KRIEGLER, J.
Plaintiff and appellant Ruth Kennedy appeals from the judgment entered after summary judgment was granted in favor of defendants and respondents Daniel Calkins, Nutro Products, Inc., Mars Petcare US, and Mars, Incorporated on Kennedy's second amended complaint alleging: (1) discrimination based on age; (2) retaliation; (3) wrongful termination in violation of public policy; (4) defamation; (5) waiting time penalty; and (6) unfair competition. Kennedy challenges the trial court's ruling as to each cause of action and the award of costs in favor of defendants. Other than a minor modification of the cost award, we affirm.
Kennedy had been employed by Nutro in the City of Industry since 2000. Beginning in 2008, the Nutro operations were consolidated into the Mars' facilities in Tennessee. Eighty-four of Nutro's 118 associates, including Kennedy, were separated from employment in the transition. Kennedy's theory of the case was that she was the victim of age discrimination, and when she complained, defendants retaliated against her by degrading her responsibilities, denying her a position in Tennessee, and defaming her with a false accusation of misappropriation of company property to effectuate her early termination.
This cause of action was brought against the corporate defendants pursuant to the California Fair Employment and Housing Act (Gov. Codes, § 12920 et seq. (FEHA)) and its supporting regulations. Kennedy began her employment with Nutro as manager of strategic planning and analysis on May 1, 2000. Her responsibilities included strategic and promotional planning, sales and competitive analysis, database management of the marketing shipment and competitive sales databases, management of shopper/consumer research, syndicated reports and data, and marketing budget management.
Kennedy began to report to Calkins in March 2006 and did so for the balance of her employment at Nutro. Calkins was actively involved in managing Nutro's marketing promotions and programs as vice-president of marketing. Kennedy was 61 years old at the time of discharge from employment. Kennedy received good performance appraisals, was given merit raises at each review period and bonuses at the end of each fiscal year, and was praised for her contributions at work. Kennedy had no absenteeism or tardiness problems, worked overtime and on weekends to complete projects without additional remuneration, and did not use all of her earned vacation time. Kennedy obeyed all rules and regulations of her employer and was not warned about breaching any of them.
Kennedy applied for four openings in product management in 2008,
Kennedy's budget management responsibilities entailed more clerical work after November 2006. She requested an additional person to perform the increased work load involved in managing the budget. From November 2007 through April 15, 2008, Calkins hired personnel for three new positions, but did not authorize an accounting clerk position in Kennedy's area.
On April 23, Mars announced in a memo to employees that it was closing the Nutro facility in City of Industry. Dave Horton, general manager of Nutro, announced at an employee meeting that some employees would be offered continued employment with Mars and the rest would be offered a "retention" payment in return for staying until Mars concluded the employees' areas of business at Nutro.
On or about May 20, Horton handed Kennedy a letter stating she would be terminated no earlier than October 31. Horton said that the offer was contingent upon Kennedy continuing to do a good job. She said she could not do a good job of budget management because the accounting system could not provide the reports she needed and Calkins was withholding information needed to do her job.
After 2006, Nutro had a company-wide practice of discrimination against older workers, particularly older female workers. Nutro degraded older workers' job responsibilities, failed to promote or favorably transfer older workers (particularly older female workers), hired younger workers at higher levels, and after the announcement that Nutro's headquarters was relocating to Tennessee, denied continued employment to older workers, particularly older female workers, at a higher rate than younger workers.
Kennedy's job responsibilities were degraded, she was not transferred into product management or given a ladder promotion, and was not offered continued employment in Tennessee as either a product manager or a manager or a senior manager of consumer insights, because of her age and gender. Kennedy sent an e-mail to Horton and vice-president of personnel and organization Patti Pagonis on June 16, in which she accused Nutro of a discriminatory pattern and practice of continued employment offers made to younger women as opposed to older women in marketing.
Near the end of May, Calkins told Kennedy that accounting wanted her to stay on through January, but he did not offer her an extension of employment later than October 31. Instead, Calkins gave Kennedy a standard or average rating in her performance review and implied it would have been worse except that he was allowing Kennedy to "move on." When Kennedy protested vigorously and said she intended to write a rebuttal, Calkins rewrote the review and admitted that he had undervalued her contributions.
Calkins had in March forced another female marketing manager over 40, Tamara Cerven, to resign by progressively degrading her responsibilities.
At the end of July, Calkins told Kennedy she could not attend a 2009 planning meeting organized by the Greenies advertising agency, because she was being terminated from Nutro on October 31. On July 30, after Kennedy discovered that another person also leaving in October was attending the meeting, Kennedy protested her exclusion from Greenies planning and asked what her role was if it did not include planning. Calkins told Kennedy that her role was budget management. Kennedy then asked Calkins what her responsibilities were with regard to budget management. Calkins responded that her role was data input.
Kennedy complained of the age and sex discrimination targeted at her in an e-mail to Horton, vice-president of marketing Carolyn Hanigan, and Pagonis, on July 30. She asked for an investigation and suggested the discrimination might lead to a lawsuit. The next day, Calkins agreed to allow Kennedy to participate in planning and finally gave her permission to hire an accounting assistant.
During the second week in August, Michael Goodall, Kennedy's subordinate, negotiated with AppDev to take VBA and SOL training courses on CD-ROMs/DVDs. Kennedy authorized the purchase. The classes were in support of the corporate objective of professional development and projects in Kennedy's area of responsibility which were anticipated to be due by the end of October.
