Filed 1/29/21 Colborn v. Chevron U.S.A. CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
SUSAN COLBORN,
Plaintiff and Appellant,
A159040
v.
CHEVRON U.S.A. INC., (Contra Costa County
Super. Ct. No. MSC14-01280)
Defendant and Respondent.
Appellant Susan Colborn challenges the trial court’s grant of summary
judgment to her former employer, Chevron U.S.A. Inc. (Chevron), on her
claims under the Fair Employment and Housing Act (FEHA) (Gov. Code
§ 12900 et seq.) of retaliation and failure to prevent retaliation.1 Applying de
novo review and employing the burden shifting approach to FEHA claims
adopted by our high court in Guz v. Bechtel National, Inc. (2000)
24 Cal.4th 317 (Guz) and subsequent cases, we conclude that Chevron met its
burdens to show Colborn could not establish a prima facie case and that it
acted for legitimate nonretaliatory reasons and that Colborn failed to raise
triable issues precluding summary judgment. We therefore affirm.
This is the third appeal in this case. In earlier consolidated appeals,
1
we reversed the trial court’s denial of Colborn’s request for relief from default
and associated award of costs to Chevron. (Colborn v. Chevron U.S.A. Inc.
(Mar. 26, 2019, A150831, A151494) [nonpub.].)
1
BACKGROUND
I.
Colborn’s First Amended Complaint
In her first amended complaint (FAC) against Chevron, filed in 2013,
Colborn alleged that she worked for Chevron and one of its wholly owned
subsidiaries from 1988 until her termination in March 2011. In
January 2011, her supervisor informed her that management had ultimately
assigned to an employee (referred to as a “direct report”) who directly
reported to Colborn, Terry Reich, a performance rank that was lower than
what had been previously “agreed upon” in a meeting that had been held in
late 2010. Colborn contacted the human resources department and informed
them she thought Reich’s final ranking was unfair but was told it would not
be changed and that Reich had fallen behind his peers.
The FAC further alleges that on February 23, 2011, she received her
own ranking from her supervisor, Denise Souza. This ranking was “the
lowest she had received in her 23 years of employment with Chevron,” and
she believed she was given that low rank “because of and/or in retaliation for
her refusal to participate in what she believed was illegal discrimination,
based on age.” While somewhat unclear, the FAC appears to be alleging that
Colborn believed the low score given to Reich was age discrimination and
that her refusal to give that low score to him “was the reason behind adverse
employment actions [against Colborn] including, but not limited to
reprimand, alleged insubordination and negative annual performance
ranking.” The FAC alleges that Reich “complained about suspected age
discrimination and his performance ranking was changed (to what [Colborn]
initially prepared) as a result.”
2
The FAC further alleges that Colborn “filed an intake questionnaire
with the [Oakland office of the U.S. Equal Employment Opportunity
Commission (EEOC)] regarding this issue” on February 25, 2011, and “spoke
with an EEOC investigator at the Oakland office and completed a charge of
discrimination” on March 8, 2011. When she returned to Chevron from a
vacation on March 9, 2011, she found “ ‘Steps to Employee Problem Solution
Process’ (‘STEPS’) paper work for [Reich] in her Inbox.” The same morning,
Souza asked to meet with her to discuss what Colborn “wanted to include in
the STEPS paperwork.” She met with Souza and a representative from
human resources, who were “abrasive in confronting” her, which she believed
“was retaliation as a result of her speaking with the EEOC.” Colborn
contacted the EEOC again and “informed them of the situation.”
The next day, March 10, she emailed Souza’s supervisor regarding the
issues that had arisen the day before. That afternoon, Souza and a Human
Resources representative came to her office, confiscated her badge, company
Blackberry and credit card, and told her security guards would escort her out
of the building. On March 11, 2011, Colborn returned to the EEOC Oakland
office and filed a subsequent charge for unfair termination, and later filed a
complaint with the California Department of Fair Employment and Housing
(DFEH).
The FAC asserts two causes of action, both for violations of a provision
of FEHA, Government Code section 12940. The first, under subdivision (h),
is based on the allegations that defendants “retaliated against her for
refusing to participate in and complaining about unlawful discrimination on
the basis of age” and that “the stated reasons (insubordination) for her
termination were pre-textual.” The real reason for her termination, the FAC
alleges, was “her refusal to change her performance review of another
3
employee, (Terry Reich) which she reasonably believed it was discriminatory
[sic]—based upon that employee’s age rather than his performance.” The
FAC also alleges Colborn “was instructed by her supervisor to change her
performance review of Mr. Reich, and when she refused and complained, she
was disciplined for insubordination” by having her employment terminated.
According to the FAC, Colborn’s complaints and refusal to participate in
suspected age discrimination against Reich were a motivating reason for her
termination. The second cause of action, under Government Code
section 12940, subdivision (k), alleges that Chevron had constructive notice of
and failed to take reasonable steps to prevent the alleged discrimination and
retaliation against Colborn.
II.
The Summary Judgment Record
The parties’ papers regarding Chevron’s motion for summary judgment
flesh out the events referred to in the FAC. According to these papers, in
2009, after Colborn had worked for Chevron and one of its subsidiaries for
21 years in positions in the United States and abroad, her assignment as an
expatriate ended, her visa expired and she sought a new position within the
company. In her previous positions, Colborn was “promoted up through
10 pay grades” and “consistently recognized as a technical resource, for
producing quality work, and for meeting [her] responsibilities no matter what
assignment [she] was given.” In June 2009, Colborn was within days of being
terminated for lack of a position when Souza, the manager of Chevron’s
Operational Excellence Organization for the Business and Real Estate
Services division (CBRES), hired Colborn for a management position.
Colborn knew Souza from earlier in her career at Chevron.
4
From the beginning of her employment with CBRES, Colborn appeared
to Souza to be disinterested in the work. She told Souza she was “trying to
‘post’ out of the group and find another position . . . in the Global Upstream &
Gas (‘Upstream’) organization where she had previously worked as an
expatriate.” She spent significant time, while working, applying for other
positions and inquiring about the status of the selection process for those
positions. Souza inferred Colborn had accepted the position in CBRES “only
so she would not be terminated when her expatriate assignment had
previously ended.” As of April 2010, ten months into her new position, she
wrote that her career goal was to return to Upstream as soon as possible.
Souza discussed some performance deficiencies with Colborn during
their regular one-on-one meetings. Among other things, Colborn “was not an
effective supervisor, did not manage her direct reports, including Reich.”
Souza did not oppose Colborn applying for other jobs. However, Souza spoke
with Colborn about the fact that she was not sufficiently “focused on the work
required of her position because of the inordinate amount of time she spent
trying to return to the Upstream organization where she previously worked.”
And in November 2010, having recently received complaints that Colborn’s
conduct in seeking other positions was disruptive and inconsistent with
established protocol, Souza consulted with Human Resources, counseled
Colborn about the issue and gave her a written warning.
