NOT TO BE PUBLISHED IN OFFICIAL REPORTS

OPINION

BEDSWORTH, ACTING P. J.

INTRODUCTION

Appellant Airlia Harris appeals from a judgment in favor of respondent CashCall, Inc. (CashCall), after a four-day bench trial, in which the trial court found that CashCall did not discriminate against Harris on account of her pregnancy or retaliate against her. The sole issue on appeal is whether a draft report critical of her absences from work, prepared by her supervisor and presented to his superior but never finalized, violated Harris' right to pregnancy disability leave under Government Code section 12945, the Pregnancy Disability Leave (PDL) Act.1 Although the code section refers only to "refusing" to allow an employee to take this leave, Harris argues on appeal that the statute encompasses hindering, interfering with, or placing obstacles in the way of an employee's taking the leave.

We do not decide whether section 12945's prohibition includes hindering or interfering with pregnancy leave. Even if Harris' interpretation of the statute is correct, substantial evidence supports the trial court's conclusion that Harris was not the subject of an adverse employment action and that she also failed to prove damages under the PDL Act, however interpreted. She also failed to present evidence the draft report and actions related to it interfered with her right to take pregnancy leave. We therefore affirm.

FACTS

CashCall provides unsecured loans to consumers. It hired Harris in December 2005 in its small claims group. Harris, a paralegal, appeared on CashCall's behalf in small claims court when it became necessary to sue to recover delinquent loans.2

Shortly after she was hired, Harris informed her supervisor she was pregnant. Her child was born in August 2006, and Harris had no complaints about the way she was treated during this pregnancy. Harris returned to work in September 2006; her position, benefits, and pay were unchanged. Shortly after her return, she was promoted to supervisor, with increased pay and bonuses. In May 2007, she informed her supervisor, Ismael Robles, that she was pregnant again.

In June and July 2007, Harris was absent from work on several occasions for reasons related to her pregnancy. Two such absences are relevant to this appeal:

June 4 and 5, 2007 — Harris missed 2 days of work after a mentally ill woman assaulted her and some other customers at Babies R Us. The assault aggravated or reactivated a prior back injury, for which Harris had had surgery. At this point, she was barely a month into her pregnancy, and she was treated by her primary care physician.

June 12 and 13, 2007 — Harris missed two days of work because of a threatened miscarriage.

Company policy required CashCall employees to alert their supervisors ahead of time and obtain approval for absences. Supervisors kept track of their subordinates' attendance and entered all absences on that person's attendance spreadsheet. Approved absences were recorded as "scheduled." An absence taken without prior approval was recorded as "unscheduled" and could lead to discipline. Absences originally recorded as unscheduled could, however, be reclassified as "excused" if the employee later provided proof he or she had an unexpected but valid reason for missing work — for example, an unexpected trip to a doctor. An excused absence would not be counted against the employee as unscheduled.3

Harris also testified about two other incidents giving rise to her pregnancy discrimination claim. Several days in advance, Harris e-mailed Robles informing him of a doctor's appointment on June 21 and asking whether she could come in early, leave in time for an 11:00 a.m. doctor's appointment, and be absent for the rest of the day. Robles e-mailed her back suggesting that she take a long lunch instead. Harris interpreted Robles's response as disapproval of her taking so much time off and re-scheduled her doctor's appointment for later in the day. As a result, she was not able to get some lab work completed on that day. Her doctor's appointment for June 21 was recorded as scheduled.

On July 2, Harris e-mailed Robles asking him to approve her leaving the office on the following day (the day before the July 4th holiday) at 1:00 p.m., without stating a reason. When Robles replied by asking her "What's going on?," she responded, "[P]ersonal." The human resources (HR) manager, to whom Harris complained, later informed Robles this request was for a medical appointment; Robles approved the absence. The HR manager asked Harris to identify any such requests for time off as "medical" so Robles could record her absence properly. Harris thought this was a reasonable request. The July 3 appointment was recorded as a scheduled absence.

