NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

GRIMES, J.

John W. Rabun (plaintiff) sued the Compton Community College District (district or defendant) for retaliation and failure to investigate his claim of harassment and retaliation, alleging he was terminated after he filed a charge of discrimination based on gender, race, and age with the Equal Employment Opportunity Commission (EEOC). The trial court disposed of his claims by summary judgment, concluding that although there was evidence that plaintiff engaged in protected activity and there was a causal nexus between his protected activity and termination, there was sufficient evidence of a nonretaliatory reason for the termination — severe budget cutbacks at the district — and plaintiff failed to demonstrate there was a triable issue whether the district's justification for the termination was pretextual. The trial court also concluded that because plaintiff had failed to create a triable issue of fact as to his retaliation claim, the derivative claim for "failure to investigate" similarly failed. Plaintiff timely appealed, and we affirm.

BACKGROUND

The following facts are undisputed: Plaintiff began working for the district in July 2001, as the supervisor for the district's CalWORKs program, which helps low income students receiving welfare gain vocational skills. Plaintiff managed job placement and development for CalWORKs students. During his employment with the district, plaintiff was also twice appointed to serve as the interim director of the CalWORKs program, from October 2003 to February 2004, and from February 2005 to April 2006.

In September 2006, the district hired Patricia Bonacic to act as the interim director of the CalWORKs program, and she was eventually promoted to the position of director. Bonacic supervised plaintiff's work and was responsible for completing his performance evaluations. On June 13, 2007, after receiving an unfavorable evaluation of his performance, plaintiff filed a charge of discrimination with the EEOC, claiming that Bonacic harassed and discriminated against him based on his age, gender, and race.

Thirteen months later, at the district's July 15, 2008 Board of Trustees meeting, a resolution was adopted to eliminate the position of "CalWORKs supervisor" (plaintiff's position). The board's agenda for the meeting also included a "Closed Session" discussion topic captioned "Conference with Legal Counsel — Anticipated Litigation," which listed an "EEOC Charge of John Rabun" as a "significant exposure to litigation." The decision to terminate plaintiff was made by Peter Landsberger, the district's Special Trustee (a special trustee was required following the 2004 enactment of Assembly Bill No. 61 ((2003-2004 Reg. Sess.) § 2),1 because of severe fiscal mismanagement within the district). Plaintiff was notified of the termination on July 16, 2008, which became effective on September 1, 2008. On July 25, 2008, plaintiff filed another charge with the EEOC, claiming that he lost his job in retaliation for his previous EEOC charge.

In support of its summary judgment motion, defendant introduced evidence that budget constraints motivated the layoff instead of any retaliatory animus. CalWORKs funding was reduced by the state by five percent for the 2007-2008 fiscal year, and 10 percent for the 2008-2009 fiscal year. Keith Curry, the Dean of Student Services, was responsible for overseeing the district's CalWORKs program. After he was notified of the reduced budget allocations, he discussed with Bonacic the possibility of eliminating the "supervisor" position to save money for the program and ensure the continued delivery of essential services of the program. He then sent a letter to the district's CEO, Dr. Doris Givens, recommending the elimination of plaintiff's position because "CalWORKs supervisor" was not an authorized management position under the state's "CalWORKs State Program Handbook" (which authorized only a director-level manager for the program), rendering the supervisor position redundant. Elimination of plaintiff's position would ensure that essential student services could be maintained under the CalWORKs program.

Plaintiff disputed the authenticity of the district's budgetary justification, positing that Bonacic was paid more money than he was, and received a raise when she was promoted to director. (Plaintiff received a salary of approximately $74,000, whereas Bonacic's starting salary was in the $80,000 to $90,000 range, and was eventually increased to $103,000). Also, plaintiff pointed to evidence of other "adverse employment actions" to show pretext, such as poor performance reviews from Bonacic (the reviews were not included as exhibits to plaintiff's opposition), and that he was excluded from various meetings (he claimed Bonacic kept him out of the management loophole, and did not let him participate at "key state meetings"). However, plaintiff testified at his deposition that he had no evidence that Bonacic participated in the decision to lay him off, or harbored any unlawful animus towards him.