Chevron’s performance evaluation process is referred to as the
“Performance Management Process,” or “PMP.” That process entails
reviewing employees on “their overall performance, behavior, and
accomplishments relative to their peers, and their contributions to the success
of their group.” Employees complete portions of a PMP form describing their
own achievements and their supervisors then review the form and add their
5
own comments. Then, at meetings with other supervisors, employees are
“collectively discussed and given a numerical rating of 1 (‘Exceptional
Performance’); 2+, 2, or 2- (varying degrees of ‘Meets Performance
Expectation’); or 3 (‘Falls Short of Performance Expectations’), as compared to
the performance of their peers.” Peers are “individuals in the organization
that are at the same [pay grade].” A supervisor “may have in mind an initial
rating for the employee going into the ranking sessions,” but “that rating may
change during the ranking discussions.”
On February 24, 2011, Colborn received her 2010 PMP, and Souza
discussed the ranking with her. She was ranked “2-.” That meant she was
meeting most, but not all, expectations and performing at a level below that
of her peers.2 Souza discussed with Colborn why she was ranked lower than
her peers and areas where she needed to improve. The feedback section of
the report contained a mix of positive and negative feedback. Colborn
received a pay raise after getting this rating.
One of Colborn’s important duties as a manager was to effectively
supervise her direct reports, including Reich. She was responsible for
managing their performance, including coaching and counseling them as
necessary. She was also responsible for conducting their performance
reviews. Throughout 2010, Colborn had expressed concerns about Reich’s
performance, complaining that he was not completing his tasks on time and
that she often had to perform his work for him. She told Souza she “planned
to ‘let him fail’ to ‘prove’ that he had performance deficiencies.” Souza told
her that, as Reich’s supervisor, “it was her job to coach him and to ensure she
provided him feedback on his performance so he could improve.”
2 Colborn had received a “2” rating in 2008, before she joined CBRES,
and in 2009.
6
Toward the end of 2010, Souza and Colborn discussed Reich’s
performance ranking and agreed on a tentative ranking of “2-.” Colborn
agreed to that ranking and thought it was “a fair assessment because Mr.
Reich had inconsistent follow through, a subject [she had] discussed with Ms.
Souza throughout 2010.” There had been three “substantial projects” that
year for which Reich “required coaching with little to no progress.” He had
not completed one project and Colborn had to perform much of his work on
another. During the management team meeting about Reich’s initial
ranking, the subject of his age never came up.
During subsequent sessions attended by other managers and
supervisors to discuss employees’ performances and compare them to those of
their peers, it was decided that Reich’s “rating for 2010 was a ‘3’ because he
was not meeting expectations relative to his peers.” Colborn understood that
Reich’s rating could be changed during this discussion. The final ranking
was determined at a meeting Colborn did not attend, where the subject of
Reich’s age did not come up. Souza told Colborn Reich had been ranked a “3”
because he had not performed as well as his peers, and provided notes that
indicated he was “falling short of expectation along the way” and had been
coached “with no progress.”
Colborn did not believe “3” was a fair rating for Reich. On February 22,
2011, Souza told her to “come up with a reason for Mr. Reich’s final rating,
stating something to the effect of ‘just figure something out,’ or ‘you’ll think of
something.’ ” However, Colborn never told Souza or anyone else at Chevron
that she believed Reich had been rated a “3” or been treated unfairly because
of his age.3 She did not remember complaining, nor recall ever having formed
3 Colborn purported to dispute this fact, which was asserted in Souza’s
declaration, based on her inability to recall whether she complained to
7
the opinion, that Reich’s rating was reduced from “2-” “ to “3” based on his
age. She simply believed the “2-” rating “was a fair assessment because
Mr. Reich had inconsistent follow through, a subject I discussed with
Ms. Souza throughout 2010.” Colborn recalled that Reich’s tendency to miss
deadlines or his “commitment follow-through” issue was “why we ended up
where we did with his final rank.”
Chevron policy required that supervisors of employees who received a
rating of “3” create a Performance Improvement Plan, or “PIP,” to assist the
employee to improve. A PIP is not a disciplinary measure; it is “a tool used to
focus employees on areas needing improvement in order to help them to
succeed.” Souza and Bob Howisey of Human Resources reminded Colborn
multiple times that Reich’s “3” rating required a PIP and provided her
information to assist her in creating one. Souza and Howisey directed
Colborn to explain the reasons for the rating to Reich and discuss his
performance deficiencies so that he understood what areas he needed to focus
on and develop.
Colborn did not want to participate in putting Reich on a PIP because
she disagreed with his “3” rating. She never prepared a PIP for Reich or
placed him on a PIP. Instead, she met with Reich and delivered the message
that his rating was a “3” because he had not performed at the level of his
peers. She did not “say anything more because [she] was not comfortable just
making something up and [she] had no more specific information regarding
the comparison with his peers or otherwise.”
After receiving his rating, Reich complained to Souza and Colborn that
Colborn had not given him feedback and said he had questions about the
anyone at Chevron that she believed Reich’s final rating was based on his age
rather than his performance. Not recalling whether an event occurred is not
evidence that it did occur and does not raise a genuine issue of triable fact.
8
rating. He emailed Souza and Colborn, requesting “the detail PIP [sic] that
will identify and validate that [his] performance fits in this category” and
stating he wanted “written specifics.” He complained that he “should have
been aware in 2010 if [his] performance was lacking.” He requested “more
detail on where [he] fell short in 2010” and, once he received the PIP, that
someone “go over the details and address those areas that are identified” with
him. Colborn responded with a two-sentence email stating, “I do not have
anything further of value to add” and “I am sorry you feel the way you do.”
In Souza’s view, “[t]his was not an acceptable response by a manager.”
Reich filed a formal complaint with Human Resources, invoking a
“process [called STEPS] that involves having a facilitated discussion between
the supervisor and employee to resolve disputes.” Souza declared, apparently
in connection with the STEPS process, that “[i]t was discovered that Ms.
Colborn had not provided Mr. Reich adequate feedback during the
performance year as she and [Souza] had previously discussed she would do
when she expressed concerns to [Souza] about Mr. Reich’s performance.”
Colborn partly disputes this, stating she “provided constructive feedback” to
Reich throughout 2010.
On February 28, 2011, Reich emailed Souza and Howisey stating that
Colborn had said “she would not be helping [him] with the PIP [and] to
contact [Howisey].” Howisey advised Souza, “The PIP is [Colborn’s]
responsibility as [Reich’s] supervisor. She needs to own this from start to
finish as she will be the one determining if he has successfully met the PIP
expectations.” Howisey said he might need Souza’s “assistance in helping
[Colborn] understand what her responsibilities are if [Reich] is correctly
quoting her that she would not be helping him with his PIP.”
