Filed 7/30/14 Ader v. Garfield Beach CVS CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
TAMARA ADER,
Plaintiff and Appellant, G049897
v. (Super. Ct. No. RIC10000783)
GARFIELD BEACH CVS, LLC, OPINION
Defendant and Respondent.
Appeal from a judgment of the Superior Court of Riverside County,
Daniel A. Ottolia, Judge. Affirmed.
Law Offices of Victor L. George, Victor L. George and Wayne C. Smith
for Plaintiff and Appellant.
Sidley Austin, Douglas R. Hart, Geoffrey D. DeBoskey and Sheryl K.
Horwitz for Defendant and Respondent.
* * *
Plaintiff and appellant Tamara Ader appeals from the judgment the trial
court entered after granting defendant and respondent Garfield Beach CVS, LLC (CVS)
summary judgment on Ader’s complaint for age, race, and gender discrimination under
the Fair Employment and Housing Act (Gov. Code, § 12900 et seq.; FEHA) and
wrongful termination in violation of public policy. CVS argued, and the trial court
agreed, Ader’s claims failed as a matter of law because her poor job performance
prevented her from establishing a prima facie case under the burden-shifting framework
our Supreme Court has adopted for analyzing discrimination claims, and CVS fired Ader
for the legitimate nondiscriminatory reason she failed to perform her store manager job
adequately.
We affirm. Ader concedes CVS met its initial summary judgment burden
by presenting evidence showing CVS fired Ader because she failed to perform her job
adequately during the six months leading up to her termination. Ader also concedes she
presented no direct evidence CVS unlawfully discriminated against her. In opposing
CVS’s summary judgment motion, Ader instead argued she presented sufficient
circumstantial evidence to allow a reasonable trier of fact to infer CVS’s stated reason for
firing her was untrue or a pretext for unlawful discrimination.
As explained below, we conclude Ader failed to present sufficient evidence
to establish a triable issue on whether CVS’s stated reason for firing her was untrue or
pretextual, or whether CVS nonetheless acted with a discriminatory animus in firing Ader
for her poor job performance. Because we conclude CVS was entitled to summary
judgment based on its showing it fired Ader for the legitimate nondiscriminatory reason
she failed to perform her job adequately, we need not decide whether her poor job
performance also prevented Ader from establishing a prima facie discrimination case.
2
I
FACTS AND PROCEDURAL HISTORY
Ader is a Caucasian female who began working for Sav-On Drug Stores
(Sav-On) in 1982. She started as part-time help and by 1994 worked her way up to store
manager. She continued in that position after CVS acquired Sav-On in 2006.
As a CVS store manager, Ader oversaw all the operations in her store,
including the pharmacy and nonpharmacy retailer space, or “front-store” operations. Her
responsibilities included managing the store’s merchandising and inventory; conducting
daily “store walks” to assess the store and identify all necessary cleaning, stocking, and
organizational tasks; prioritizing and delegating those tasks to store employees; ensuring
the employees timely performed the tasks; controlling theft and inventory loss; training,
supervising, and scheduling store employees; and managing payroll.
Wolfgang Schiefer was Ader’s district manager and direct supervisor
during her initial time with CVS. He rated her performance as exceeding expectations
and considered her to be in the “upper part” of the 17 store managers in his district.
Throughout her time with Sav-On and under Schiefer’s supervision, Ader consistently
received performance evaluations ranging from “meets expectations” to “above
expectations.” In August or September 2008, Schiefer transferred Ader to the CVS store
on Adams Street in Riverside, California (Adams store). Four months later, Schiefer
transferred to a new district closer to his home.
In January 2009, Marilyn Molina, a 44-year-old Latina female, took
Schiefer’s place as Ader’s district manager. At the time, Ader was 50 years old. Molina
held a meeting with all store managers in the district to discuss her expectations and CVS
store standards. In January and early February 2009, Molina also visited Ader’s store
five times to further discuss her expectations and CVS store standards. On each occasion
Molina found Ader’s store did not meet standards for cleanliness, merchandising, and
3
inventory control, and Ader had failed to remedy the deficiencies Molina pointed out on
her previous visits.
In early February 2009, Ader e-mailed Marshall Hayde, a CVS Regional
Sales Manager and Molina’s supervisor, and Chris Brown, CVS’s Human Resources
Business Partner, to express her concern about the demands Molina was making on Ader
and the other store managers in her district. On behalf of several store managers, Ader
requested a meeting with Hayde or Brown without Molina being present. Ader never
received a response to her e-mail.
