Arce v. Wal-Mart Associates CA2/3

Filed 6/22/21 Arce v. Wal-Mart Associates CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has
not been certified for publication or ordered published for purposes of rule 8.1115(a).

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

MARIO ARCE, B302349

Plaintiff and Appellant, Los Angeles County
Super. Ct. No. BC676531
v.

WAL-MART ASSOCIATES, INC.
et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Steven J. Kleifield, Judge. Affirmed.
Alexander Morrison + Fehr, Tracy L. Fehr; Panitz Law
Group, Eric A. Panitz; and Irma L. Martinez for Plaintiff and
Appellant.
LTL Attorneys, David W. Ammons and Tiffany S. Hansen
for Defendants and Respondents.
_______________________________________
 INTRODUCTION

Plaintiff and appellant Mario Arce (plaintiff) brought the
present action against his former employer, Wal-Mart Associates,
Inc. (Wal-Mart), and his former supervisor, William Guaracha,
alleging mainly that the company terminated his employment
because of a physical disability in violation of the Fair
Employment and Housing Act (FEHA) (Gov. Code, § 12940 et
seq.).1 Plaintiff also asserted claims for failure to engage in the
interactive process, failure to accommodate disability, retaliation,
age-based harassment, and wrongful employment termination in
violation of public policy.
Wal-Mart moved for summary judgment and/or summary
adjudication and presented evidence that it terminated plaintiff’s
employment for a legitimate, nondiscriminatory reason, i.e., he
violated company policies and procedures on four occasions
within one year. As to plaintiff’s disability-related claims, the
trial court concluded plaintiff failed to present evidence that Wal-
Mart’s proffered rationale was either false or a pretext designed
to conceal discriminatory animus. The court also concluded that
no triable issues of material fact existed as to plaintiff’s
remaining claims. The court entered judgment in favor of Wal-
Mart and plaintiff appeals. We affirm the judgment.

1All undesignated statutory references are to the Government Code.
At times, we refer to Wal-Mart and Guaracha collectively as Wal-Mart.

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 FACTS AND PROCEDURAL BACKGROUND

1. Plaintiff’s Employment and Discipline Record
Wal-Mart has a “coaching for improvement” policy by which
Wal-Mart notifies an employee of a performance issue in writing
and instructs the employee regarding proper job performance.
The coaching policy provides that an employee is subject to
employment termination if the employee receives three written
levels of coaching and then receives a fourth written level of
coaching within the 12-month period following the third coaching.
Plaintiff worked for Wal-Mart from 2003 to late 2016 as a
meat cutter. He violated Wal-Mart policies and procedures on
four occasions between January 2016 and December 2016. First,
in January 2016, plaintiff violated Wal-Mart’s meal and rest
break policy by failing to take his legally mandated lunch break
before the fifth hour of his shift. He received a written level of
coaching in May 2016 relating to this violation and agreed to
“make sure to take [his] lunch before [his] 5th hour.” Plaintiff
repeated the meal break violation less than a month later, in
June 2016. He again received a written coaching and agreed to
“take lunch on the 4th hour from now on.” Plaintiff received a
third written coaching on November 7, 2016, purportedly because
he failed to remove expired food products from the sales floor
during his opening shift. He agreed to “pay more attention to
checking the dates item by item.” The third coaching record
indicated that the next level of action to be taken if plaintiff’s
performance issues continued was employment termination.
Finally, as explained in greater detail below, plaintiff received a
fourth write-up after he failed to timely report his workplace
injury as required. As this fourth coaching occurred less than a
month after his third coaching, plaintiff was eligible for

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employment termination under Wal-Mart’s “coaching for
improvement” policy.
2. Age-related Comments in the Workplace
Guaracha, plaintiff’s supervisor in the meat department,
frequently called plaintiff “hombre viejo,” meaning “old man”
when translated from Spanish to English, over the course of
approximately two years. Plaintiff thought Guaracha used the
name in a joking manner and also to be unkind. Although
plaintiff said the name-calling made him feel “bad,” he did not
bring the issue to a supervisor’s attention until October 2016,
nearly two years after the conduct began. And even then, plaintiff
did not want the supervisor to take any action to stop Guaracha’s
behavior. In explaining his delay in reporting Guaracha’s
behavior, plaintiff said he “didn’t have the chance” to do so
earlier. Plaintiff also admitted Guaracha’s behavior did not affect
his ability to perform his job and did not ever require him to take
time off work.
3. Plaintiff’s Injury and Workers’ Compensation Claim
On November 30, 2016, Wal-Mart received a notice that
plaintiff had filed a workers’ compensation claim. The notice
indicated that plaintiff claimed his job caused repetitive stress
injury in his wrists. In addition, the notice stated that the injury
began two years earlier, in November 2014. Plaintiff filed the
workers’ compensation claim in mid-November 2016, shortly
after he received his third written coaching. He had not seen a
doctor regarding the condition at that point, nor had he disclosed
his condition to anyone at Wal-Mart.
Plaintiff’s department manager, William Ramirez, became
aware of the claim on November 30, 2016. The next day, on