9
Colborn took a vacation at some point and returned on March 9, 2011,
to find Reich’s formal STEPS complaint in her email inbox. In it, Reich
stated, among other things, “I feel because of my age, being a white male and
years of experience, I am being targeted and discriminated against.” At some
point previously in 2011, Howisey had made a comment in Colborn’s presence
about Reich “not keeping up with his peers and that [he] should retire or
leave.” Colborn was concerned about Reich’s final rating “and his belief that
he was being discriminated against based on age.” However, as we have
stated, Colborn does not remember ever thinking Reich’s performance rating
was made a “3” rather than a “2-” because of his age or expressing such a
belief to anyone at Chevron.
On March 9, 2011, Souza attempted to meet with Colborn to discuss
responding to Reich’s request for specific information regarding his
performance rating. She stopped by Colborn’s office at about 11:15 a.m. and
was taken aback when, according to her, Colborn refused to meet with her.
When asked why, Colborn said she wanted more information about her own
performance rating, which Souza viewed as unrelated to Souza’s request to
meet with Colborn about Reich’s need for feedback. According to Souza, even
though she offered to talk with Colborn about her own rating again, Colborn
“reiterated that she was unwilling to meet,” and told her “that if I wanted
anything from her, I needed to put it in writing because she would not have a
verbal discussion.”
Colborn denied telling Souza she would not meet with her but admitted
she “asked [Souza] why we were meeting, for specifics” and told Souza she
would need to put in writing an agenda of what was going to be discussed
before Colborn would meet with her. Colborn agreed that she asked Souza
“about discussing my 2010 review.”
10
After “giving Ms. Colborn some time to reflect,” Souza emailed her at
1:57 p.m. that same day, stating she wanted to meet at 3:00 p.m. to discuss
Reich’s request for information. Colborn responded that she had just sent
Souza the completed comments for Reich’s STEPS documentation and that
Souza was “welcome to follow-up with Bob [Howisey] as needed.”4
Souza continued to press for a meeting, writing to Colborn that she had
asked Howisey “to come over at 3pm to meet with us” and that “we’ll come by
at 3pm to pick you up.” Colborn, copying Howisey, responded again, “You
have everything you need from me as [Reich’s] Supervisor. Please feel free to
make comments in the documents that I have provided to you.”
This time, Howisey followed up, writing, “Susan, I’m sorry but I
disagree. [¶] What you provided is not satisfactory for several reasons. [¶] In
addition I need to understand what happened this morning on your refusal to
meet with [Souza] to address this important STEPS issue. [¶] We will see you
at 3:00.” Colborn responded, “Thanks Bob. As mentioned, you have what is
needed from me as [Reich’s] Supervisor. I am happy to review written
comments/additions from you and Denise.”
According to Souza, at 3:00 p.m., she and Howisey went to Colborn’s
office, where Colborn saw them through a window while on a phone call.
Colborn interrupted her call to tell them she would not meet and asked them
to put everything in writing, to which Souza responded that they would wait
4 In its moving papers, Chevron did not include the STEPS
documentation that Colborn sent, but Souza’s declaration describes it as
“insufficient” and “not adequately or specifically inform[ing] Mr. Reich of the
reasons for his ‘3’ rating as he had requested.” Colborn’s declaration attached
the STEPS documentation, in which she stated to Reich that she believed a
ranking of “2-” “fairly represents your performance for 2010” and that she
was told the ranking of “3” was “relative to your peers,” but that she “did not
receive any specific information on this decision.”
11
outside while Colborn finished her call. According to Souza, “[a]fter a few
minutes, Ms. Colborn narrowly opened her door to prevent us from entering
and stated she would not meet. She repeatedly told us ‘no,’ she would not
meet. She then closed the door and went back to her desk.” Howisey then
opened her door and “specifically told her that our request to meet was a
direct instruction, that refusing to meet would be considered insubordination,
and he asked if she would please reconsider.” Colborn still refused and said,
“ ‘I will not meet with you. Please just write me up,’ and closed her door.”5
Colborn’s account of these events is similar, but it varies in two
respects. First, she denied telling Howisey she would not meet with him and
Souza. However, a document she attached to and authenticated in her
declaration as an email she wrote to herself the following day, which she
stated “describ[es] this incident,” states, in relevant part: “I returned to work
from vacation yesterday. Yesterday afternoon, Denise [Souza] made
arrangements for me to meet with her and Bob Howisey to discuss Terry
Reich’s STEPs process. Terry is using STEPs because he believes that his
salary treatment is also unfair. Prior to the meeting I completed the
Supervisor’s comments and forwarded them to Denise and Bob. There was no
reason to meet with them. When they arrived at my office, from the hallway
Bob critized [sic] my STEPs comments, told me they were ‘sad’ and then
threatened me with insubordination because I would not meet with them.
This was very disrespectful and demeaning. So I went ahead and told them
both that they were retaliating and I was going to contact the EEOC, as that
is what I told to do [sic] when I met with the representative on Tuesday. I
contacted the San Francisco office because I could not get anyone in
5 Souza’s notes of these events, made that afternoon, are consistent
with this account.
12
Oakland.” (Italics added.) When shown this document at her deposition,
excerpts of which were submitted by Chevron, Colborn admitted it was
accurate.
Colborn also admitted in deposition that, after receiving Souza’s email
about meeting with her and Howisey at 3:00 p.m., she understood Souza “was
insisting that they come and talk to [her]” and that “they still wanted to meet
with [her].” Further, she acknowledged that her responding email telling
Souza she had “everything you need from me” and to “feel free to make
comments in the documents” was telling Souza that she “didn’t think it’s
necessary to meet.” She sent the same message to Howisey after he
intervened.
In her declaration and response to Chevron’s statement of undisputed
facts, Colborn also admitted that when Souza and Howisey arrived at her
office and tried to speak with her, she spoke to them in the hallway and
(again) “told them that [she] had given [her] comments and there really was
not anything else [she] could add.” In her deposition, she admitted she
understood at the time that Howisey was instructing her she had to meet
with Souza and that Howisey told her “that [she] would be insubordinate if
[she] didn’t meet with them.” She also admitted she told Howisey “to
document it, to write [her] up.” In an email she wrote to Souza’s supervisor
the day after these events, she stated that Souza made arrangements to meet
with her and Howisey, that “[t]here was no reason to meet with them” and
that Howisey “threatened [her] with insubordination because [she] would not
meet with them.” (Italics added.)
Colborn’s second variation from Chevron’s account is her declaration
statement that she told Souza and Howisey they were “retaliating and that
[she] would contact or had already contacted the EEOC.”
13
On March 10, 2011, Souza and a person from Human Resources
informed Colborn that her employment was being terminated. According to
Souza, Colborn was fired “based solely on her insubordinate and
unacceptable behavior.”
III.