On the morning of August 20, Calkins offered Kennedy a two- or three-month extension of employment through December or January 2009, explaining that accounting wanted her to stay longer. On the same day as the extension offer, Kennedy was excluded from a Nutro planning meeting in spite of Calkins' agreement to involve her in planning. Kennedy rejected the extension offer the next day, agreeing to remain only through her original termination date of October 31.
Calkins also offered Goodall an extension of employment through the end of December, but Goodall did not immediately answer. On August 21, Kennedy applied by e-mail to Hanigan for her transferred position at Mars Petcare, which was newly entitled manager of consumer insights. She was qualified for her position. Hanigan notified Calkins about Kennedy's application on August 24. Kennedy was not interviewed for the position. The person hired for the position, Ruth Moecks Devey, was significantly younger than Kennedy. A new senior manager of consumer insights position for which Kennedy was also qualified was filled with a significantly younger person.
On or about August 25, Calkins said he had been contacted by "IT" about the AppDev materials Goodall ordered and asked Kennedy if the materials had any value to Nutro. Kennedy said the materials were for training Goodall, which was consistent with corporate policy. Calkins called the classes "Virtual Reality'' and walked away as Kennedy began to explain the specifics of the classes and the projects to which the training applied. Kennedy was not asked again about the classes before being fired. Calkins put in place his malicious retaliatory scheme less than one month after Kennedy complained about his discriminatory behavior toward her.
On August 27, Goodall gave notice he was leaving Nutro. On September 9, two people from "IT" inspected Goodall's computer and the class materials in his office. On September 16, defendants maliciously and falsely claimed Kennedy had committed the crime of "`misappropriation of company funds'" by authorizing the purchase of software for Goodall. Calkins knew the accusation was false, and although Horton and Pagonis knew Kennedy had twice complained of discrimination by Calkins against her, they did not prevent his retaliation.
When terminated on September 16, Kennedy protested that the action was in retaliation for her discrimination complaints against Calkins. The human resources persons who spoke to Kennedy, Carla Lang and William Porter, both denied knowledge of the complaints. The termination breached Kennedy's express contract by not offering her full payment through the end of October. The false accusation was placed in Kennedy's personnel file and is publishable to any Mars manager who would consider hiring her.
Another employee who was using her computer to take a profession development course paid for by Nutro was not terminated or accused of a software violation.
Kennedy applied in December for a position with Mars as a marketing research director, for which she was qualified. She was screened in a telephone interview but not otherwise interviewed. Kennedy applied for unemployment insurance benefits on September 21, stating she had been terminated after a false accusation of misappropriation of company funds. Kennedy will have to self-publish the misappropriation accusation in applying for employment in the future.
The corporate defendants retaliated against Kennedy in response to her complaints of discrimination, in violation of the FEHA and its supporting regulations. Kennedy had voiced her opposition to defendants' discriminatory acts on June 16, when she protested the subjective decisions of Calkins, Ladd Hardy, and Horton in dispensing offers of continued employment which discriminated against older women employed in marketing. She also sent an e-mail protest on July 30 of Calkins' discriminatory reduction of her responsibilities to a data input, as well as Calkins's and Hardy's previous discriminatory acts.
Defendants accused Kennedy of the crime of "misappropriation of company funds" and terminated her employment in retaliation for her opposition to defendants' discriminatory acts. Defendants hated Kennedy and bore her such ill will that they were unwilling to let her serve the final 45 days of her express employment contract, but instead fabricated a false criminal charge to control her access to, and ability to, obtain alternate employment.
The deceitful and dishonest investigation into Kennedy's authorization of the purchase of software classes was led by Calkins, the person about whom Kennedy had complained of discrimination. The investigation began less than a month after Calkins was forced to agree to changes in his conduct towards Kennedy. Horton and Pagonis actively supported the retaliation.
No policy prohibited the purchase of the software. No employee other than Kennedy has been terminated for purchasing software or for purchasing classes or for taking classes paid for by the company. Defendants failed to take immediate and appropriate corrective action to stop the retaliation. Furthermore, before the retaliation occurred, defendants failed to take all reasonable steps to prevent such retaliation from occurring.
The above-described conduct of defendants constitutes discrimination on the basis of sex and age, retaliation, and wrongful termination of Kennedy in violation of public policy embodied in the FEHA.
Relying on Civil Code sections 45 and 46, Kennedy alleged on information and belief that Calkins enlisted the aid of Kai Kuwata, Keith Sweet, Christine Carrion, Lang, Jeremiah Cooper, Horton, the vendor of the software, the EDD investigator, and others in furthering his malicious, oppressive, and fraudulent scheme of falsely accusing Kennedy of a financial misappropriation crime. Except for Horton and the EDD investigator, these other parties were unaware of Calkins's retaliatory motive. Calkins maliciously published the false accusation to these third parties and to Hanigan and Sandip Grewal. Calkins caused Lang, as a managing agent of Mars Petcare and the representative of all corporate defendants, to publish the false accusation to Porter and to anyone with access to Kennedy's personnel file. The false criminal accusation against Kennedy was libelous on its face and was ratified by all other defendants.
Defendants' defamation caused Kennedy irreparable damage to her good name, dignity, and reputation, and further made it almost impossible for her to find employment in her chosen occupation. The accusation was not privileged because Calkins published it with personal animosity, hatred, and ill will toward Kennedy and with the knowledge that it was false. In order to defend herself, Kennedy will be forced to self-publish the false accusation in employment applications and other applications.