Approximately one week later, Ader’s store received an unannounced
inspection from Molina, Hayde, Brown, and Manisha Patel, CVS’s Pharmaceutical
Supervisor. Neither Hayde nor Brown had ever been to Ader’s store during the three
years she worked for CVS. Moreover, during her 23 years with Sav-on and three years
with CVS, Ader contends it was “common practice” for a district manager to warn a store
manager that a regional manager soon would visit the store.
During the 20- to 30-minute visit, the group found Ader’s store to be in
“total disarray” and well below CVS standards. Hayde later testified he remembered “the
parking lot being filthy when we drove in with trash and debris and trash overflowing;
. . . the store being generally very dirty with conditions, carpet not vacuumed; . . . very
poor in-stock conditions in the seasonal aisle, as well as cosmetics; and . . . there was still
Christmas up in the store on the sales floor and it was February; and . . . a warehouse
delivery in the back room of the store that was approximately four to five days old that
had not been touched.” When the group asked Ader about her store’s conditions, she had
no explanation or plan to rectify the situation. Instead, she simply responded, “‘I don’t
have time.’”
On the day following the visit, Molina issued Ader a formal performance
write-up based on “Gross negligence on basic store operations and company standards.”
Molina identified 14 categories that required significant improvement, and also provided
4
Ader a work plan for rectifying the situation. Finally, the write-up explained it was the
“[f]inal warning on poor job performance,” and “[a]ny further instances of poor job
performance or inability to do the job will result in termination.” This was the first
formal write-up Ader had ever received. She later testified the write-up accurately
described the deficiencies with her store for the most part, but she thought the
evaluation’s overall tone exaggerated the store’s condition. In opposing the summary
judgment motion, Ader claimed the “contents within the write-up were extremely
exaggerated and some allegations false,” but she failed to identify a single exaggerated or
false condition.
In response to the write-up, Ader asked Molina for permission to “use labor
hours which were originally allotted to my Store 9849 but Molina refused to let me use
those hours.” Instead, Molina repeatedly counseled Ader on how to do her job properly.
Molina also brought in at least four other employees, including two store managers, to
work in Ader’s store for an entire day to help correct the problems described in the
write-up.
Molina returned to Ader’s store about one week after the write-up, and after
the additional crew of employees had cleaned up, restocked, and organized the store.
Ader still had made little progress in rectifying the problems in the store. Molina
returned the next day and provided Ader with a written counseling memo again
describing what Ader should do to fix her store. Over the ensuing weeks, Molina visited
Ader’s store several times. Ader had made marginal progress, but her store continued to
fall below CVS standards. Accordingly, in mid-March Molina issued Ader a “2nd Final
warning on job performance.”
Ader believed Molina was not giving her an adequate opportunity to correct
the deficiencies, and therefore requested to step down as a store manager and become an
assistant manager. Ader’s request was denied because Hayde stated he wanted to see
Ader either succeed or find other employment.
5
In early April 2009, Molina transferred Ader to a smaller store (Market
store) with fewer employees and less inventory to give her a fresh start in a more
manageable environment. Ader claims Molina told her the Market store was “‘dialed
in,’” meaning it was well organized and well run. Molina denied making that statement
because the Market store had no manager at the time Ader was transferred and the two
assistant managers were struggling to run the store adequately. Ader also claims the
Market store was plagued with problems when she arrived, and CVS acknowledged the
store recently failed a store audit.
Upon transferring Ader, Molina assigned her two “‘buddy managers’”—
successful managers at other stores who could help Ader identify and address issues in
her new store. Over the next couple months, one of these managers made several visits to
the Market store to evaluate Ader’s performance and advise her on how to improve her
performance. Unfortunately, Ader continued to have the same problems and failed to
correct the many deficiencies her buddy manager repeatedly pointed out regarding the
cleanliness, merchandising, and inventory for the store.
Ader claims she successfully attacked the problems that existed at the
Market store because she improved the store’s audit score. The store still failed the audit,
however, and the prior score covered a period when the store operated without a
manager. The prior score for the Market store was 64.38 and the May 28, 2009 score
Ader received was 77.33; the minimum score to pass an audit is 85.
Two days before the audit, Molina gave Ader another formal write-up for
her deficient performance. The write-up again listed numerous areas in which Ader was
failing to perform up to CVS standards in managing her store, and concluded, “This will
be [Ader’s] final warning; any further incidents of poor job performance will result in
Termination.” Upon learning of the failed audit, Hayde e-mailed Molina and Brown
stating, “I think we are done with [Ader] at this point.” CVS terminated Ader in
June 2009.