The Trial Court’s Ruling
The trial court issued a lengthy ruling granting Chevron’s motion for
summary judgment. The court explained the bases for its ruling, which
included its conclusions, in applying the burden-shifting McDonnell Douglas
test (which we will soon discuss), that Colborn was required but failed to
show she engaged in any protected activity; Chevron demonstrated a valid
and lawful reason for firing Colborn; and Colborn did not raise a triable issue
of fact regarding whether the firing was pretextual.
The court entered judgment in favor of Chevron and against Colborn,
and Colborn timely appealed.
DISCUSSION
I.
Legal Standards
A. Summary Judgment
Summary judgment is properly granted when there is no triable issue
as to any material fact and the moving party is entitled to judgment as a
matter of law. (Code Civ. Proc., § 437c, subd. (c).) “First, and generally, from
commencement to conclusion, the 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 (Aguilar).) “[G]enerally, the party
moving for summary judgment bears an initial burden of production to make
14
prima facie showing of the nonexistence of any triable issue of material fact;
if he carries his burden of production, he causes a shift, and the opposing
party is then subjected to a burden of production of his own to make a prima
facie showing of the existence of a triable issue of material fact.” (Ibid.) “A
prima facie showing is one that is sufficient to support the position of the
party in question.” (Id. at p. 851.)
“[H]ow the parties moving for, and opposing, summary judgment may
each carry their burden of persuasion and/or production depends on which
would bear what burden of proof at trial.” (Aguilar, supra, 25 Cal.4th at
p. 851.) “[I]f a defendant moves for summary judgment against [a plaintiff
who would bear the burden of proof by a preponderance of the evidence at
trial], he must present evidence that would require a reasonable trier of fact
not to find any underlying material fact more likely than not—otherwise, he
would not be entitled to judgment as a matter of law, but would have to
present his evidence to a trier of fact.” (Id. at p. 851.) To establish a triable
issue of fact, a plaintiff opposing summary judgment must present evidence
that, together with permissible inferences, shows the conduct she complains
of “more likely than not” occurred. (Id. at pp. 852, 856-857.) If all the
evidence presented by the plaintiff and permissible inferences show and
imply that unlawful conduct is “only as likely as permissible” conduct “or
even less likely,” the court must grant the defendant’s motion for summary
judgment, “because a reasonable trier of fact could not find for the plaintiff.”
(Id. at pp. 852, 857, italics omitted.)
Finally, “even though the court may not weigh the plaintiff’s evidence
or inferences against the defendants’ as though it were sitting as the trier of
fact, it must nevertheless determine what any evidence or inference could
show or imply to a reasonable trier of fact. . . . In so doing, it does not decide
15
on any finding of its own, but simply decides what finding such a trier of fact
could make for itself.” (Aguilar, supra, 25 Cal.4th at p. 856.)
We independently review an order granting summary judgment.
(Aguilar, supra, 25 Cal.4th at p. 860.) Like the trial court, we consider all
the evidence and all the inferences reasonably drawn therefrom (Code Civ.
Proc., § 437c, subd. (c); Aguilar, at p. 843) and view such evidence and
inferences in the light most favorable to the opposing party. (Aguilar, at
p. 843.) We “view the evidence in a light favorable to plaintiff” as the
nonmoving party, liberally construing her evidentiary submission while
strictly scrutinizing defendants’ own showing and resolving any evidentiary
doubts or ambiguities in plaintiff’s favor. (Saelzler v. Advanced Group 400
(2001) 25 Cal.4th 763, 768.)
B. FEHA Retaliation Claims
Colborn’s retaliation claim is based on the retaliation provision of
FEHA, which makes it unlawful for an employer “to discharge, expel, or
otherwise discriminate against any person because the person has opposed
any practices forbidden under [FEHA].” (Gov. Code, § 12940, subd. (h).)
In Guz, supra, 24 Cal.4th 317, the California Supreme Court adopted
the “three-stage burden-shifting test established by the United States
Supreme Court” for trying discrimination claims brought under FEHA. (Guz,
at p. 354.) That test, known as the McDonnell Douglas6 test, applies not only
to discrimination claims but also to FEHA claims alleging retaliation.
(Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz).)
The McDonnell Douglas test “places on the plaintiff the initial burden
to establish a prima facie case of discrimination.” (Guz, supra, 24 Cal.4th at
6 The test was first established in McDonnell Douglas Corp. v. Green
(1973) 411 U.S. 792.
16
p. 354.) If the plaintiff meets that burden, a presumption of discrimination
arises. (Id. at p. 355.) The presumption, which is rebuttable, shifts the
burden to the defendant employer to produce evidence showing it acted “for a
legitimate, nondiscriminatory reason.” (Id. at pp. 355-356.) “If the employer
sustains this burden, the presumption of discrimination disappears.” (Id. at
p. 356.) “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.” (Ibid.)
To establish a prima facie case of retaliation under FEHA, plaintiffs
must show “ ‘that (1) they engaged in activities protected by the FEHA, (2)
their employers subsequently took adverse employment action against them,
and (3) there was a causal connection between the protected activity and the
adverse employment action.’ ” (Husman v. Toyota Motor Credit Corp. (2017)
12 Cal.App.5th 1168, 1192-1193.) The causal link element required to satisfy
plaintiff’s first prong burden may be established “by producing evidence of
nothing more than the employer’s knowledge that the employee engaged in
protected activities and the proximity in time between the protected action
and the allegedly retaliatory employment decision.” (McRae v. Dept. of
Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 388.)
If the plaintiff meets that first prong burden, a presumption of
discrimination or retaliation arises, shifting the burden to the employer.
(Guz, supra, 24 Cal.4th at p. 354.) “If the employer produces substantial
evidence of a legitimate, nondiscriminatory reason for the adverse
17
employment action, the presumption of discrimination created by the prima
facie case ‘ “simply drops out of the picture” ’ [citations] and the burden shifts
back to the employee to prove intentional discrimination.” (Morgan v.
Regents of University of Cal. (2000) 88 Cal.App.4th 52, 68 (Morgan).)
The employer’s burden under the second prong is to articulate a
legitimate reason for its employment decision, that is, one unrelated to
retaliation or discrimination. 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.” (Wills v. Superior Court
(2011) 195 Cal.App.4th 143, 160 (Wills).) “[I]f nondiscriminatory [or
nonretaliatory], [the employer’s] true reasons need not necessarily have been
wise or correct.” (Guz, supra, 24 Cal.4th at p. 358.) “ ‘It is the employer’s
honest belief in the stated reasons for firing an employee and not the
objective truth or falsity of the underlying facts that is at issue in a
discrimination case.’ ” (Wills, at p. 170.)
“If the employer produces a legitimate reason for the adverse
employment action, the presumption of retaliation ‘drops out of the picture,’
and the burden shifts back to the employee to prove intentional retaliation.”