Sometime in mid-July, Robles drafted a corrective action report (CAR) based on Harris' unscheduled absences. Drafting a corrective action report is one step in the CashCall disciplinary process. To be effective — to have some impact on an employee's personnel record — a corrective action report must be discussed with the employee and bear at least three signatures, those of the employee's immediate supervisor, of someone from HR, and of the department head. If these three people sign off, the employee is then presented with the CAR and asked to sign it, along with an action plan designed to remedy whatever caused the CAR to be issued.

Robles's draft CAR specified four occasions when Harris had unscheduled absences, despite being "coached" (that is, informally warned) about her lack of adherence to CashCall's attendance policy in May. The dates of these absences were June 5, June 12, June 13, and July16. Three of these dates, the June dates, were for pregnancy-related reasons, as explained above. The July absence resulted from Harris' going home after a court appearance to care for her sick son.

Robles, along with Shirley Davis of HR, presented the draft CAR to his supervisor, Louis Ochoa, on July 19. Ochoa reviewed both the draft CAR and Harris' attendance spreadsheet, showing her scheduled and unscheduled absences. Ochoa testified that he printed out Harris' attendance spreadsheet, and, after checking with Harris herself, he crossed out references to dates when Harris represented being absent from work because of medical appointments. He did not, however, alter the record in the computer system to reflect these deletions.

Ultimately Ochoa decided that no corrective action was warranted, and no one signed the draft CAR or presented it to Harris. What happened to it was never satisfactorily explained. Ochoa testified he shredded the paper copy received from Robles. Both Ochoa and Davis testified the draft CAR should not have been kept. Nevertheless, a copy found its way into the "side file" of Harris' personnel record.

At the July 19 meeting between Harris and Ochoa, at which Davis was present, Harris again complained that Robles was giving her trouble about taking time off to go to doctor's appointments. Ochoa told Harris that in the future she should make all her requests for medical time off directly to Davis in HR. Harris found this to be a satisfactory solution.

In the meantime, CashCall was experiencing significant financial problems. In early 2007, CashCall laid off employees in the production group, the group responsible for initiating loans. At the same time, the delinquency levels were rising, putting CashCall's line of credit in jeopardy. In May, June, and July 2007, CashCall's executives decided to cope with the situation in part by reducing expenses. Ochoa, in charge of debt servicing, sought to reduce his department's expenses by phasing out the recovery group, the group including small claims appearance clerks, beginning in August. With the clerks laid off, their supervisors were no longer needed, so all but one of those positions would also be eliminated. Ochoa made these decisions for the recovery department, in which Harris worked. Ochoa alone decided to terminate Harris and two other supervisors. He chose to keep the remaining supervisor because of the length and breadth of her experience.

Like the other laid-off CashCall employees, Harris was invited to interview for available positions. She interviewed twice; in both cases, the interviewers decided that she lacked the experience they were looking for. It was at the second of these interviews, with Dion Kyles on August 8, that Harris saw the draft CAR in her side file. She asked Kyles for a copy. He testified he had not considered the draft CAR when he was interviewing Harris, did not know she was pregnant until she told him at the interview, and did not hire her because she appeared to him not to want the job.

Harris' last day at CashCall was August 8, 2007. The next day, she filed for total disability, asserting under penalty of perjury that she was unable to work at all. She also asserted that her disability was not caused by her job. For over a year afterward, Harris and her health care providers repeatedly certified to the State and to various private companies that she was totally disabled and incapable of performing her regular work. The asserted cause of the disability was the June 2007 assault at Babies R Us. Postpartum depression was also given as a reason for her disability after her baby was born in January 2008.

Harris sued CashCall for pregnancy and sex discrimination, for failure to accommodate, and for retaliation in January 2008 under sections 12940, 12945, and 12945.2. After a four-day bench trial in May 2010, the trial court issued a statement of decision. It found CashCall did not lay Harris off for discriminatory reasons, either because of her pregnancy or to retaliate for her complaints about the way Robles had handled her requests for time off. Instead, a restructuring of CashCall's business in the face of changing economic circumstances was responsible for the layoffs. The court also found CashCall was not required to demote Harris in order to keep her employed and was not required to fire someone to make a place for her simply because she was pregnant. After the restructuring and the layoffs, there were no available positions for which Harris applied and for which she was qualified. Harris is not appealing from this ruling or, in fact, from any ruling relating to her termination.