6
Ader filed this action in January 2010. The operative first amended
complaint alleged claims against CVS for discrimination in violation of the FEHA based
on age, race, and gender, and wrongful termination in violation of public policy.1
CVS moved for summary judgment or alternatively summary adjudication,
arguing Ader’s poor job performance prevented her from establishing a prima facie
discrimination case and also provided a legitimate, nondiscriminatory reason for
terminating Ader. Ader argued she did not have to show satisfactory job performance to
establish a prima facie discrimination case because showing she was qualified for the
position was sufficient, and the evidence she presented showed her job performance was
only a pretext to conceal CVS’s true reason for firing Ader — her age, race, and gender.
According to Ader, an inference of discriminatory intent was created by
evidence showing (1) CVS did not follow its own policies in terminating her
employment; (2) Ader’s Latina supervisor (Molina) replaced her at both the Adams and
Market stores with young, Hispanic males; (3) Ader’s replacement at the Adams store
received additional labor hours to address the store’s problems that Molina denied to
Ader at both the Adams and Market stores; (4) Ader’s replacement at the Adams store
failed to improve the store; (5) CVS fired Ader after she improved the Market store’s
performance; and (6) CVS received an anonymous complaint that Molina had told
another manager she was past her prime and should look for other employment, and
1 The first amended complaint also alleged claims against CVS for retaliation
in violation of public policy, hostile environmental harassment, wage and hour violations,
and violation of Labor Code section 226.7, but Ader has abandoned those claims. At the
hearing in the trial court on CVS’s summary judgment motion, Ader conceded the
harassment, wage and hour, and Labor Code claims. In her opening brief, Ader states she
does not challenge the trial court’s ruling granting summary judgment on her retaliation
claim. Accordingly, only the discrimination and wrongful termination claims are at
issue.
7
Molina also had said she thought a younger male employee would look good without his
shirt.
The trial court granted CVS’s motion and entered judgment in CVS’s favor.
Ader timely appealed.
II
DISCUSSION
A. Governing Principles on Employment Discrimination and Summary Judgment
The FEHA protects employees from discrimination based on a wide variety
of characteristics, including age, race, and gender.2 (Gov. Code, § 12940, subd. (a).) In
analyzing an employee’s claim for unlawful discrimination, California courts have
adopted the three-stage, burden-shifting test the United States Supreme Court established
in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. (Guz v. Bechtel National,
Inc. (2000) 24 Cal.4th 317, 354 (Guz); Wills v. Superior Court (2011) 195 Cal.App.4th
143, 159 (Wills).)
“This so-called McDonnell Douglas test reflects the principle that direct
evidence of intentional discrimination is rare, and that such claims must usually be
proved circumstantially. Thus, by successive steps of increasingly narrow focus, the test
allows discrimination to be inferred from facts that create a reasonable likelihood of bias
and are not satisfactorily explained.” (Guz, supra, 24 Cal.4th at p. 354.)
2 Ader does not separately challenge the trial court’s ruling on her claim for
wrongful termination in violation of public policy. Instead, she argues the trial court
erred in granting summary judgment on that claim for the same reasons it erred in
granting summary judgment on her discrimination claim. Because the two claims stand
or fall together, we do not separately address the wrongful termination claim. (Hanson v.
Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 229 [when plaintiff does not argue an
independent basis to support claim for wrongful termination in violation of public policy,
that claim fails when underlying FEHA claim fails].)
8
“At trial, the McDonnell Douglas test places on the plaintiff the initial
burden to establish a prima facie case of discrimination. This step is designed to
eliminate at the outset the most patently meritless claims, as where the plaintiff is not a
member of the protected class or was clearly unqualified, or where the job he sought was
withdrawn and never filled. [Citations.] While the plaintiff’s prima facie burden is ‘not
onerous’ [citation], he must at least show ‘“actions taken by the employer from which
one can infer, if such actions remain unexplained, that it is more likely than not that such
actions were ‘based on a [prohibited] discriminatory criterion . . . .’ [Citation].”
[Citation.]’ [Citations.]” (Guz, supra, 24 Cal.4th at pp. 354-355.) If the plaintiff meets
this initial burden, a rebuttable presumption of discrimination arises. (Id. at p. 355.)
“[T]he 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.]” (Guz, supra, 24 Cal.4th at pp. 355-356.) “This
likewise is not an onerous burden [citation], and is generally met by presenting
admissible evidence showing the defendant’s reason for its employment decision
[citation].” (Wills, supra, 195 Cal.App.4th at p. 160.)
“Finally, if the defendant presents evidence showing a legitimate,
nondiscriminatory reason, the burden again shifts to the plaintiff to establish the
defendant intentionally discriminated against him or her.” (Wills, supra, 195 Cal.App.4th
at p. 160.) The plaintiff may satisfy this burden “‘by producing substantial evidence that
the employer’s stated reasons were untrue or pretextual, or that the employer acted with a
discriminatory animus, such that a reasonable trier of fact could conclude that the
employer engaged in intentional discrimination or other unlawful action.’ [Citations.]”
(McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510, 1529,
original italics (McGrory).)
9
The trial court decides the first two stages of the McDonnell Douglas test as
questions of law. If the plaintiff and defendant satisfy their respective burdens, the
presumption of discrimination disappears and the question whether the defendant
unlawfully discriminated against the plaintiff is submitted to the jury to decide whether it
believes the defendant’s or the plaintiff’s explanation. (Caldwell v. Paramount Unified
School Dist. (1995) 41 Cal.App.4th 189, 201.)
“‘“[W]e must keep in mind that the McDonnell Douglas test was originally
developed for use at trial [citation], not in summary judgment proceedings. . . .”’
[Citation.]” (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 309 (Sandell).)
California’s summary judgment law places the initial burden on a moving party
defendant to either negate an element of the plaintiff’s claim or establish a complete
defense to the claim. (Code Civ. Proc., § 437c, subd. (p)(2).) The burdens and order of
proof therefore shift under the McDonnell Douglas test when an employer defendant
seeks summary judgment. (Wills, supra, 195 Cal.App.4th at p. 160; Sandell, at p. 309.)
An employer defendant may meet its initial burden on summary judgment, and require
the employee plaintiff to present evidence establishing a triable issue of material fact, by
presenting evidence that either negates an element of the employee’s prima face case, or
establishes a legitimate nondiscriminatory reason for taking the adverse employment
action against the employee. (Ibid.)
“[T]o avoid summary judgment [on the second of these two grounds], an
employee claiming discrimination must offer substantial evidence that the employer’s
stated nondiscriminatory reason for the adverse action was untrue or pretextual, or
evidence the employer acted with a discriminatory animus, or a combination of the two,
such that a reasonable trier of fact could conclude the employer engaged in intentional
discrimination.” (Hersant v. Dept. of Social Services (1997) 57 Cal.App.4th 997,
1004-1005 (Hersant); Sandell, supra, 188 Cal.App.4th at p. 314.)
10
“It is not enough for the employee simply to raise triable issues of fact
concerning whether the employer’s reasons for taking the adverse action were sound.
What the employee has brought is not an action for general unfairness but for . . .
discrimination. While, given the inherent difficulties in showing discrimination, the
burden-shifting system established by the Supreme Court is a useful device to facilitate
the adjudication of claims of discrimination, it ultimately, however, does not change what
the employee must prove. In our judgment the fact an employee is the member of a
protected class and has demonstrated triable issues concerning the appropriateness of the
adverse action taken does not so readily demonstrate a discriminatory animus that it is
alone sufficient to establish the fact of discrimination or alone sufficient to avoid
summary judgment.” (Hersant, supra, 57 Cal.App.4th at p. 1005.)
“[D]isbelief of an Employer’s stated reason for a termination gives rise to a
compelling inference that the Employer had a different, unstated motivation, but it does
not, without more, reasonably give rise to an inference that the motivation was a
prohibited one.” (McGrory, supra, 212 Cal.App.4th at pp. 1531-1532.) Indeed, “‘[p]roof
that the employer’s proffered reasons are unworthy of credence may “considerably
assist” a circumstantial case of discrimination, because it suggests the employer had
cause to hide its true reasons. [Citation.] Still, there must be evidence supporting a
rational inference that intentional discrimination, on grounds prohibited by the statute,
was the true cause of the employer’s actions.’ [Citation.]” (Id. at p. 1531, original
italics.)
“We review the trial court’s decision to grant summary judgment de novo.
We are not bound by the trial court’s stated rationale, but independently determine
whether the record supports the trial court’s conclusion that plaintiff’s discrimination
claim failed as a matter of law.” (Wills, supra, 195 Cal.App.4th at p. 161.)
11
B. The Trial Court Properly Granted CVS Summary Judgment
CVS argued it met its initial burden by satisfying both prongs recognized
under the McDonnell Douglas framework. First, CVS argued Ader’s discrimination
claim failed as a matter of law because her poor job performance prevented her from
establishing a prima face discrimination case. Second, CVS argued Ader’s poor job
performance established a legitimate, nondiscriminatory reason for firing her. We
consider each argument separately.