Kennedy demanded her wages on September 16, her last day of employment. She performed no work and was not asked to perform work after that date. Her vacation wages were not paid until October 1, and her reimbursable employee expenses were not paid until October 7. Kennedy requested a waiting time penalty of 21 days at her daily wage rate in the amount of $8,568 and prejudgment interest in the amount of $428.40.
Pursuant to Business and Professions Code section 17200 and Code of Civil Procedure section 1021.5, Kennedy alleged corporate defendants engaged in age and sex discrimination and retaliation in violation of the FEHA, and defamation in violation of Civil Code sections 45 and 46. As a consequence, defendants may have an unfair competitive advantage over competitors who do not discriminate, retaliate, or defame. Kennedy sought equitable relief from this unfair competition, in particular, an injunction ordering defendants to affirmatively and publicly proclaim that Kennedy did not misappropriate company funds and they had no basis to believe she did.
Defendants moved for summary judgment or summary adjudication of Kennedy's second amended complaint. Defendants argued Kennedy was one of 84 employees not continued with employment, she cannot prove discriminatory treatment or impact, and the claim that her duties were degraded is baseless. Kennedy's separation from employment was not retaliatory, and she was properly denied positions for which she applied. Her claim for wrongful termination is not supported by the evidence. There was no evidence of defamation or violation of the waiting time rules. The unfair business practice claim fails as it is based on the other causes of action.
Kennedy opposed summary judgment, arguing there were triable issues of material fact as to whether employee retention decisions were impermissibly based on age and gender. She also argued she was subject to disparate treatment by Calkins beginning in 2006. There were contested factual issues regarding retaliation after she complained of discrimination, including the decision to terminate her employment. There is conflicting evidence whether software authorized by Kennedy was misappropriation or misjudgment. She was fired on September 16 and not paid on her contract which extended to October 31.
The trial court granted the motion for summary judgment as set forth in a detailed minute order. The court ruled Kennedy's statistical sample of employees was inadequate to demonstrate an inference of discrimination. Kennedy also failed to establish causation, because the decision to terminate her had been made prior to her complaints and the actions she claimed to have been the product of discrimination. Kennedy's assertion that her conduct in ordering software was appropriate does not demonstrate discrimination by defendants. Kennedy failed to establish that discriminatory animus was the basis for the decision to terminate her employment. Kennedy's subjective belief that her employment ended on September 16 does not raise a triable issue of material fact as to her wage claim, as the undisputed evidence established she was employed through September 30. The defamation claim fails because, in context, the statement that Kennedy misappropriated company funds by authorizing the purchase of software for Goodall's personal use was not defamatory but merely reflected that Kennedy had used poor business judgment. The unfair business practices cause of action fails, as it was premised on the other causes of action, which the court found insufficient as a matter of law.
"On appeal after a motion for summary judgment has been granted, we review the record de novo, considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained. [Citation.] Under California's traditional rules, we determine with respect to each cause of action whether the defendant seeking summary judgment has conclusively negated a necessary element of the plaintiff's case, or has demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial, such that the defendant is entitled to judgment as a matter of law. [Citations.]" (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 (Guz).)
California employs "the three-stage burden-shifting test established by the United States Supreme Court for trying claims of discrimination, including age discrimination, based on a theory of disparate treatment. [Citations.]" (Guz, supra, 24 Cal.4th at p. 354.) The first step "places on the plaintiff the initial burden to establish a prima facie case of discrimination." (Ibid.) A plaintiff must show that it can be inferred, from the employer's actions, that it is more likely than not that the actions were the result of a prohibited form of discrimination. (Id. at p. 355.) "Generally, the plaintiff must provide evidence that (1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive. [Citations.]" (Ibid., fn. omitted.)
A presumption of discrimination arises if the plaintiff establishes a prima facie case. (Guz, supra, 24 Cal.4th at p. 355.) The burden then 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. [Citations.]" (Id. at pp. 355-356.)
"If the employer sustains this burden, the presumption of discrimination disappears. [Citations.] 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. [Citations.] In an appropriate case, evidence of dishonest reasons, considered together with the elements of the prima facie case, may permit a finding of prohibited bias. [Citations.] The ultimate burden of persuasion on the issue of actual discrimination remains with the plaintiff. [Citations.]" (Guz, supra, 24 Cal.4th at p. 356.)
While an employer is entitled to downsize and eliminate positions, "downsizing alone is not necessarily a sufficient explanation, under the FEHA, for the consequent dismissal of an age-protected worker. An employer's freedom to consolidate or reduce its work force, and to eliminate positions in the process, does not mean it may `use the occasion as a convenient opportunity to get rid of its [older] workers.' [Citations.] Invocation of a right to downsize does not resolve whether the employer had a discriminatory motive for cutting back its work force, or engaged in intentional discrimination when deciding which individual workers to retain and release. Where these are issues, the employer's explanation must address them. [Citation.] (Guz, supra, 24 Cal.4th at p. 358.)
The employer's true, nondiscriminatory reasons "need not necessarily have been wise or correct. [Citations.]" (Guz, supra, 24 Cal.4th at p. 358.) "[T]he ultimate issue is simply whether the employer acted with a motive to discriminate illegally. Thus, `legitimate' reasons [citation] in this context are reasons that are facially unrelated to prohibited bias, and which, if true, would thus preclude a finding of discrimination. [Citations.] (Ibid.)
Kennedy first argues she pled disparate treatment in relocation offers, but defendants did not clearly present, nor did the trial court clearly analyze, that cause of action. Citing Gutierrez v. Girardi (2011) 194 Cal.App.4th 925, she contends the disparate treatment allegations of the first amended complaint must be deemed true, as she had no burden to produce evidence, and summary judgment was therefore improperly granted.