Defendant also introduced evidence that after it received notice of plaintiff's 2007 EEOC charge, it enlisted the help of independent counsel to investigate the charge, and that counsel transmitted a letter to the EEOC in August 2007.2 Counsel's letter summarized the findings of the investigation into plaintiff's charge, including a detailed history of plaintiff's employment with the district; a summary of the district's financial health (including the results of an independent audit showing abuse and fraud in the CalWORKs program, and the appointment of a special trustee to oversee the district due to poor district-wide fiscal management); and an overview of the district's antidiscrimination policy, as well as Bonacic's work history, qualifications, and achievements in the role of CalWORKs interim director. The investigation revealed that Bonacic was hired to turn around the district's CalWORKs program and that plaintiff was resistant and uncooperative. Counsel also reported that Bonacic supervised several minority employees, and that no other complaints had been received against her. Plaintiff pointed out that key participants were never interviewed by the district, and that the dean of human resources never personally investigated the allegations. However, Dean of Human Resources Rachelle Sasser testified that all EEOC charges were customarily referred to outside counsel. The district also had policies in place to prevent discrimination and harassment, and plaintiff was aware of these policies.

The trial court granted the district's motion, concluding that the district set forth legitimate, nonretaliatory reasons for its employment decisions and that plaintiff failed to produce any substantial, responsive evidence of pretext. The trial court also concluded that the claim for "failure to investigate" failed, because it was derivative of the retaliation claim, and because the district had a policy to prevent discrimination and had adequately investigated plaintiff's EEOC charge. We agree, and affirm the judgment.

DISCUSSION

"[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) "Once the [movant] has met that burden, the burden shifts to the [other party] to show that a triable issue of one or more material facts exists as to that cause of action . . . ." (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, at p. 850.) The party opposing summary judgment "may not rely upon the mere allegations or denials of its pleadings," but rather "shall set forth the specific facts showing that a triable issue of material fact exists . . . ." (Code Civ. Proc., § 437c, subd. (p)(2).) A triable issue of material fact exists where "the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof." (Aguilar, at p. 850.)

Where summary judgment has been granted, we review the trial court's ruling de novo. (Aguilar, supra, 25 Cal.4th at p. 860.) We consider all the evidence presented by the parties in connection with the motion (except that which was properly excluded) and all the uncontradicted inferences that the evidence reasonably supports. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.) We affirm summary judgment where the moving party demonstrates that no triable issue of material fact exists and that it is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)

1. Retaliation

The Fair Employment and Housing Act (FEHA) prohibits an employer from, among other things, discriminating on the basis of race, age, or gender in the terms and conditions of employment. (Gov. Code, § 12940, subd. (a).) FEHA also makes it unlawful "[f]or any employer . . . to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under [FEHA] or because the person has filed a complaint, testified, or assisted in any proceeding under [FEHA]." (Id., subd. (h).) To establish a prima facie case of retaliation, plaintiff must show he engaged in a "protected activity," that defendant subjected him to an adverse employment action, and a causal link existed between the protected activity and the defendant's action. (Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 874.) If plaintiff establishes a prima facie case of retaliation or discrimination, "the employer must offer a legitimate reason for the adverse employment action, and if the employer does so, the presumption of retaliation disappears, and the burden shifts back to plaintiff to prove intentional retaliation or discriminatory motive" (e.g., that the legitimate reasons for the retaliation are pretext or untrue). (Ibid.)

Pretext may be demonstrated by showing that the proffered reason for the adverse employment action had no basis in fact, did not actually motivate the discharge, or was insufficient to motivate the discharge. An employee must demonstrate such "`"weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for [the termination] that a reasonable factfinder could rationally find them `unworthy of credence,' [citation], and hence infer `that the employer did not act for the [. . . asserted] non-discriminatory reasons."'" (Villanueva v. City of Colton (2008) 160 Cal.App.4th 1188, 1195, italics omitted (Villanueva).) An employer's proffered reasons do not need to be "correct . . . `wise, shrewd, prudent, or competent'"; they need only be nonretaliatory. (See Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 358.)

We do not need to decide whether plaintiff made a prima facie showing of retaliation, because the parties do not dispute that his showing was sufficient, and an alternative analysis — concerning defendant's legitimate reasons for the termination — disposes of plaintiff's cause of action. Defendant presented evidence that its CalWORKs program experienced significant budget cuts, and that plaintiff's management-level position was redundant and was not authorized under the CalWORKs program guidelines. This evidence was not inherently incredible, and we conclude (and plaintiff does not seriously dispute) that defendant met its burden of showing legitimate, nonretaliatory reasons for plaintiff's termination. "`[T]he depressed condition of [the employer's] . . . business and its business decision to reduce its staff with the result that [the employee's] services [are] no longer needed' can be good cause for discharging the employee." (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1732.)