1. We Need Not Determine Whether Ader Can Establish a Prima Facie
Discrimination Case
The parties disagree on whether Ader’s prima facie discrimination case
required her to show satisfactory job performance, or merely to show she was qualified
for her store manager position.3 A handful of California cases have included satisfactory
job performance as an essential element of a prima facie discrimination case without any
analysis or discussion. (See, e.g., Guz, supra, 24 Cal.4th at p. 355; Cheal v. El Camino
Hospital (2014) 223 Cal.App.4th 736, 742; Muzquiz v. Emeryville (2000) 79 Cal.App.4th
1106, 1116; Hersant, supra, 57 Cal.App.4th at p. 1003; Mixon v. Fair Employment &
Housing Com. (1987) 192 Cal.App.3d 1306, 1318.) Only two California cases, however,
have considered the issue CVS and Ader present.
Both cases include satisfactory job performance as an essential element of
the prima facie case, but one opinion viewed this element as merely a qualification
requirement and the other emphasized satisfactory job performance was not an element of
every prima facie discrimination case. (Sandell, supra, 188 Cal.App.4th at pp. 321-322;
Caldwell, supra, 41 Cal.App.4th at pp. 199-200 & fn. 6.) In Sandell, the Court of Appeal
3 The other elements of the prima facie case upon which CVS and Ader agree
are (1) the employee was a member of a protected class; (2) the employee suffered an
adverse employment action, such as termination, demotion, or denial of an available job;
and (3) some other circumstance suggesting discriminatory motive. (Guz, supra,
24 Cal.4th at p. 355.)
12
concluded “a plaintiff must demonstrate some basic level of competence at his or her job
in order to meet the requirements of a prima facie showing, [but] the burden-shifting
framework established in McDonnell Douglas compels the conclusion that any
measurement of such competency should, to the extent possible, be based on objective,
rather than subjective, criteria.” (Sandell, at p. 322.) As the Sandell court explained,
subjective criterion for job performance become relevant in the later stages of the
McDonnell Douglas framework when the reasons for the adverse employment action are
considered. (Ibid.) In Caldwell, the Court of Appeal observed, “Whether the second
element of a plaintiff’s prima facie case of employment discrimination is described as
‘qualification for the position’ or ‘satisfactory job performance,’ it is clear that, where a
plaintiff claims not that he was a model employee but only that other employees with
equivalent foibles did not suffer his fate, an employer cannot prevail simply by citing
deficiencies in the plaintiff’s employment record.” (Caldwell, at p. 200, fn. 6.)
Many federal cases also have considered this same issue under both federal
and California law. Like the California cases, several federal cases include satisfactory
job performance as an essential element of a prima facie discrimination case without any
analysis or discussion. (See, e.g., Cornwell v. Electra Central Credit Union (9th Cir.
2006) 439 F.3d 1018, 1028; Godwin v. Hunt Wesson, Inc. (9th Cir. 1998) 150 F.3d 1217,
1220-1221; Crawford v. MCI Worldcom Communications, Inc. (S.D. Cal. 2001)
167 F.Supp.2d 1128, 1132-1133.) Others, however, refuse to consider poor job
performance as an element of the prima facie case and instead consider it in the later
stages of the McDonnell Douglas framework as a legitimate nondiscriminatory reason for
the adverse employment action. These cases emphasize the elements of a prima facie
discrimination showing necessarily vary with the specific facts and claims of each case.
(See, e.g., Aragon v. Republic Silver State Disposal, Inc. (9th Cir. 2002) 292 F.3d 654,
13
659-660; Davenport v. Riverview Gardens School Dist. (8th Cir. 1994) 30 F.3d 940, 944;
Medina v. Multaler, Inc. (C.D. Cal. 2007) 547 F.Supp.2d 1099, 1123-1124, 1126-1127.)4
California courts similarly recognize “[t]he specific elements of a prima
facie [discrimination] case may vary depending on the particular facts.” (Guz, supra,
24 Cal.4th at p. 355.) In Hersant, the Court of Appeal explained, “Given the varying
nature of the problem, it is impossible to make an exact, all-inclusive statement of the
elements of a prima facie . . . discrimination case applicable in all situations. [Citations.]
The general requirement is that the employee offer circumstantial evidence such that a
reasonable inference of . . . discrimination arises.” (Hersant, supra, 57 Cal.App.4th at
p. 1002; Sandell, supra, 188 Cal.App.4th at p. 310.)
We need not decide whether CVS could meet its initial burden on summary
judgment by showing Ader’s poor job performance prevented her from establishing a
prima facie discrimination case. As explained above, negating an essential element of
Ader’s prima facie case is not the only way CVS could meet its initial summary judgment
burden. CVS also could satisfy its initial burden by showing a legitimate
nondiscriminatory reason for terminating Ader. (See Guz, supra, 24 Cal.4th at p. 357
[“We need not resolve the ‘prima facie burden’ issue, for an alternative analysis disposes
of Guz’s cause of action”].)