Kennedy's forfeiture argument is devoid of merit. Defendants' points and authorities in support of summary judgment did argue there was no evidence of discrimination in the process of closure of Nutro's California offices. Defendants' reply to Kennedy's opposition to summary judgment argued Kennedy failed "to adduce statistical proof of disparity," challenged Kennedy's assertion of proof of discrimination, maintained she had presented no "evidence of disparate treatment," and argued that Kennedy "`admitted she was not a product manager.'" The trial court did expressly address the issue of disparate treatment, finding no evidence of discrimination. There was no forfeiture.
Kennedy argues summary judgment was improperly granted on her claim of suffering disparate treatment on the basis of her age. Kennedy must establish intentional discrimination on prohibited grounds in order to survive summary judgment on a disparate treatment cause of action. (Guz, supra, 24 Cal.4th at p. 354, fn. 20; Carter v. CB Richard Ellis, Inc. (2004) 122 Cal.App.4th 1313, 1321.) Cases recognize it is difficult to prove intentional discrimination, so a plaintiff is permitted to rely on circumstantial evidence of discrimination. (Frank v. County of Los Angeles (2007) 149 Cal.App.4th 805, 822 (Frank).) "While the burden of production shifts to the defendant . . . once a prima facie case is made, `the ultimate burden of persuading the trier of fact that the defendant engaged in intentional discrimination remains at all times with the plaintiff.'" (Id. at p. 823.) "`It is insufficient for a plaintiff alleging discrimination under the disparate treatment theory to show the employer was merely aware of the adverse consequences the policy would have on a protected group.' [Citation.] The plaintiff must show the challenged policy was chosen `because of its effect on members of a protected class.' [Citations.]" (Id. at p. 824.)
We examine defendants' showing in their separate statement of undisputed material facts that intentional discrimination did not play a role in the decision not to offer Kennedy an interview or a position in Tennessee. (Guz, supra, 24 Cal.4th at p. 357 [defendant proceeded to second step of analysis by presenting admissible evidence of its decision making process, unrelated to age of the plaintiff].)
Defendants submitted facts that Kennedy was hired in 2000 at the age of 54
The functions performed in marketing services, where Kennedy worked, were already performed by others in Tennessee. The duties of Kennedy's position were spread out among brand managers and finance staff. Her job does not exist in the current Nutro organization.
Of the 118 associates working for Nutro, 28 were offered positions and two were offered interviews for positions. Out of the 28 associates who were offered positions, 15 were over 40 and 13 were under 40; 14 were female and 14 were male. Of the eight marketing associates offered jobs in Tennessee, four were female under 40, one was a female over 40, one was a male under 40, and two were males over 40. Age was not considered in making reorganization decisions.
Defendants' showing constituted admissible evidence of the reasons for the decision not to offer Kennedy a position in Tennessee, which shifted the burden to Kennedy to demonstrate that the decision was made for purposes of discrimination. Kennedy failed to sustain her burden. While questioning the details of some of the facts asserted by defendants in support of summary judgment (such as her actual age, the number of employees from the City of Industry, her precise job title), Kennedy did not present any admissible evidence of discriminatory intent.
Kennedy argues she had experience sufficient to warrant being offered a position in Tennessee, but this establishes only her subjective belief that she was qualified and defendants made a bad business decision by failing to offer her a position. Unwise business decisions do not prove intentional age discrimination. (Guz, supra, 24 Cal.4th at p. 358.)
Kennedy argues that the reason tendered by defendants to support a nondiscriminatory rationale for the retention decisions—that the retained associates were product managers—was a mere pretext to justify her discriminatory treatment by Calkins. She argues those promoted did not, in fact, have a deep understanding of Nutro's sales practices, as asserted by defendants. Pretext is also shown, according to Kennedy, by Calkins streamlining the path to retention of those employees he wanted to keep. She claims her responsibilities and experience were similar to the product managers who were retained. Admitting she had no proof of who made ultimate hiring decisions, Kennedy concludes the process must have been tainted by Calkins' discriminatory choices, citing the "cat's paw" line of authority. (See Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 113-116 [decision maker acting without wrongful intent but operating as a conduit for one with discriminatory animus is not entitled to judgment as a matter of law].)
Assuming the "cat's paw" theory was sufficiently asserted in the trial court and is not forfeited as argued by defendants, the contention fails because, as set forth above, Kennedy has presented no evidence that Calkins acted with the intent to discriminate against her on the basis of age. It is undisputed that Kennedy's job was eliminated in the transition of Nutro operations to Tennessee. Product manager positions were transferred to Tennessee, but Kennedy admitted in her deposition that she was not a product manager. Kennedy may not avoid summary judgment by contradicting her deposition testimony by now arguing she was as qualified as the product managers who were retained. (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21-22; Jogani v. Jogani (2006) 141 Cal.App.4th 158, 177.) Whatever discord existed between Kennedy and Calkins, there is no evidence that age played any role in Calkin's attitude toward her. The record contains no evidence of ageist comments by Calkins or any other defendant. The decision to offer jobs to those who already held the position of project manager constitutes a legitimate, nondiscriminatory business decision that negates liability for the claimed age discrimination.
Kennedy argues that in response to her complaints of age discrimination, her duties were degraded, which constituted an adverse employment action.