The trial court also found CashCall was not liable for "hindering" Harris' pregnancy leave under the PDL Act. First, the court noted the statute prohibits "refusing" leave and makes no mention of "hindering" it. The court found CashCall had never refused Harris any requested leave. But even if an employer could be liable for "hindering" pregnancy leave under section 12945, Harris had not made a case against CashCall based on the draft CAR. She had identified no damages caused by the draft CAR and had offered no evidence to substantiate any such damages. Moreover, Harris did not establish any adverse employment action with respect to the draft CAR. It was never given to her. Ochoa refused to issue it after determining most of the absences it referred to were pregnancy-related. It played no part in Ochoa's decision to lay her off, and it played no part in the subsequent decisions not to hire her for other positions.

Judgment in CashCall's favor was entered on July 7, 2009. Harris timely appealed.

DISCUSSION

At the outset, it is important to reemphasize what Harris is not appealing. She is not appealing the trial court's determination CashCall did not discriminate or retaliate against her in the way it handled the layoffs. She is not claiming that she was terminated for unlawful reasons or that CashCall should have kept her on in some capacity. She also does not dispute the finding CashCall granted her all the leave she requested during her second pregnancy.

The sole issue underlying this appeal concerns the draft CAR. Harris argues the creation, discussion, and maintenance of the draft CAR "hindered" or "interfered with" her ability to take the leave to which she was entitled and therefore violated the PDL Act, section 12945.4

Section 12945, subdivision (a) provides in pertinent part that it is an unlawful employment practice "[f]or an employer to refuse to allow a female employee disabled by pregnancy,5 childbirth, or related medical conditions to take a leave for a reasonable period of time, not to exceed four months and thereafter return to work, as set forth in the commission's regulations. . . . Reasonable period of time means that period during which the female employee is disabled on account of pregnancy, childbirth, or related medical conditions."

CashCall maintains, and the trial court agreed, that the statute prohibits only outright refusal or denial of a request for leave. Harris, on the other hand, argues that "hindering" or "interfering" with pregnancy leave, short of outright denial, also subjects the employer to liability. She points to the federal Family Medical Leave Act (29 U.S.C. § 2615(a)), which does explicitly refer to interfering with and restraining pregnancy leave, and argues California law should provide the same protections.

To resolve this appeal, we need not set sail on the troubled waters of statutory interpretation and federal preemption. The trial court found that even if "hindering" Harris' attendance at medical appointments was grounds for liability under section 12945, CashCall was not liable to Harris.

We review the trial court's factual findings for substantial evidence. "It is not our task to weigh conflicts and disputes in the evidence; that is the province of the trier of fact. Our authority begins and ends with a determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, in support of the judgment. . . . We must accept as true all the evidence and all reasonable inferences from the evidence tending to establish the correctness of the trial court's findings and decision, resolving every conflict in favor of the judgment. . . . [¶] We emphasize that this test is not the presence or absence of a substantial conflict in the evidence. Rather, it is simply whether there is substantial evidence in favor of the respondent. . . . As a general rule, therefore, we will look only at the evidence and reasonable inference supporting the successful party, and disregard the contrary showing." (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630-631.)

Although gender and pregnancy discrimination are torts created by statute, they are still torts. A plaintiff seeking to impose liability for a statutory tort must, at a minimum, establish the classic tort elements: duty, breach of duty, causation, and damages. (Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 286-287.)