Therefore, the burden shifted to plaintiff to demonstrate that the district's claimed reason was not its true reason, and that his layoff was motivated by retaliatory animus. (Villanueva, supra, 160 Cal.App.4th at p. 1195.) To avoid summary judgment, plaintiff must produce specific and substantial evidence of pretext. (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 807 (Horn).) Plaintiff failed to meet this burden. Some 13 months elapsed between plaintiff's "protected activity" (the EEOC complaint) and his termination. There is no evidence to dispute the fact that the district experienced significant cuts to its CalWORKs budget, other than plaintiff's speculation that the budget cuts must have been insignificant because Bonacic was paid more than he was. It is irrelevant that Bonacic was paid more, since her position (as director) was authorized under the "CalWORKs Program Handbook." Also, there is simply no evidence that the special trustee who made the decision to eliminate plaintiff's position (an outsider appointed under state law to oversee the district), harbored any retaliatory motive. Likewise, there is no evidence that Keith Curry, who recommended the elimination of the supervisor position to the district, harbored any retaliatory motive. The evidence in his declaration that Curry met with Bonacic to discuss the necessary budget cuts and the possibility of eliminating the position of CalWORKS supervisor, without more, does not support a reasonable inference of retaliatory motive.

On appeal, plaintiff relies on the "cat's paw" doctrine adopted in Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, which holds that retaliation may be established even if a plaintiff was terminated by an unbiased decision maker if the decision maker was influenced by a supervisor harboring a retaliatory motive. (Id. at p. 108.) Plaintiff attempts to establish pretext by showing that Bonacic possessed the requisite retaliatory animus because of the EEOC charge against her, and she had her hand in plaintiff's termination. The only evidence that Bonacic had a hand in plaintiff's termination is the fact that Bonacic met with Curry before Curry recommended terminating plaintiff. Plaintiff never argued his "cat's paw" theory in the trial court, and we decline to consider it at any length on appeal. (County of Del Norte v. City of Crescent City (1999) 71 Cal.App.4th 965, 978-979 [new theories generally may not be introduced for the first time on appeal].) To the extent we have considered it, the scant evidence that Bonacic attended a meeting with Curry to discuss the budget cuts before plaintiff's termination is insufficient to support a reasonable inference that Bonacic somehow manipulated Curry into recommending plaintiff's termination to the special trustee. Plaintiff's evidence of pretext must be substantial, not speculative, in order to demonstrate a triable dispute. (Horn, supra, 72 Cal.App.4th at p. 807.)

Plaintiff also points to other "adverse employment actions" to demonstrate pretext, such as Bonacic excluding him from certain state meetings, and giving him poor performance reviews. However, none of this evidence demonstrates pretext because there is simply no basis in the evidence to support a reasonable inference that these actions were taken for any unlawful reason.

In short, there is no reason to infer from all the evidence before the court that the district's proffered reasons for terminating plaintiff may have been pretextual. Therefore, summary judgment on plaintiff's retaliation claim was proper.

2. Failure to Investigate Claim of Harassment and Retaliation

Government Code section 12940, subdivision (k) provides that it is an unlawful employment practice "[f]or an employer . . . to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring." In order to maintain a claim for failure to prevent discrimination or harassment, there must have been an act of discrimination or harassment. "`[T]here's no logic that says an employee who has not been discriminated against can sue an employer for not preventing discrimination that didn't happen, for not having a policy to prevent discrimination when no discrimination occurred . . . .' Employers should not be held liable to employees for failure to take necessary steps to prevent such conduct, except where the actions took place and were not prevented." (Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 289; see also Sneddon v. ABF Freight Sys. (S.D.Cal. 2007) 489 F.Supp.2d 1124, 1132 [Because "[t]he Court has found no viable claim of discrimination[,] . . . there can be no independent cause of action for failure to prevent discrimination under FEHA"].) Here, since plaintiff does not have an actionable claim for discrimination, harassment, or retaliation, his derivative claim must also sink with the ship.

Furthermore, to the extent the complaint advances a theory that the district did not investigate the conduct leading up to plaintiff's initial EEOC charge, other than plaintiff's admittedly unfounded personal opinion, there is absolutely no evidence that defendant was discriminated against on the basis of gender, age, or race, or was unlawfully harassed by Bonacic. There is no material dispute that plaintiff's deposition testimony stating his opinion that he was harassed and discriminated against had no evidentiary foundation, because he admitted in deposition that he had no evidence that Bonacic's treatment of him was motivated by any unlawful animus. (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1119-1120 [unsupported conclusions must be disregarded].) Lastly, the district presented evidence that it had an antidiscrimination policy in place, that plaintiff was aware of the policy, and that plaintiff's EEOC charge was referred to outside counsel for investigation. As such, summary judgment of this claim was clearly proper.

DISPOSITION

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

BIGELOW, P. J. and RUBIN, J., concurs.