Mars announced in April it was closing the Nutro facility in City of Industry. Some employees would be offered continued employment with Mars, and the rest would be offered a "retention" payment in return for staying until Mars took over the employees' areas of business at Nutro. On or about May 20, Kennedy received a letter from Horton stating she would be terminated no earlier than October 31—the equivalent of 16 weeks of salary and 6 months of pre-tax COBRA payments. Kennedy was told the offer was contingent upon her continuing to do a good job.
Kennedy argues that by the time she e-mailed her second protest of discrimination on July 30, she had been told she would be terminated, was excluded as a participant in a research study on packaging, had been given a mediocre review which was rescinded after her protest, was assigned a second full-time job coordinating the Greenies marketing promotions, was not allowed to hire a budget assistant, had been excluded from a Greenies planning meeting, was bypassed on some marketing purchases and information about changes in marketing promotion, and had been told by Calkins her job was data input. These actions, according to Kennedy, together constitute an adverse employment action by degrading her responsibilities. Kennedy further argues that she is similarly situated to Margaret Goodall, who was "substantially younger but treated better," because even though Goodall also was not retained, she was allowed to continue to contribute at a high level.
Kennedy's argument does not withstand scrutiny, as its premise is faulty. Kennedy was advised of the decision to terminate her employment with Nutro in May. Kennedy testified in her deposition that she had not complained of discrimination prior to May. Her e-mails complaining of discrimination were sent in June and July, after she had received the termination notice. Kennedy's disagreements with Calkins over her duties do not rise to the level of actionable degradation of duties, as Kennedy was to have no job at all in just a few months.
Kennedy's claim of pretext also fails. Kennedy's subjective dissatisfaction with her duties after notice of termination cannot be the basis of a claim of discriminatory degradation of duties.
Kennedy argues she applied for and was rejected for two jobs with Mars in Tennessee—one in August for consumer insights manager and another in December for director of market research. She contends the decisions were influenced by Calkins, and there is a disputed fact whether she was qualified for the positions. Defendants' position that she was less qualified than the others is pretextual.
Defendants set forth the following facts supporting the position that Kennedy was not hired for either position based upon legitimate, nondiscriminatory reasons. Kennedy applied for the consumer insights position in Tennessee at about the same time she turned down the offer to extend her employment with Nutro for several months. Her resumé was sent to hiring manager Hanigan without knowing what the job entailed. The job involved advanced market research and new product development. Kennedy testified in deposition that she was not a product manager or a research and development person, and she had not developed any marketing campaigns. Hanigan chose 38-year-old Ruth Moecks Devey, who was already located in Tennessee. Devey had six years of skillfully handling the position. She had two additional years of marketing research experience in Germany and had a degree in marketing management. Hanigan declared that Kennedy had little experience in consumer insights or research, and her experience was almost exclusively in marketing budget planning and analysis, which was not part of the consumer insights position. A male employee in Nutro's marketing department also expressed an interest in the position, but he was not hired. Kennedy was treated no differently than this other marketing employee in the process. Kennedy testified Hanigan treated her fairly and did nothing improper.
Kennedy applied for the marketing research director position in December. She was screened by telephone by Christy Diggs, who had no knowledge of Kennedy's discrimination complaints. Debra Crew was the hiring manager, and she too had no knowledge of Kennedy's discrimination complaints. The person hired, Maria Sison, was a 52-year-old female with a Ph.D. Sison had extensive marketing experience and had previously been vice-president of research at General Motors. Kennedy was not qualified for the position, as her resume and interview with Diggs reflected little or no experience in advanced consumer research. Kennedy's duties had been almost exclusively in marketing budget planning and tracking. She was not interviewed further based on her lack of qualifications. Kennedy had not sought product manager jobs in the past, although she had requested some assignments that would assist in her development in that area. Kennedy admitted in her deposition that she was inexperienced in performing the duties of product manager, such as product development, promotions, and customer presentations.
Defendants' evidentiary showing as to both positions was sufficient to shift the burden to Kennedy, because the employment decisions were unrelated to age. (Guz, supra, 24 Cal.4th at p. 360.) Kennedy presented no evidence that these decisions were based upon considerations of age. Based on the compelling showing of valid reasons for the decisions made, and no evidence that age played any role in the decision making process, defendants were entitled to summary judgment. (Id. at pp. 360-361.) Even had Kennedy presented evidence of age discrimination, defendants were still entitled to judgment, as the record conclusively establishes that the persons hired for the two positions were more qualified than Kennedy. (Id. at pp. 361-362.) Kennedy's related claim of pretext fails for all the above-stated reasons.
Kennedy argues that Calkins began to retaliate against her within one month of her July 30 e-mail protest of Calkins's discriminatory action, when Calkins asked her whether her authorization of classes for Michael Goodall had any value to Nutro. Calkins then engaged Kuwata, Lang, and Horton in his plot to retaliate against Kennedy and cause her discharge from employment. Calkins, Lang, and Horton all knew of Kennedy's July 30 e-mail. Her firing on September 16 for misappropriation of company funds in purchasing the software and training was a pretext. Kennedy disputes that an offer to extend her employment by three months, made before the issue of the software was discussed, disproves a retaliatory discharge. The placement of the accusation of a dishonest purchase in Kennedy's personnel file is in itself an adverse employment act.