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December 1, 2016, Ramirez took plaintiff to a medical clinic so
that a physician could assess plaintiff’s injuries and determine
appropriate work restrictions. The assessment stated that
plaintiff should be placed on a “modified work” schedule for one
week but did not indicate that plaintiff should take time off work.
The assessment also recommended that plaintiff limit his use of
his right hand and wrist, refrain from pushing, pulling, and
lifting more than 15 pounds, and take a five-minute stretch break
after every hour of work.
When plaintiff returned from his visit to the medical clinic,
he was reassigned to work at the gas station—a position that
accommodated his work restrictions. Plaintiff worked at that new
job assignment for one day, on December 2, 2016. At the end of
plaintiff’s workday, Wal-Mart terminated plaintiff’s employment
because he failed to report his workplace injury within 24 hours,
as required.
4. The Litigation
In September 2017, plaintiff filed a complaint against Wal-
Mart asserting causes of action for disability discrimination
(§ 12940, subd. (a)), failure to accommodate disability (§ 12940,
subd. (m)), failure to engage in the interactive process (§ 12940,
subd. (n)), age-based harassment (§ 12940, subd. (j)(1)),
retaliation (§ 12940, subd. (h)), and failure to take reasonable
steps to prevent harassment and discrimination (§ 12940,
subd. (k)). Plaintiff also named Guaracha as a defendant in the
harassment claim. In addition, plaintiff claimed Wal-Mart
interfered with his right to medical leave under the California

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Family Rights Act (§ 12945.2, subd. (t))2 and that his employment
termination violated public policy. Plaintiff alleged he developed
work-induced chronic stress injuries to his hand, wrist, right
elbow, and upper back that resulted in permanent disability.3 He
further alleged that Wal-Mart discriminated against him due to
his disability and failed to engage in the interactive process. In
addition, plaintiff contended Wal-Mart retaliated against him
due to his request for disability accommodation, his request to
take time off in order to have surgery, and his complaints about
age-based harassment. Plaintiff sought a minimum of $100,000
in damages, job reinstatement, and punitive damages.4
Wal-Mart’s answer to the complaint generally denied
plaintiff’s allegations and asserted a range of affirmative
defenses.

2 Although the court granted summary adjudication on plaintiff’s
medical leave claim, he has not addressed that claim in this appeal.
Accordingly, we do not discuss the claim further. (See, e.g., Cahill v.
San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956
[“ ‘ “When an appellant fails to raise a point, or asserts it but fails to
support it with reasoned argument and citations to authority, we treat
the point as waived.” ’ ”].)
3No evidence in the appellate record supports plaintiff’s assertion that
he is permanently disabled. The parties did not litigate that issue
below, however, and we therefore assume for the sake of argument
that plaintiff’s injury qualifies as a disability under FEHA.
4Because we conclude summary judgment was properly granted, we
need not (and do not) address the issue of damages.

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5. Summary Judgment Proceedings
5.1. Wal-Mart’s Motion for Summary Judgment and/or
Summary Adjudication
In late 2018, Wal-Mart filed a motion for summary
judgment and/or summary adjudication of all causes of action.
Mainly, Wal-Mart asserted that it terminated plaintiff’s
employment after plaintiff violated company policies and
procedures on four occasions in less than 12 months. Because it
had a legitimate and nondiscriminatory reason for plaintiff’s
employment termination, Wal-Mart argued, plaintiff’s disability-
related claims (discrimination, wrongful termination in violation
of public policy, failure to prevent discrimination, and retaliation)
failed as a matter of law. As to plaintiff’s claims that Wal-Mart
failed to engage in the interactive process and to accommodate
his disability, Wal-Mart noted that once it learned of plaintiff’s
disability, it reassigned him to a different job that accommodated
his work restrictions.
With respect to plaintiff’s age-related harassment and
retaliation claims, Wal-Mart and Guaracha acknowledged that
Guaracha frequently called plaintiff “hombre viejo,” meaning “old
man.” But they argued the age-related comments were not severe
or pervasive enough to constitute harassment, as demonstrated
by the fact that plaintiff waited for two years before reporting the
issue and, even then, did not want a supervisor to intervene.
Finally, Wal-Mart asserted that plaintiff’s claim for punitive
damages failed as a matter of law because even if any unlawful
conduct had occurred, there was no evidence that any corporate
officer, director, or managing agent was involved.

