relaying these initial allegations and serving as a witness, no reasonable jury could find that animus toward Bitonti’s disability motivated her participation.

Even had we found a triable issue regarding whether Santos’s minor participation in the investigation was motivated by disability-related animus, we would find no triable issue regarding whether her animus influenced Kaiser’s termination decision. According to Pruss’s and Simmons-Parish’s testimony, the decision makers were Simmons-Parish, Pruss, and Pruss’s “management” superiors. Bitonti identified no evidence that Santos participated in the termination decision, or that she discussed Bitonti’s disability-related leave with the decision makers in a manner that might have influenced their decision. Moreover, there is evidence that the decision makers would have been unwilling to act as conduits for any animus Santos expressed. Bitonti testified that Simmons-Parish, when informed that Santos had complained in June 2013 about his leave of absence and expressed hope he would not take leave again, had responded that Santos’s comment was unacceptable. Further, Simmons-Parish’s finding that Santos knew of but failed to report the compliance training fraud directly led to the end of Santos’s own employment with Kaiser (either Kaiser asked her to resign, as it claims, or she resigned in response to Kaiser’s faulting her for failing to report the fraud, as she testified).

The totality of the circumstances demonstrates that Kaiser had multiple non-disability-related reasons for terminating Bitonti’s employment, ranging from his unacceptable behavior toward numerous employees to his violation of company policies involving timekeeping and the unauthorized use of credit cards. As the trial court noted, there was “really no factual dispute” regarding much of his conduct. Faced with this evidence, Bitonti offered no admissible evidence raising a reasonable inference that his termination was substantially motivated by disability discrimination. (See Serri, supra, 226 Cal.App.4th at p. 868 [evidence that raised “only a weak suspicion” of discriminatory basis for termination was insufficient to defeat summary judgment]; Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 369-370 [same].) We therefore affirm the trial court’s summary adjudication of Bitonti’s disability discrimination cause of action. Because Bitonti’s arguments concerning his other causes of action are derivative of his rejected arguments on the disability discrimination cause of action, we affirm the trial court’s entry of summary judgment in Kaiser’s favor.

DISPOSITION

The judgment is affirmed. Kaiser is awarded its costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

MANELLA, P. J.

We concur:

WILLHITE, J.

CURREY, J.