Defendants' separate statement of undisputed material facts included evidence that Kennedy authorized the purchase of SQL software and training materials in August at a cost of $1,833 for use by Michael Goodall. Kennedy knew Goodall was leaving Nutro in October. Goodall admitted in writing that the software was for his personal training and he did not need it for any project at Nutro. An accounts payable manager questioned the purchase, as Nutro already possessed SQL licenses. He spoke to Kuwata, who discussed it with Calkins. Kennedy told Calkins the software was for Goodall's personal use. Calkins was aware of Kennedy's discrimination complaint at that time. Previously, on August 21, Calkins had offered an extension of her termination date to December 2008 or January 2009, which she refused with a one word answer ("No"). Lang determined that Kennedy should be discharged one month before her scheduled termination date. Kennedy was told on September 16 that her departure date was advanced to September 30.
The undisputed facts establish a basis for Nutro's belief that the purchase of software served no corporate purpose and was only for Michael Goodall's benefit. (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433 (King) [decision makers belief in employee misconduct establishes a legitimate reason for discharge and shifts the burden to plaintiff].) "For purposes of establishing the moving employer's initial burden of proof, it does not matter whether plaintiff actually did commit" a violation of company policy, "as long as [the employer] honestly believed he did." (Ibid., citing Villiarimo v. Aloha Island Air, Inc. (9th Cir. 2002) 281 F.3d 1054, 1063 (Villiarimo).)
"Once an employer satisfies its initial burden of proving the legitimacy of its reason for termination, the discharged employee seeking to avert summary judgment must present specific and substantial responsive evidence that the employer's evidence was in fact insufficient or that there is a triable issue of fact material to the employer's motive. (Hanson [v. Lucky Stores, Inc. (1999)] 74 Cal.App.4th [215,] 225; Villiarimo, supra, 281 F.3d at p. 1062.)" (King, supra, 152 Cal.App.4th at p. 433.) Kennedy was required to produce substantial responsive evidence to show that Nutro's ostensible motive was pretextual, meaning that a discriminatory reason more likely motivated Nutro or its explanation is not credible. (Ibid., citing Chiaramonte v. Fashion Bed Group, Inc. (7th Cir.1997) 129 F.3d 391, 398.) "Moreover, plaintiff's subjective beliefs in an employment discrimination case do not create a genuine issue of fact; nor do uncorroborated and self-serving declarations. (Chiaramonte, supra, 129 F.3d at p. 401; Villiarimo, supra, 281 F.3d at p. 1061.) And finally, plaintiff's evidence must relate to the motivation of the decision makers to prove, by nonspeculative evidence, an actual causal link between prohibited motivation and termination. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 774.)" (King, supra, at p. 433-434.)
Although Kennedy opposed summary judgment by relying on a declaration from Michael Goodall in which he disavowed his written statement that the software was purchased for his personal use, this does not require reversal, as Kennedy presented no evidence that her early termination was motivated by retaliation for her complaint. Defendants' expectation that corporate assets would not be spent on software which it already possessed and which served no corporate purpose, was a valid basis for Kennedy's discharge. Kennedy's personal belief that defendants acted in retaliation does not constitute substantial evidence of discrimination based on age. In addition, her claim is inconsistent with the offer to extend her employment, which was made shortly before the software purchase was discovered. There is no substantial evidence the early termination was a pretext for conduct motivated by retaliation for her assertion of age discrimination.
For all of these reasons, Kennedy's argument that she was discharged in violation of public policy also fails.
Kennedy argues the accusation that she misappropriated corporate property by ordering the SQL software for use by Michael Goodall constitutes defamation per se under Civil Code section 46, subdivision 1.
Defendants' separate statement of undisputed material facts set forth that Michael Goodall admitted in writing that the software and training materials purchased were for his personal use. The memorandum terminating Kennedy's employment on September 16 stated that after completion of the investigation of the purchase of software and training, "the Company concluded that you engaged in misappropriation of company funds by authorizing a company expense of $1,833 for another associate's personal use." Calkins understood Kennedy to have told him the software was for Goodall's personal use. The statement regarding misappropriation was true and privileged as a matter of law. Defendants maintained the confidentiality of the reasons for Kennedy's departure and did not republish the information to third parties. Discussion of the reasons for Kennedy leaving was limited to those involved in the decision. Kennedy self-published the accusation of misappropriation in her application for unemployment insurance benefits but did not disclose it to any potential employer or others at Nutro.
In Maranatha, supra, 158 Cal.App.4th at page 1079, "the director of the Department of Corrections published a letter terminating the state's contract with a private prison contractor on the ground, inter alia, that the contractor had `misappropriated' public funds." The plaintiffs alleged the publication was libelous per se "in that they charge plaintiffs with `hav[ing] committed crimes of misappropriation and conspiracy.'" (Id. at p. 1082.)
The court in Maranatha persuasively rejected the contention that use of the word "misappropriation" was libelous per se. (Maranatha, supra, 158 Cal.App.4th at pp. 1090-1091.) "The argument does not impress us for two reasons: First, it strips out the word `misappropriation' from the context in which it appears. According to Merriam-Webster's Dictionary of Law, to `misappropriate' means `to appropriate wrongfully or unlawfully (as by theft or embezzlement).' (Merriam-Webster's Dict. of Law (1996) [as of Jan. 11, 2008], italics added.) [¶] The Woodford letter is written in the context of a contract dispute. A fair reading makes clear that in terminating the contract on grounds of `misappropriation,' Woodford was using the word in the first sense of the word, i.e., that Maranatha wrongfully appropriated funds that belonged to the CDCR, thereby breaching the Victor Valley MCCF agreement. We therefore disagree with plaintiffs that, by using the word `misappropriation,' Woodford was necessarily accusing Maranatha of committing a crime." (Maranatha, supra, at pp. 1090-1091.)