(Yanowitz, supra, 36 Cal.4th at p. 1042.) “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 [retaliatory] motive.” (Guz,
supra, 24 Cal.4th at p. 354.) “Direct evidence of retaliation may consist of
remarks made by decisionmakers displaying a retaliatory motive.”
(Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th 803, 816.)
In Guz, the court addressed to a great extent how the McDonnell
Douglas formula applies to an employer’s motion for summary judgment
against a claim of employment discrimination. (Guz, supra, 24 Cal.4th at
18
p. 356.)7 As the moving party, the court observed, an employer may meet its
burden to show the plaintiff’s action has no merit by demonstrating that one
or more elements of the plaintiff’s claim cannot be established or that there is
a complete defense to the action. (Ibid.). “Only after the defendant has met
that burden must the plaintiff respond with admissible evidence raising a
triable issue.” (Ibid.) As an alternative or in addition to showing the plaintiff
cannot establish an essential element of a FEHA claim, the defendant may
“proceed[] directly to the second step of the McDonnell Douglas formula” by
“set[ting] forth competent, admissible evidence [citations] of its reasons,
unrelated to [prohibited] bias, why it [took the complained of adverse
employment action].” (Id. at p. 357.) If the employer’s explanation is proved
by competent and admissible evidence and its reasons are unrelated to
intentional bias, the burden shifts to the plaintiff “to rebut this facially
dispositive showing by pointing to evidence which nonetheless raises a
rational inference that intentional discrimination occurred.” (Ibid.; id. at
p. 360.)
II.
Analysis
Chevron contends it was entitled to summary judgment because, first,
it demonstrated that Colborn could not make a prima facie showing of
7 The court did not resolve an issue that has divided the appellate
courts, which is whether a plaintiff is required to demonstrate a prima facie
case “at the outset” or only after the moving defendant has made a showing
that the plaintiff cannot establish one or more elements of her prima facie
case or meet its burden under the second prong of McDonnell Douglas by
showing its action was based on legitimate, nondiscriminatory factors. (See
Guz, supra, 24 Cal.4th at pp. 356-357.) The defendant in Guz had made both
the first prong and second prong showings, and thus the burden had
unquestionably shifted to the plaintiff in that case. We need not resolve this
issue here either because of the nature of Chevron’s argument.
19
retaliation under FEHA and, second, even if Colborn could make such a
showing, Chevron met its burden to establish a legitimate non-retaliatory
reason for terminating her employment, which Colborn did not effectively
rebut.
Colborn argues she met her prima facie burden by showing a temporal
proximity between her engagement in protected activity and Chevron’s
adverse actions. She further contends that she raised triable issues of fact
regarding whether Chevron had lawful reasons for the adverse actions it took
and whether Chevron’s purported reasons are pretextual or unworthy of
credence.
More specifically, Colborn contends that she showed she had engaged
in two types of protected activity: “complaining” and “refusing to participate
in” what she believed was age discrimination. First, Colborn asserted in
opposition to summary judgment, for the first time, that she informed Souza
in June 2009 and April 2010, and Howisey in November 2010, that she had
filed an intake questionnaire with the EEOC before coming to work for
CBRES. Colborn argued her filing of that questionnaire constituted a
“complaint” that raised a triable issue as to whether Chevron retaliated
against her for this “complaining” to the EEOC by giving her a negative
review and/or firing her. As we will discuss, Colborn’s reliance on this theory
was improper because it was beyond the bounds of the FAC and was based on
evidence to which Chevron objected and that the trial court properly
excluded.
Second, Colborn argued two theories of retaliation for protected activity
that were referred to in the FAC. First, she asserted that her refusal to
engage in age discrimination against Reich led Souza and Howisey to fire
her. Second, she asserted that her threat to Souza and Howisey on March 9,
20
2011, that she had filed or intended to file an EEOC complaint also
constituted a “complaint” that led them to fire her in retaliation.
A. Colborn’s Improperly Asserted Retaliation Theory
In its order granting summary judgment, the trial court sustained
Chevron’s objections to the portions of Colborn’s declaration that referred to
her having told Souza and Howisey she had filed an intake questionnaire
with the EEOC in 2009 before she came to work at CBRES.8 The court
concluded this evidence was irrelevant because Colborn’s FAC did not allege
that Chevron retaliated against her for filing the intake questionnaire. The
court rejected her theory of retaliation based on the 2009 questionnaire for
that and other reasons.
The trial court was correct to reject this theory of protected activity. It
is well established that “ ‘[t]he pleadings delimit the issues to be considered
on a motion for summary judgment. [Citation.]’ [Citation.] Thus, a
‘defendant moving for summary judgment need address only the issues raised
by the complaint; the plaintiff cannot bring up new, unpleaded issues in his
or her opposing papers.’ [Citation.] ‘To create a triable issue of material fact,
the opposition evidence must be directed to issues raised by the pleadings.
[Citation.] If the opposing party’s evidence would show some factual
assertion, legal theory, defense or claim not yet pleaded, that party should
seek leave to amend the pleadings before the hearing on the summary
judgment motion. [Citations.]’ [Citation.] . . . [Plaintiff’s] separate
statement of material facts is not a substitute for an amendment of the
complaint.’ ” (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1253.)
8 The record contains no written response to Chevron’s objections, nor
a transcript of the summary judgment hearing at which such objections
might have been discussed.
21
Colborn concedes that she did not “specifically allege in her [FAC] any
facts concerning the 2009 EEOC intake questionnaire,” but asserts that she
testified in her deposition about informing Mr. Souza or Mr. Howisey in
June 2009, April 2010 and November 2010 that she had contacted the EEOC.
She contends the standard for whether a court should consider a theory
presented at summary judgment, rather than being based on what is alleged
in a complaint, is “whether such a particular theory or defense is one that the
opposing party could have reasonably anticipated would be pursued, and
whether a request for leave to amend accordingly would likely have been
granted.” Colborn relies on a liberal framework applied in FPI Development,
Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 385 and Howard v. Omni
Hotels Management Corp. (2012) 203 Cal.App.4th 403. But even that
framework requires that a pleading give the opposing party at least minimal
notice of the theory asserted. (See FPI, at p. 385; Howard, at p. 422.) Here,
the complaint did not give even minimal notice that Colborn was asserting
any claim that Souza retaliated against her because of statements she made
in 2009 and 2010 that she had filed an intake questionnaire with the EEOC
in 2009 before she came to work for CBRES. The complaint simply does not
allege that Colborn filed such a questionnaire or that she made any
statements about a 2009 questionnaire to anyone at Chevron.9
9 Colborn filed a request for judicial notice with this court seeking to
introduce deposition excerpts of testimony by her that she discussed the 2009
EEOC questionnaire. Chevron did not initially oppose the request and,
under the misimpression that the excerpts had been submitted to the trial
court and inadvertently omitted from the record on appeal, we granted it.