4 Ader also cites Damon v. Fleming Supermarkets of Fla., Inc. (11th Cir.
1999) 196 F.3d 1354, as a case that does not require a discrimination plaintiff to show
satisfactory job performance as part of the prima facie case. Damon, however, relies
exclusively on 11th Circuit precedent that modifies the McDonnell Douglas framework
when the employee held the position for an extended period of time. Ader does not cite
any authority from California or any other federal circuit that supports modifying the
McDonnell Douglas framework in this manner. We express no opinion on this approach.
14
2. Ader Failed to Establish a Triable Issue on Whether Her Poor Job
Performance Was CVS’s Legitimate Nondiscriminatory Reason for
Terminating Her Employment
To show it terminated Ader for the legitimate nondiscriminatory reason that
she failed to perform her job adequately, CVS submitted extensive evidence, including
Ader’s deposition testimony; declarations from Hayde and Brown; deposition testimony
by Hayde, Brown, and Molina; and portions of Ader’s personnel file. This evidence
established Ader’s responsibilities as a store manager; CVS’s standards and expectations
for store managers; Ader’s repeated failures to maintain the Adams and Market stores up
to those standards during the six months before her termination; the many attempts
Molina and others made to educate Ader about CVS’s standards and what she should do
to meet them; the formal write-ups and other informal warnings Ader received about her
performance; and Ader’s termination. Ader concedes this evidence satisfied CVS’s
initial summary judgment burden to establish a legitimate, nondiscriminatory reason for
her termination.
The burden therefore shifted to Ader to present evidence from which a
reasonable trier of fact could conclude CVS engaged in intentional discrimination. To do
so, Ader had to present “‘substantial evidence’” showing (1) CVS’s stated reason for
firing her was untrue or pretextual; (2) CVS acted with a discriminatory animus in
terminating her; or (3) a combination of the two. (Wills, supra, 195 Cal.App.4th at
p. 171; Hersant, supra, 57 Cal.App.4th at pp. 1004-1005; Sandell, supra,
188 Cal.App.4th at p. 314.) To show CVS’s stated reason was untrue or pretextual, Ader
had to “‘“demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies,
or contradictions in [CVS’s] proffered legitimate reasons for its action that a reasonable
factfinder could rationally find them ‘unworthy of credence,’ . . . and hence infer ‘that
[CVS] did not act for the [asserted] nondiscriminatory reasons.’ [Citations.] . . .”
[Citations.]’ [Citation.]” (Sandell, at p. 314; Hersant, at p. 1005.)
15
Ader failed to establish a triable issue on whether CVS’s stated reason for
firing her was untrue or pretextual because she failed to present any evidence that
contradicted CVS’s evidence showing it fired her for her poor job performance. In her
separate statement, Ader claimed some of the facts CVS offered regarding her poor
performance were disputed, but the evidence Ader cited fails to establish a triable issue.
The principle evidence on which Ader relies is her own declaration, but her declaration is
highly conclusory and fails to establish the facts Ader identifies in her separate statement
as creating a conflict in the evidence. (See Yuzon v. Collins (2004) 116 Cal.App.4th 149,
166 (Yuzon) [“‘An issue of fact can only be created by a conflict of evidence. It is not
created by “speculation, conjecture, imagination or guess work.” [Citation.] Further, an
issue of fact is not raised by “cryptic, broadly phrased, and conclusory assertions”
[citation], or mere possibilities [citation]’”].)
For example, one of the undisputed facts CVS offers is that Molina coached
Ader six times during January and early February 2009 regarding store cleanliness,
merchandising, and inventory control. To establish this fact, CVS provides a
memorandum Ader signed to acknowledge the date of each of these coaching sessions
and the topics discussed at each session. Despite signing the memorandum, Ader
disputes this fact in her separate statement by claiming she “was never verbally coached
by Molina and received her first and final written warning on February 19, 2009.” To
support this purported fact, Ader cites paragraph 10 of her declaration, which states,
“Prior to February 2009, I had never received a performance counseling or discipline.”
This statement fails to establish a triable issue because it (1) is conclusory; (2) does not
dispute Molina coached Ader in February 2009; and (3) fails to explain why Ader signed
the memorandum acknowledging the coaching sessions if they never occurred. (See
Yuzon, supra, 116 Cal.App.4th at p. 166.)