We agree with the reasoning of Maranatha and find it applicable in this case. Defendants did not accuse Kennedy of criminal conduct in the nature of theft or embezzlement. In context, "misappropriation" referred to Kennedy's lack of good judgment in expending corporate assets to order software and training that was of no value to Nutro and which was for Goodall's personal use. Because defendants did not accuse Kennedy of a crime, and the "misappropriation" statement was not defamatory per se, we need not address defendants' claims of truth as a defense or the common interest privilege.
Kennedy argues she pled the existence of an express contract expiring October 31, but defendants did not seek summary judgment on that theory of liability. Kennedy reasons that summary judgment was improperly granted, as defendants failed to negate the breach of contract theory of liability.
We agree there was a forfeiture of this issue, but it is Kennedy, not defendants, who failed to preserve the issue for appeal. The first page of Kennedy's second amended complaint lists six causes of action—none of which are breach of contract. None of her earlier complaints listed breach of contract as a cause of action. While there are references to a contract of employment in the second amended complaint, Kennedy never demonstrated an intent to plead a breach of that contract as a cause of action, nor did she attach the contract to her pleading. (See Vitug v. Alameda Point Storage, Inc. (2010) 187 Cal.App.4th 407, 411-412 [where complaint did not allege violation of lease agreement, lease was not attached to complaint, and breach of lease was not argued in opposition to summary judgment, issue was not preserved for appellate review].)
Kennedy did not oppose summary judgment on the ground that defendants had failed to negate a cause of action for breach of an express contract. This issue was raised for the first time in her motion for reconsideration and for new trial. A defendant moving for summary judgment need only negate those theories of liability alleged in the complaint. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 332-333, quoting Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342.) Kennedy does not argue the trial court abused its discretion in denying her motions for reconsideration and new trial. The court properly denied summary judgment without consideration of an issue of a breach of contract theory that was neither pled in the complaint nor argued in the opposition to summary judgment.
Kennedy claims she was fired on September 16 but not paid immediately, thus entitling her to waiting time penalties under Labor Code section 203. Kennedy argues that, at a minimum, she was entitled to be paid immediately upon termination for her vacation time wages until the end of the month. "At issue here is the first sentence of [Labor Code] section 201, subdivision (a): `If an employer discharges an employee, the wages earned and unpaid at the time of discharge are due and payable immediately.'" (Smith v. Superior Court (2006) 39 Cal.4th 77, 83, fn. omitted.)
Defendants' separate statement of undisputed material facts set forth that Kennedy was placed on paid administrative leave from September 16 through September 30. She was paid for this additional time in case there were questions about her job. Kennedy received and accepted payment for the pay periods ending on September 30, as well as for unused vacation time. Kennedy does not dispute on appeal that she was paid in full, including her vacation time wages, but maintains she was not paid immediately as required by statute.
We disagree with Kennedy's interpretation of her date of termination. Kennedy was given notice of discharge on September 16, but her termination was not effective until September 30. Because Kennedy remained employed through September 30, albeit on administrative leave after September 16, we conclude as a matter of law she was not entitled to immediate payment on September 16, as there were no wages earned and unpaid on that date. Those wages were due on September 30, and not on September 16.
We have determined the trial court properly found no disputed issues of material fact on Kennedy's complaint on the substantive causes of action. The cause of action for unfair business practices under Business and Professions Code section 17200, which depends on the substantive causes of action, necessarily fails.
According to Kennedy, the trial court sustained 16 of defendants' 25 evidentiary objections, which she requests this court to review. The standard of review of evidentiary rulings on appeal remains unresolved. (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 535 ["we need not decide generally whether a trial court's rulings on evidentiary objections based on papers alone in summary judgment proceedings are reviewed for abuse of discretion or reviewed de novo"].) Our review of the record reveals no error, or prejudice, under either standard of review.
A party challenging evidentiary rulings made in the course of a summary judgment motion has two burdens on appeal: the party must affirmatively to show error in the rulings and the party must establish prejudice. (Truong v. Glasser (2009) 181 Cal.App.4th 102, 119.) "A ruling that resulted in no discernible prejudice cannot, of course, be characterized as a miscarriage of justice." (Cristler v. Express Messenger Systems, Inc. (2009) 171 Cal.App.4th 72, 81.)
Kennedy first argues the trial court erroneously sustained objections to declarations by Tamara Cerven, Michael Goodall, and Kennedy on the ground the declarants did not aver they were based on personal knowledge. To the extent the court excluded evidence on this ground, it erred. "[W]e can locate no authority to support the evidentiary objection that declarations lacking an averment that they were made on the basis of personal knowledge must be stricken. Under Evidence Code section 702, subdivision (a), `the testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter.' Personal knowledge, however, may be demonstrated by `any otherwise admissible evidence, including [the witness's] own testimony.' (Evid. Code, § 702, subd. (b).) Moreover, Evidence Code section 702 does not prescribe any particular method to satisfy its personal knowledge requirement." (Tutti Mangia Italian Grill, Inc. v. American Textile Maintenance Co. (2011) 197 Cal.App.4th 733, 742.)
However, the trial court also sustained other objections to the declarations. For example, defendants objected to Cerven's declaration as irrelevant. Cerven's declaration discusses her experiences working under Calkins at Nutro, but it is completely silent as to Kennedy and it contains no hint of discrimination based on age or gender. Although Kennedy states that Cerven's "comments" are relevant to pretext and retaliation, she fails to explain why that is so. The court correctly sustained the relevancy objection to Cerven's declaration.