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 5.2. Plaintiff’s Opposition
With respect to his disability-related claims, plaintiff
argued that Wal-Mart’s asserted reason for his employment
termination was pretextual. He repeatedly emphasized the
temporal proximity between the time Wal-Mart learned of his
workers’ compensation claim and disability (November 30) and
the date Wal-Mart terminated his employment (December 2).
Plaintiff also presented evidence that he had received several
positive performance reviews during his employment at Wal-
Mart, most recently in August 2016. In addition, plaintiff argued
that the 24-hour injury reporting requirement cited as the basis
for his employment termination did not exist. He claimed his
supervisor targeted him for employment termination because his
production had decreased recently—an issue he asserted was
caused by his disability.
Regarding the harassment claim, plaintiff noted Wal-Mart
failed to investigate the harassment complaint he made in
October 2016, in violation of its own policy. And it was
undisputed that Guaracha had harassed plaintiff for
approximately two years. Finally, and regarding his retaliation
claim, plaintiff argued he engaged in two forms of protected
activity—filing a workers’ compensation claim and reporting
harassment in the workplace—and was fired shortly thereafter,
leading to an inference of retaliatory conduct by Wal-Mart.
5.3. Wal-Mart’s Reply
Wal-Mart acknowledged that its policy required employees
to report workplace injuries “immediately” rather than “within 24
hours” as it originally contended and as stated on plaintiff’s
separation form. Nevertheless, Wal-Mart asserted that plaintiff

8
failed to offer any evidence that Wal-Mart’s legitimate and
nondiscriminatory explanation for his employment termination
was pretextual. And, Wal-Mart noted, temporal proximity
between the adverse employment action and discovery of
plaintiff’s disability was insufficient to establish pretext.
With respect to plaintiff’s nondisability claims, Wal-Mart
reiterated its prior arguments.
6. Summary Judgment Ruling
The court issued a thorough and well-reasoned order
granting summary judgment in favor of Wal-Mart on July 25,
2019.
With respect to plaintiff’s disability discrimination claim
(§ 12940, subd. (a)), the court found plaintiff had a history of poor
job performance, as evidenced by plaintiff’s multiple policy
violations during 2016, that caused Wal-Mart to terminate his
employment. The burden of proof then shifted to plaintiff to offer
evidence of pretext, but plaintiff failed to offer anything other
than temporal proximity between the date Wal-Mart learned of
his disability and the date it terminated his employment. The
court noted that such evidence may be sufficient to establish a
prima facie case of pretext but is generally insufficient, standing
alone, to create a triable issue of material fact on that issue. And
because plaintiff’s disability discrimination claim failed, his
dependent claims of wrongful termination in violation of public
policy and failure to take reasonable steps to prevent disability
discrimination also failed as a matter of law. Plaintiff’s claim for
retaliation based on disability failed for the same reason—
plaintiff’s inability to establish that he was fired for an
illegitimate, pretextual reason.

9
 The court also found Wal-Mart had engaged in the
interactive process and accommodated plaintiff’s physical
limitations. Specifically, it was undisputed that the day after one
of plaintiff’s supervisors became aware of plaintiff’s injury, he
took plaintiff to a clinic for a medical evaluation. When plaintiff
returned to work, he was assigned to a different, lighter duty job
that conformed to the clinic’s suggested duty modifications.
Accordingly, the court found Wal-Mart was entitled to summary
adjudication on those two claims.
As to plaintiff’s age-based harassment claim, the court
noted that in order to be actionable, the harassment must be
severe, i.e., the workplace must be “permeated with
‘discriminatory intimidation, ridicule and insult that is
sufficiently severe or pervasive to alter the conditions of the
victim’s employment and create an abusive working
environment.’ ” But plaintiff admitted that although Guaracha’s
name-calling made him feel “bad,” it did not impact his work at
all. For that reason, the court concluded the harassment did not
rise to an actionable level and Wal-Mart was therefore entitled to
summary adjudication on the harassment claim as well as the
dependent claim for failure to take reasonable steps to prevent
harassment.
Because the court found that summary adjudication was
appropriate on each of plaintiff’s causes of action, the court
granted Wal-Mart’s motion for summary judgment.
7. Entry of Judgment and Appeal
The court entered judgment in favor of Wal-Mart on
September 6, 2019. Plaintiff timely appeals.