The trial court found Harris presented no evidence of any damages suffered because of the draft CRA. We review a trier of fact's finding of failure to prove damages for substantial evidence. (Goehring v. Chapman University (2004) 121 Cal.App.4th 353, 366.) Harris' representations about her total disability after her layoff, because of her back injury, eliminated any claim she could make for post-layoff damages. The trial court found it impossible to determine on the evidence before it what emotional distress or economic damage could be attributed to the draft CFA, as opposed to the distress occasioned by the layoff itself and by other stressful factors operating in Harris' life after she lost her job, such as the birth of her child in January 2008 and being a stay-at-home mother to a newborn and an 18-month-old toddler.

Harris focused at trial on damages caused by losing her job. As a result she made no showing of any damages — economic or emotional — linked specifically to the draft CAR or to her discussion of it with Ochoa and Davis on July 19.

Moreover, to establish liability for employment discrimination and retaliation, the plaintiff must show that he or she suffered an adverse employment action. (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 373 [discrimination]; Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1055 [retaliation].) This action must materially affect the terms, conditions, or privileges of employment. (McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 386; Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1455.) "A change that is merely contrary to the employee's interest or not to the employee's liking is insufficient." (Akers v. County of San Diego, supra, 95 Cal.App.4th at p. 1455.) The mere inclusion in a personnel file of a document critical of an employee, one having no effect on future employment, does not rise to the level of an adverse employment action. (See McRae v. Department of Corrections & Rehabilitation, supra, 142 Cal.App.4th at p. 392.) By contrast, a negative memorandum virtually guaranteeing that an employee would not be promoted to the next level or get choice assignments she otherwise could have expected might qualify as an adverse employment action, even though the employee was not actually demoted or fired. (See Akers v. County of San Diego, supra, 95 Cal.App.4th at p. 1456.)

In this case, the trial court also found that the draft CAR did not amount to an adverse employment action. We review this finding for substantial evidence. (Steele v. Youthful Offenders Parole Board (2008) 162 Cal.App.4th 1241, 1251, 1253.) The trial court credited the testimony of Ochoa, Cesar Guzman, and Kyles that the draft CAR played no part whatsoever in their decisions to lay Harris off or pass on her for other positions. Neither preparing the draft CAR nor discussing it with her qualifies, because neither had any effect on the terms, conditions, or privileges of Harris' employment. (See McRae v. Department of Corrections & Rehabilitation, supra, 142 Cal.App.4th at p. 392.)

Harris' argument fails for still another reason. She identifies only four actions that she construed as interfering with her right take to pregnancy leave: (1) Robles' preparation of the draft CAR; (2) the discussion of the dates listed on the draft CAR on July 19 among Harris, Ochoa, and Davis; (3) Robles' "redraft" of the draft CAR;6 and (4) placing the draft CAR in Harris' side file.

None of these four actions hindered Harris from taking pregnancy leave. She first found out about the draft CAR on July 19, when she met with Ochoa and Davis about it. The existence of the draft CAR could not have affected her pregnancy leave before then. After she complained about Robles to Ochoa and Davis on July 19, Ochoa came up with a sensible solution: skip Robles and submit doctor's appointment requests directly to Davis in HR. Harris testified she thought this took care of the problem, and, in fact, it did. She made at least two subsequent requests for time off to go to the doctor (for appointments on July 26 and August 3), both of which were approved without incident.

Harris presented no evidence of appointments or other pregnancy-related absences she wanted but felt she could not take after learning about the draft CAR and discussing it on July 19. The "redraft" of the CAR and its placement in her side file could not possibly have affected her pregnancy-related leave, because Harris did not know about either one until August 8 at the very earliest, when she saw the "redraft" CAR in her side file during her interview with Kyles. August 8 was Harris' last day at CashCall.

Thus, even if Harris' interpretation of section 12945 is correct, substantial evidence supports the trial court's conclusion she failed to prove damages and failed to present evidence of an adverse employment action. Either deficiency is fatal. In addition, Harris presented no evidence the draft CAR and events she associated with it affected in any way her ability to take time off.

DISPOSITION

The judgment is affirmed. CashCall is to recover its costs on appeal.

WE CONCUR:

O'LEARY, J.

IKOLA, J.