Chevron opposes the request in its respondent’s brief and makes clear the
excerpts were never submitted to the trial court. We therefore reconsider the
request for judicial notice, sua sponte, and deny it. But even if we considered
these excerpts, the outcome would be no different in the absence of any legal
authority to support Colborn’s legal argument.
22
The FAC does allege Colborn had two contacts with the EEOC, on
March 8 and March 11, 2011.10 These alleged contacts related to an intake
questionnaire and complaint Colborn filed with the EEOC in 2011, and are
coupled with the further allegations that Chevron “retaliated against her
for . . . complaining about unlawful discrimination on the basis of age.” They
were (contrary to Chevron’s argument) sufficient to put Chevron on notice
that Colborn was basing her retaliation claims in part on her having stated
that she filed or would file an EEOC complaint in 2011. However, these
allegations about 2011 did not so much as hint that Colborn’s retaliation
claim was based on comments she purportedly made to Souza and/or Howisey
in 2009 and 2010 about an EEOC questionnaire she submitted sometime
early in 2009 when she worked for a different department of Chevron. The
FAC alleges that “the real reason for [Colborn’s] termination was her refusal
to change her performance review of another employee, (Terry Reich) which
she reasonably believed it was discriminatory [sic]—based upon that
employee’s age rather than his performance.” The 2009 intake questionnaire
Colborn referred to for the first time in opposition to summary judgment was,
by her own characterization, made because of what Colborn considered “a
forced relocation to Houston,” an issue she “thought was closed because of the
appointment to the new position” at CBRES. It did not relate to any alleged
age discrimination against Reich, and thus had nothing to do with the
retaliation claim alleged in the FAC.
In short, the trial court was correct to reject Colborn’s intake
questionnaire retaliation theory (and her related evidentiary submissions) on
the ground that it was beyond the scope of the FAC.
10The FAC also alleges, presumably to show Colborn exhausted her
administrative remedies, that she filed a complaint with the Department of
Fair Housing and Employment in September 2011.
23
B. Colborn’s Properly Asserted Retaliation Theories
We turn now to the theories that are encompassed by the FAC and,
therefore, were properly asserted by Colborn in opposition to Chevron’s
summary judgment motion, namely her age discrimination and 2011 EEOC
complaint retaliation theories.
1. Colborn’s Age Discrimination Retaliation Theory
Regarding Colborn’s age discrimination retaliation theory, Chevron
claims Colborn cannot establish the required causal link element of her
prima facie case because “the evidence is undisputed that [Chevron] was
unaware that [Colborn] allegedly engaged in any protected activity.” As
Chevron points out and our high court has instructed, “[s]tanding alone, an
employee’s unarticulated belief that an employer is engaging in
discrimination will not suffice to establish protected conduct for the purposes
of establishing a prima facie case of retaliation, where there is no evidence
the employer knew that the employee’s opposition was based upon a
reasonable belief that the employer was engaging in discrimination.”
(Yanowitz, supra, 36 Cal.4th at p. 1046.)
We agree that Chevron has shown Colborn cannot establish the
requisite causal element of her age discrimination retaliation claim. Chevron
showed Colborn did not inform Souza, Howisey or anyone else at Chevron,
prior to her termination, that she believed Reich had been rated a “3”
unfairly because of his age or even that she formed an opinion that they were
engaging in age discrimination against Reich. Rather, her claim appears to
be that her failing to put Reich on a PIP as directed, explain adequately the
bases for his rating, and meet with Souza and Howisey to discuss these
matters constituted protected activity because she took these acts as part of
24
her opposition to age discrimination against Reich.11 However, the causal
link between these activities and her termination is missing because there is
no evidence suggesting Souza, Howisey or anyone else at Chevron knew or
should have known these actions were an attempt by Colborn to oppose what
she believed was discriminatory conduct. Thus, Chevron has met its first
prong burden of showing Colborn cannot make out a prima facie case on this
theory.
Colborn fails to rebut Chevron’s showing with evidence of a triable
issue of fact on the causal link element. Colborn does not even establish that
she had a good faith belief that Reich’s rating was based on age
discrimination, much less that she somehow communicated such a belief to
Chevron.12 Her declaration states only that she believed his rating was
“unfair,” and does not state that she ever communicated even this much to
11 Chevron correctly argues that there is no direct evidence that
anyone asked Colborn to change Reich’s rating. However, we read the FAC
and Colborn’s summary judgment papers liberally to mean that her refusal to
provide reasons to explain or justify Reich’s final performance ranking of “3,”
refusal to put Reich on the PIP and refusal to meet with Souza and Howisey
constituted the protected activity of refusing to “participate in what she
believed was illegal discrimination based on age.”
12 This case thus is unlike Yanowitz, in which the court held the
evidence was sufficient to support a finding that by repeatedly refusing to
implement a blatantly improper directive to fire a dark-skinned sales
associate and replace her with a lighter-skinned blonde unless, she insisted,
her superior provided “ ‘adequate justification,’ ” the plaintiff “sufficiently
conveyed to [her superior] that she considered the order to be discriminatory
and put him on notice that he should reconsider the order because of its
apparent discriminatory nature.” (Yanowitz, supra, 36 Cal.4th at p. 1048.)
There is no evidence here that Souza or Howisey engaged in such blatant or
obvious age discrimination against Reich or that Colborn’s failures to comply
with their directives communicated that she was objecting to such
discrimination.
25
Souza or Howisey.13 She argues that “[a]n employee is not required to use
legal terms or buzzwords when opposing discrimination; opposition activity
occurs if the employee’s comments, when read in their totality, oppose
discrimination.” This is an accurate statement of the law. (Yanowitz, supra,
36 Cal.4th at p. 1047.) Nonetheless, an employee must say or do something
that alerts the employer she has a concern about discrimination. As our high
court put it in Yanowitz, “complaints about personal grievances or vague or
conclusory remarks that fail to put an employer on notice as to what conduct
it should investigate will not suffice to establish protected conduct.” (Ibid.)
“ ‘The relevant question . . . is . . . whether the employee’s communications to
the employer sufficiently convey the employee’s reasonable concerns that the
employer has acted or is acting in an unlawful discriminatory manner.’ ” (Id.
at p. 1047, quoting Garcia-Paz v. Swift Textiles, Inc. (D. Kan. 1995)
873 F.Supp. 547, 560.)
On this record, a jury could not properly find that an employer in
Chevron’s shoes reasonably could have been expected to understand, based
on Colborn’s behavior and the circumstances, that she was opposing what she
thought was age (or any other type of) discrimination against Reich. To be
sure, Souza and Howisey could see that Colborn was reluctant to provide
more feedback to Reich regarding his rating and to place him on a PIP, and
13 Colborn also states that after she returned from vacation and
received Reich’s STEPS paperwork in which he mentioned possible
discrimination, she “was concerned about [his] final rating and his belief that
he was being discriminated against based on age.” (Italics added.) She does
not state that she believed that was the case, and when asked whether she
ever thought Reich’s rating was a “3” “because of his age and for no other
reason,” she said she did not recall. When asked whether she ever expressed
to anyone at Chevron “that you believed the real reason Mr. Reich was given
a three instead of a two-minus was because of his age,” again she responded,
“I don’t recall.”