The most glaring example of the shortcomings in Ader’s evidence is her
repeated reliance on paragraph 18 of her declaration to establish a wide array of facts,
16
including “Hayde believed that the store was not in good shape, but did not believe that
the store was in such disarray as Defendant describes”; “Hayde never asked Plaintiff why
the store was in such poor condition”; “Hayde’s visit with Molina, Brown, and Patel was
a facade and they all left before giving Plaintiff a chance to explain herself or discuss any
potential solutions”; “Molina did not work with Plaintiff to ensure she understood the
responsibilities of a store manager”; and “the content of [a March 2, 2009 write-up] is
false and Plaintiff’s store was greatly improved and did not possess the majority of the
deficiencies listed.”
Paragraph 18 establishes none of these facts and merely states, “I was in
disbelief and shocked that I received this February 19, 2009 write-up. The contents
within the write-up were extremely exaggerated and some allegations false. Moreover,
any issues with the store resulted from the inability to use the labor hours that had been
budgeted to the store.”5 Nothing else in Ader’s declaration is sufficient to establish any
of the foregoing facts or otherwise create a triable issue on whether Ader’s poor job
performance was CVS’s legitimate nondiscriminatory reason for terminating Ader. Ader
identifies facts that she claims are in dispute, but fails to present evidence establishing
those facts.
To contradict CVS’s evidence, Ader also offered the satisfactory
performance reviews she received when she worked for Sav-On and when Schiefer was
her district manager. This evidence fails to establish a triable issue because it does not
conflict with CVS’s evidence, which focused on how Ader inadequately performed her
job during the six months leading up to her termination. Ader cannot create a triable
issue on her performance during that six-month period without some evidence to show
she performed competently at some point during that period. Although she tries to
5 The trial court also sustained CVS’s evidentiary objection to the middle
sentence of paragraph 18 and Ader does not claim the court abused its discretion in doing
so.
17
minimize CVS’s evidence, Ader presents nothing to show her stores met CVS standards
during the relevant time period or that she was held to a different standard than other
store managers.
Because Ader failed to establish a triable issue on whether CVS’s stated
reason for firing her was untrue or pretextual, she had to present substantial evidence
showing CVS nonetheless acted with a discriminatory animus when it fired her.6 (Wills,
supra, 195 Cal.App.4th at p. 171; Hersant, supra, 57 Cal.App.4th at pp. 1004-1005;
Sandell, supra, 188 Cal.App.4th at p. 314.) Ader contends an inference CVS acted with a
discriminatory animus arises from the circumstances surrounding how CVS and Molina
treated her during the six-month period leading up to her termination. Ader
acknowledges none of the following facts or circumstances is alone sufficient to establish
CVS’s discriminatory animus, but she contends a triable issue is established when these
facts and circumstances are considered together. We disagree.
The first circumstance Ader cites to support an inference CVS and Molina
acted with discriminatory animus is that Molina, as Ader’s younger Latina supervisor,
replaced Ader, a 50-year-old Caucasian woman, with young, Hispanic men at both the
Adams and Market stores. The age, race, and gender of Ader’s replacements, however,
do not change the fact Ader failed to perform her job adequately. Ader presents no
evidence to show she was held to a different standard or treated differently than any other
store manager, let alone young, Hispanic men who served as store managers. To the
contrary, the evidence shows Ader’s replacement at the Adams store initially improved
the store’s performance, but it soon deteriorated to its previous condition. Molina
6 If an employee asserting a discrimination claim under the FEHA cannot
defeat his or her employer’s proffered legitimate nondiscriminatory reasons for
termination, the employee still may prevail and obtain some relief if the employee shows
unlawful discrimination nonetheless was a substantial factor motivating the employer’s
decision. (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 211, 241.)
18
responded by transferring the replacement manager to another store, just as she had done
with Ader.7
The second circumstance Ader cites is the purported unwarranted attention
Molina paid to her after becoming Ader’s district manager and Molina’s failure to follow
“company policy and practices” in dealing with Ader. According to Ader, the inspection
Molina, Hayde, and Brown made in February 2009 was “unannounced and
unprecedented” because Hayde and Brown had never been to her store before and it was
“common practice” for a district manager to warn a store manager the regional manager
would visit the store. Ader also complains Molina failed to follow “company policy”
when she gave Ader a formal write-up that said it was Ader’s final warning even though
Ader never before had received a write-up or warning. These contentions do not support
an inference CVS and Molina acted with discriminatory animus because Ader offers
nothing other than her own conclusory opinion to show the inspection, her evaluation, or
any attention she received from Molina violated any policy or practice of CVS. More
importantly, these contentions do not show Ader was performing adequately or change
the fact her store did not meet CVS standards before or after the inspection. Nor does her
evidence create an issue on whether the write-up was warranted. Ader received several
more write-ups and warnings before she was fired, and Ader presented no evidence
showing she was treated differently than any other store manager.