The trial court also sustained an objection to a portion of Michael Goodall's declaration on the ground of speculation. This was clearly correct to the extent Goodall purported to declare what one employee "would have been aware [of]," that information was "probably documented" by two others, and he "believed" that an outside consultant "would have documented" an interview with Goodall and Kennedy. There is nothing in the balance of Goodall's declaration, in which he contradicts his written statement to Nutro admitting the software and training was for his personal benefit, that establishes a triable issue of material fact. Kennedy has failed to sustain her burden of demonstrating the evidentiary ruling excluding Goodall's declaration was prejudicial error. (Cal. Const., art. VI, § 13.)
Kennedy's entire declaration, which consisted of 153 paragraphs, was not stricken by the trial court for lack of an averment, as the court overruled that objection. Instead, the court sustained objections to 12 of the paragraphs, while admitting the balance of the declaration.
The only substantive argument Kennedy makes regarding her declaration is that the trial court erred in sustaining defendants' objections on grounds of hearsay, lack of personal knowledge, lack of foundation, and relevance to Kennedy's revision of a "People Tracker" document prepared by defendants. The document, in its original form, traced the treatment of Nutro's 118 employees in the transition process with Mars. Kennedy modified the document by adding a column labeled "Hire Date" for each employee. Kennedy argues on appeal that the additional column was a party admission by defendants (Evid. Code, § 1220) because she created it with information received from defendants in discovery. Because Kennedy does not identify what specific evidence she relied upon in creating the "Hire Date" column, her party admission contention fails to overcome the hearsay and lack of foundation objections. Moreover, Kennedy makes no argument as to the relevancy of the entire document or prejudice from its exclusion. Kennedy therefore has not established error or prejudice.
Kennedy moved on March 18, 2010, for an order requiring defendants to lodge the AppDev materials with the trial court, arguing the examination by the court would determine whether there is a triable material dispute about their nature. She had filed her opposition to defendants' motion for summary judgment on that same date, including her separate statement of undisputed and disputed material facts, which relied on the AppDev materials but did not include then as an exhibit. Defendants objected to the lodging request on the ground there was no dispute the materials consisted of training discs, licensing, and programs, and the materials are voluminous and burdensome to transport. Kennedy filed a reply in which she several times accused defendants and others of "stupidity" in failing to understand the nature of the AppDev materials and misrepresenting the materials to the court. In the minute order granting summary judgment, the court ruled Kennedy had failed to include the AppDev materials with her opposition to summary judgment, as required, and in any event, had the court considered the materials it would have reached the same result.
Kennedy now argues the trial court could have easily ordered the materials produced in a timely fashion, as the hearing on the motion for summary judgment was continued. She contends the ruling that lodging of the materials could not have affected the result can only be upheld if this court concludes the "misappropriation" allegation was not defamatory and there was no impermissible retaliation. Having rejected Kennedy's argument of defamation and retaliation, we have no reason to disagree with the ruling of the trial court. Kennedy has failed to show error and prejudice.
Defendants filed a cost memorandum seeking $36,352.20. Kennedy argues she was served two days late with defendants' exhibits in support of their memorandum of costs. The trial court continued the case to allow Kennedy to consider the documents, and she relied on the late-served documents to argue some costs were unreasonable. The court ruled her arguments were speculation and the memo of costs was prima facie evidence of their validity. In the hearing, the court stated it relied on everything that had been filed.
Kennedy contends that the notebook of receipts was not filed so she did not include it in her appendix (although defendants have included the exhibits in their amended appendix). She reasons that because there is no file stamped copy of the exhibits, the court must not have considered them. Citing In re Marriage of Carlsson (2008) 163 Cal.App.4th 281, 292-293 (Carlsson), Kennedy argues the failure to consider the documents that she relied upon resulted in the denial of a fair hearing. She asks that all costs be stricken because defendants acted in bad faith. In the alternative, Kennedy requests that we correct a conceded error in which the court awarded $350 in costs for a charge that should have been $50.
We review an order awarding costs under the deferential abuse of discretion standard. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 855, citing Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131.) The burden is on the party challenging costs to show they are improper. (Ibid.)
Defendants challenge the logic of Kennedy's argument and contend she has not shown the trial court abused its discretion in awarding costs. According to defendants, the trial court said it considered all the evidence, which refutes Kennedy's argument to the contrary. We agree that Kennedy has not shown an abuse of discretion in awarding costs as requested.
Kennedy's reliance on Carlsson, supra, 163 Cal.App.4th 281 is misplaced. In Carlsson, the court hearing a family law case put arbitrary time limits on the presentation of evidence and deemed the husband's case-in-chief concluded before the husband finished presentation of the evidence, resulting in a denial of due process of law. (Id. at pp. 290-292.) Nothing even remotely similar to Carlsson occurred in this case.
Kennedy argues there was a $300 error in connection with one item. Defendants conceded in their opposition to Kennedy's motion to tax costs that they had agreed to forego a $350 filing fee. The motion to tax costs indicates it is granted as to the $350 filing fee. The costs awarded were in the amount of $36,302.20, which is only $50 less than the amount requested. It therefore appears Kennedy is correct as to the $300 error, and the cost award must be amended after issuance of the remittitur.
The award of costs in favor of defendants is reduced by $300 to $36,052.20. As modified, the judgment is affirmed. Defendants are awarded costs on appeal.
TURNER, P. J. and ARMSTRONG, J., concurs.