26
they witnessed her unwillingness to discuss Reich’s rating with them in
person. But without additional information, the question of why she did
what she did was something about which they could only have speculated.
Absent any explanation by Colborn of the reasons for her conduct, her
superiors were presented with a riddle or a conundrum, not with a
recognizable expression of concern about discrimination against Reich. (See
Garcia-Paz v. Swift Textiles, Inc., supra, 873 F.Supp. at p. 560 [“employers
need not approach every employee’s comment as a riddle, puzzling over the
possibility that it contains a cloaked complaint of discrimination”]; quoted
with approval in Yanowitz, supra, 36 Cal.4th at p. 1047.) Further, it was a
puzzle they could not definitively solve because she would not talk with
them.14
Colborn also contends that the temporal proximity between her
“protected activity” on March 9, 2011, and her termination on March 10,
2011, suffices to establish a causal link between the two. But, as we have
just indicated, nothing about her behavior on March 9 or before explicitly or
implicitly alerted Chevron that she was engaged in, as she puts it, a “subtle
and indirect means of opposing what she reasonably understood to be
Chevron’s discrimination directed at Mr. Reich.”
For these reasons, Colborn has failed to rebut Chevron’s showing that
she cannot establish a causal link between her purportedly resisting
participating in age discrimination and her termination. Chevron was thus
entitled to summary judgment on this theory.
14 Indeed, Colborn’s superiors could have reasonably thought her
conduct was due to several plausible reasons that reflected poorly on her,
such as her possible anger about her own negative performance rating and
concern about its impact on her future at Chevron; her desire to move to
another position within Chevron; her insufficient feedback to Reich during
the year leading up to the rating; and her stated willingness to let him fail.
27
2. Colborn’s 2011 EEOC Complaint Retaliation Theory
The second retaliation theory encompassed by Colborn’s FAC is that
when Souza and Howisey were outside her office in the hallway after their
dispute arose, she told them “they were retaliating and that [she] was going
to contact the EEOC.” Chevron denies Colborn said anything about
contacting the EEOC, but as the non-moving party, Colborn is entitled to
have us accept her evidence as true for purposes of summary judgment.
Colborn contends that filing or threatening to file a complaint with the
EEOC was protected activity and that it was because she engaged in this
activity that Chevron terminated her employment. To establish the requisite
causal link, she points to the facts that she threatened to contact the EEOC
on March 9, 2011, and was terminated the following day. This theory and the
evidence supporting it are sufficient to meet Colborn’s required prima facie
showing under the first prong of McDonnell Douglass, a causal link between
protected activity and an adverse employment action. Therefore, we turn to
whether Chevron met its burden under the second prong of McDonnell
Douglass of showing a legitimate reason for its adverse action, thereby
shifting the burden back to Colborn to make a third prong showing.
a. Chevron Showed a Legitimate Reason for
Terminating Colborn’s Employment.
To rebut the presumption of retaliation that arises from Colborn’s
prima facie showing on her 2011 EEOC complaint retaliation theory,
Chevron had the burden to produce evidence showing it acted, i.e., it
terminated Colborn’s employment, for a legitimate, nonretaliatory reason.
According to Chevron, “the sole basis for [Colborn’s] termination was her
recalcitrant behavior in repeatedly refusing to meet with her supervisor (and
[Human Resources]) to discuss an issue as common and important as a
subordinate’s performance.”
28
We need not recount the evidence again in detail. Suffice it to say that
it is undisputed that Colborn rebuffed in words and deeds repeated efforts on
Souza’s and Howisey’s parts to meet in person with her on March 9, 2011.
She said she would not meet with Souza without a written agenda, and she
told them she had sent them what they needed, that they had everything
they needed from her and that they could comment in writing. She intended
to convey to them that she did not feel it was necessary to meet, and she
failed to confirm she would meet them in her responses to the three emails
they sent attempting to set up a meeting with her. She does not dispute that,
when they showed up outside her office, she kept them from entering and
spoke to them only “in the hallway.” As the trial court aptly put it, “In this
email exchange, [Colborn] did not use the words ‘I refuse to meet with you.’
But the exchange can only be interpreted as a stubborn and startlingly
brazen refusal to meet, despite three unambiguous requests for a meeting
from both [Colborn’s] supervisor and a senior member of the Human
Resources Department.”15
We agree. Colborn made perfectly clear by her words and acts that she
was not willing to meet with Souza or Howisey. And she did so even though
she understood Souza was insisting on meeting with her, Howisey instructed
her that she had to meet with Souza, and Howisey warned her she would be
insubordinate if she did not meet with them. Instead of complying with
Souza’s and Howisey’s requests and directives, Colborn told Howisey “to
document it, to write [her] up.”
Further, as Souza described it in her declaration in support of
Chevron’s summary judgment motion, she viewed Colborn’s conduct as a
15In her declaration, Souza described Howisey as a “Human Resources
Business Partner.”
29
manager as “completely inappropriate, unprofessional, and insubordinate.
Even if Ms. Colborn was trying to avoid delivering a difficult message to
Mr. Reich about his performance, it was her responsibility as his manager to
do so and to help Mr. Reich understand how he could improve. And, if
Ms. Colborn was unclear about feedback on Mr. Reich, she needed to talk
with me or with others who were present during ranking sessions when
Mr. Reich was ultimately rated a ‘3.’ It seemed that, as Ms. Colborn had told
me earlier in 2010, she intended to ‘let him fail,’ which was unacceptable. [¶]
Because of Ms. Colborn’s insubordination on a subject as critical as providing
feedback to a direct report, I could no longer entrust her with the critical
supervisory responsibilities of her position. I recommended that day that
Ms. Colborn’s employment be terminated and the decision was supported by
Human Resources. I genuinely felt that separation was the only logical and
responsible consequence for Ms. Colborn’s insubordinate behavior.” Souza
further stated in her declaration that “Ms. Colborn’s termination was based
solely on her insubordinate and unacceptable behavior.”
This evidence is more than sufficient to meet Chevron’s burden of
showing a legitimate, nonretaliatory reason for the termination. (Faust v.
California Portland Cement Co. (2007) 150 Cal.App.4th 864, 874, 875
[evidence that plaintiff failed to communicate with defendant regarding
requested medical leave and failed to respond to defendant’s requests for
information about his condition and fitness to work was insubordination that
constituted legitimate, non-retaliatory reason for terminating plaintiff’s
employment].) As in Guz, Chevron’s explanation of its nondiscriminatory
reason for terminating Colborn’s employment was “creditable on its face” and
Colborn “has largely conceded the truth, if not the wisdom, of [Chevron’s]
proffered reasons.” (See Guz, supra, 24 Cal.4th at p. 357.)