Third, Ader contends an inference of discriminatory animus arises from
Molina transferring Ader to the Market store under the pretext the store was “dialed in”
and would make Ader’s job easier, when the store actually had just failed an audit.
7 Ader also presented photographs of the Adams store after she was
transferred and contends they show performance deficiencies by the store manager for
which she received a write-up. Ader, however, does not contend or present any evidence
to show the store manager did not receive a write-up and, as stated above, the evidence
shows he too was transferred. Moreover, Ader fails to present any evidence regarding
when the photographs were taken other than “after” she was transferred.
19
Although Molina denies she ever represented the Market store was “dialed in,” neither
that disagreement nor the transfer itself supports an inference of discriminatory animus
because Ader fails to present any evidence to show the Market store was in worse
condition than the Adams store, or that Molina did not believe the Market store provided
Ader a better chance to succeed than the Adams store. (See Wills, supra,
195 Cal.App.4th at pp. 170-171 [“‘It is the employer’s honest belief in the stated reasons
for [the employment action] and not the objective truth or falsity of the underlying facts
that is at issue in a discrimination case’”].)
The fourth circumstance Ader cites occurred when Molina allowed Ader’s
replacement at the Adams store to use “allotted but unused labor hours” to remedy the
Adams store’s problems, but refused to allow Ader to use “allotted but unused labor
hours” to address problems at either the Adams or Market stores. Ader, however, fails to
provide any evidence that supports this contention. Ader relies on her own declaration
and a one-page computer report, but nothing in that report’s confusing codes,
abbreviations, and numbers clearly shows the Adams store was allowed to use more labor
hours after Ader left, and Ader does not explain what any of the codes, abbreviations, and
numbers mean. Moreover, Ader ignores that Molina brought in a team of employees and
managers immediately after Hayde, Brown, and Molina inspected the Adams store, and
that team spent an entire day cleaning, stocking the shelves, and organizing the store for
Ader.
Fifth, Ader contends an inference of discriminatory animus arises from
CVS’s decision to terminate her despite her success in addressing the Market store’s
problems and raising its audit score. Ader, however, provides no evidence other than her
conclusory declaration to show she succeeded in addressing the Market store’s problems.
She also ignores that the Market store’s audit score under her management was still well
below a passing score, and the Market store’s previous audit score was for a period
during which it had no manager. Moreover, Ader’s buddy manager who visited her
20
weekly at the Market store reported Ader was performing below standards and failed to
correct many of the specific deficiencies he pointed out to her.
Finally, Ader contends the foregoing circumstances support an inference of
discriminatory animus when considered in conjunction with an anonymous complaint
CVS’s Human Resources Department received about Molina telling an “older” manager,
“You are passed [sic] your prime and need to look for other employment.” The evidence
shows CVS received this complaint around the same time it terminated Ader, but Ader
fails to present any evidence to corroborate that Molina actually made this comment or to
show the context in which this comment was purportedly made. Ader also ignores that
Hayde suggested terminating Ader, not Molina.
Discriminatory remarks that are not part of the employment decision at
issue have little probative value, especially without evidence showing the context in
which the remarks were made. Nonetheless, the remarks may be considered if they
“corroborate direct evidence of discrimination or gain significance in conjunction with
other circumstantial evidence. . . . Thus, a trial court must review and base its summary
judgment determination on the totality of evidence in the record, including any relevant
discriminatory remarks.” (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 541.)
We have reviewed the totality of the evidence in the record, including
Molina’s purported remark, and conclude the evidence does not establish a triable issue
on whether CVS and Molina acted with a discriminatory animus.8 “[A] plaintiff’s
‘suspicions of improper motives . . . primarily based on conjecture and speculation’ are
not sufficient to raise a triable issue of fact to withstand summary judgment. [Citation.]”
(Kerr v. Rose (1990) 216 Cal.App.3d 1551, 1564.) Here, Ader offers nothing but
8 We also consider the anonymous complaint that Molina allegedly said she
thought a younger male employee would look good without his shirt, but we find it to
have even less probative value because it has nothing to do with the decision to fire Ader
and also lacks any corroboration or evidence to explain the context in which it was made.
21
conjecture and speculation that CVS and Molina unlawfully discriminated against her
based on her age, race, or gender. None of the evidence Ader offers would allow a
reasonable fact finder to conclude CVS and Molina unlawfully discriminated against
Ader, and therefore we affirm the trial court’s decision granting CVS summary judgment.
III
DISPOSITION
The judgment is affirmed. CVS shall recover its costs on appeal.
ARONSON, J.
WE CONCUR:
O’LEARY, P. J.
IKOLA, J.
22