30
“If the employer produces a legitimate reason for the adverse
employment action, the presumption of retaliation ‘drops out of the picture,’
and the burden shifts back to the employee to prove intentional retaliation.”
(Yanowitz, supra, 36 Cal.4th at p. 1042.) We turn to whether Colborn has
met this third prong burden on her 2011 EEOC complaint retaliation theory.
b. Colborn Did Not Meet Her Third Prong Burden.
In evaluating a third prong showing we determine whether the
evidence in its entirety proves “by nonspeculative evidence, ‘an actual causal
link between prohibited motivation and termination.’ ” (Featherstone v.
Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150,
1159 (Featherstone), quoting King v. United Parcel Service, Inc. (2007)
152 Cal.App.4th 426, 433-434.) As we have observed, “very little” direct
evidence of an employer’s discriminatory motive is necessary, but
“[c]ircumstantial evidence of ‘ “pretense” must be “specific” and “substantial”
in order to create a triable issue with respect to whether the employer
intended to discriminate’ [or retaliate] on an improper basis.” (Morgan,
supra, 88 Cal.App.4th at p. 69.)
Also, as we will discuss, Colborn relies on certain remarks by Souza
and Howisey. In that context, particularly pertinent is our Supreme Court’s
directive that remarks of a discriminatory or retaliatory nature cannot be
categorically excluded based on the court’s assessment of their relative
strength or probative value viewed in isolation, but rather should be
considered in combination with all the evidence set forth in the papers and
all inferences that reasonably can be deduced from that evidence. (Reid v.
Google, Inc. (2010) 50 Cal.4th 512, 538-545.) Thus, we consider the relevance
of any such remarks in the context of the entire record.
31
Colborn’s briefs are not particularly helpful in identifying the evidence
she relied on for her 2011 EEOC complaint retaliation theory because she
relied on the following to show retaliatory motive without assigning any of
these facts to one or the other of her different theories: Souza’s “remarks in
meetings in which [Colborn] was present” “[s]tarting around November 2009”
“about employees filing with the EEOC” without “mention[ing] any names”;
Howisey’s statements to Colborn that her comments on Reich’s STEPS
document were “sad” and that she was “being insubordinate”; a “remark”
made by Souza “[a]t the beginning of 2010” “about employees nearing
retirement”; and a “remark” made by Howisey “[a]t some point in 2011 before
March 9,” “about Mr. Reich not keeping up with his peers and that Mr. Reich
should retire or leave.”
Of these four remarks, the first is the only one has anything to do with
her theory that Chevron retaliated because she said on March 9, 2011, that
she had filed or would file a claim with the EEOC.16 And as we see it, the
other evidence that pertains to her 2011 EEOC complaint retaliation theory
is that, at the end of the March 9, 2011 interchange between Colborn and her
superiors, after she was told that refusing to meet was insubordinate, she
accused them of engaging in “retaliation” and threatened to file a complaint
with the EEOC. The temporal proximity between her statements about the
EEOC and her termination the very next day, she contends, supports a
finding that she was terminated because of her statements about filing an
EEOC claim. This, we have already held, suffices as a prima facie showing,
but the inquiry now is whether, in light of Chevron’s effective rebuttal, the
evidence as a whole, including the remarks Colborn attributes to Souza,
16 The other three are pertinent, if at all, to her age discrimination
retaliation theory, for which we have concluded she cannot make out a prima
facie case.
32
raises a triable issue as to the retaliatory motive Colborn asserts. It is at
best extremely weak evidence that Chevron fired her because of her
statement that she had filed or would file an EEOC complaint. Again, all
Colborn’s declaration says is that Souza made unspecified “remarks in
meetings in which [Colborn] was present” “[s]tarting around November 2009”
“about employees filing with the EEOC” without “mention[ing] any names.”
She does not state what the remarks were or even whether they reflected
negatively on people who file such complaints. The comments were not
directed to Colborn or anyone else in particular, and Colborn provides no
context at all for the comments. The only time frame she gives for the
comments is that they were first made in November 2009, long before her
March 2011 termination. In short, there no evidence that the unspecified
remarks were negative or that they had anything to do with Colborn, and
there is no showing any such remarks were made close in time to Colborn’s
termination.
Even without considering Chevron’s evidence of its nonretaliatory basis
for firing her, these comments provide no reasonable basis for inferring
animus on Souza’s part toward Colborn or any other employee who had filed
or might in the future file a claim with the EEOC. The fact that Colborn told
Souza and Howisey she had filed or would file an EEOC complaint on
March 9, 2011—at the end of a day on which she had repeatedly rebuffed
their requests to meet with her after she had deliberately declined to follow
their directives regarding Reich’s performance review and PIP, after they told
her that a continued failure to meet would be considered insubordinate, and
after she told them “just to write [her] up”—itself is weak evidence of a
retaliatory motive. The addition of the earlier unspecified “remarks” about
unidentified employees having filed EEOC claims does not transmute
33
Colborn’s already weak showing into a triable issue of retaliatory motive.
(See Morgan, supra, 88 Cal.App.4th at p. 69 [circumstantial evidence of
pretense must be specific and substantial to create triable issue of prohibited
motive].)
In Guz, the court held that where the employee’s “evidence raise[s], at
best, only a weak suspicion that discrimination was a likely basis for his
release” and the employer “has presented a plausible, and largely
uncontradicted, explanation” of its nondiscriminatory reason for the
termination, the employee has failed as a matter of law to raise a triable
issue of pretext and the employer is entitled to summary judgment. (Guz,
supra, 24 Cal.4th at pp. 369-370.) That is precisely the situation here.
C. Colborn’s Claim for Failure to Prevent Retaliation
Colborn’s second cause of action, under Government Code section 12940,
subdivision (k), alleges Chevron failed to take reasonable steps to prevent the
alleged discrimination and retaliation against Colborn. A plaintiff cannot
prevail on a claim for failure to prevent retaliation unless the plaintiff first
establishes that retaliation occurred. (M.F. v. Pacific Pearl Hotel
Management LLC (2017) 16 Cal.App.5th 693, 701; Featherstone, supra,
10 Cal.App.5th at p. 1166; Trujillo v. North County Transit Dist. (1998)
63 Cal.App.4th 280, 288-289.) Having affirmed the grant of summary
judgment to Chevron on Colborn’s underlying retaliation claim, we must also
affirm summary judgment on her claim for failure to prevent retaliation.
DISPOSITION
The judgment is affirmed. Chevron shall recover its costs.
34
STEWART, J.
We concur.
KLINE, P.J.
MILLER, J.
Colborn v. Chevron USA, Inc. (A159040)
35