10
 DISCUSSION

Plaintiff challenges the court’s summary adjudication of
each of his claims. We address his arguments in turn and
conclude the court’s rulings are sound.
1. Standard of Review
“The purpose of the law of summary judgment is to provide
courts with a mechanism to cut through the parties’ pleadings in
order to determine whether, despite their allegations, trial is in
fact necessary to resolve their dispute.” (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 843.) The moving party
“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.” (Id. at p. 850; Code Civ. Proc., § 437c, subd. (c).) The
pleadings determine the issues to be addressed by a summary
judgment motion. (Metromedia, Inc. v. City of San Diego (1980)
26 Cal.3d 848, 885, reversed on other grounds by Metromedia,
Inc. v. City of San Diego (1981) 453 U.S. 490; Nieto v. Blue Shield
of California Life & Health Ins. Co. (2010) 181 Cal.App.4th 60,
74.)
On appeal from a summary judgment, we review the record
de novo and independently determine whether triable issues of
material fact exist. (Saelzler v. Advanced Group 400 (2001) 25
Cal.4th 763, 767; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th
317, 334 (Guz).) We resolve any evidentiary doubts or ambiguities
in favor of the party opposing summary judgment. (Saelzler, at
p. 768.) “In performing an independent review of the granting of
summary judgment, we conduct the same procedure employed by
the trial court. We examine (1) the pleadings to determine the
elements of the claim, (2) the motion to determine if it establishes

11
facts justifying judgment in the moving party’s favor, and (3) the
opposition—assuming movant has met its initial burden—to
‘decide whether the opposing party has demonstrated the
existence of a triable, material fact issue.’ ” (Oakland Raiders v.
National Football League (2005) 131 Cal.App.4th 621, 630.) “We
need not defer to the trial court and are not bound by the reasons
in its summary judgment ruling; we review the ruling of the trial
court, not its rationale.” (Ibid.)
The appellant has the burden to show error, even if the
appellant did not bear the burden in the trial court, and “ ‘to
point out the triable issues the appellant claims are present by
citation to the record and any supporting authority.’ ” (Claudio v.
Regents of the University of California (2005) 134 Cal.App.4th
224, 230.)
2. The court properly granted Wal-Mart’s motion for
summary adjudication on plaintiff’s disability-related
claims.
2.1. Legal Analysis of Workplace Discrimination
Claims
“ ‘In California, courts employ at trial the three-stage test
that was established in McDonnell Douglas Corp. v. Green (1973)
411 U.S. 792, 802, to resolve discrimination claims ... . [Citation.]
At trial, the employee must first establish a prima facie case of
discrimination, showing “ ‘ “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 ... .’ ” ’ ” ’ (Reid v. Google, Inc.
(2010) 50 Cal.4th 512, 520, fn. 2 (Reid).) A prima facie claim
arises ‘when the employee shows (1) at the time of the adverse
action [he was a member of a protected class], (2) an adverse

12
employment action was taken against the employee, (3) at the
time of the adverse action the employee was satisfactorily
performing his or her job’ (Hersant v. Department of Social
Services (1997) 57 Cal.App.4th 997, 1003, fn. omitted (Hersant)),
and (4) the adverse action occurred ‘under circumstances which
give rise to an inference of unlawful discrimination.’ (Texas Dept.
of Community Affairs v. Burdine (1981) 450 U.S. 248, 253.) ‘Once
the employee satisfies this burden, there is a presumption of
discrimination, and the burden then shifts to the employer to
show that its action was motivated by legitimate,
nondiscriminatory reasons. [Citation.] A reason is “ ‘legitimate’ ”
if it is “facially unrelated to prohibited bias, and which if true,
would thus preclude a finding of discrimination.” [Citation.] If the
employer meets this burden, the employee then must show that
the employer’s reasons are pretexts for discrimination, or produce
other evidence of intentional discrimination.’ (Reid, at p. 520,
fn. 2, italics omitted.)
“In the context of a defense motion for summary judgment,
‘[a]ssuming the complaint alleges facts establishing a prima facie
case that unlawful disparate treatment occurred, the initial
burden rests on the employer (moving party) to produce
substantial evidence (1) negating an essential element of
plaintiff’s case or (2) (more commonly) showing one or more
legitimate, nondiscriminatory reasons for its action against the
plaintiff employee ... . [¶] ... The burden then shifts to the
plaintiff employee (opposing party) to rebut defendant’s showing
by producing substantial evidence that raises a rational inference
that discrimination occurred; i.e., that the employer’s stated
neutral legitimate reasons for its actions are each a “pretext” or
cover-up for unlawful discrimination, or other action contrary to

13
law or contractual obligation.’ (Chin et al., Cal. Practice Guide:
Employment Litigation (The Rutter Group 2016) ¶¶ 19:728 to
19:729, p. 19-121, italics omitted.) By applying McDonnell
Douglas’s shifting burdens of production in the context of a
motion for summary judgment, ‘ “the judge [will] determine
whether the litigants have created an issue of fact to be decided
by the jury.” ’ [Citation.]” (Nakai v. Friendship House Assn. of
American Indians, Inc. (2017) 15 Cal.App.5th 32, 38–39 (Nakai).)
2.2. Plaintiff failed to demonstrate a dispute of
material fact regarding his disability
discrimination claim.
We first address plaintiff’s cause of action for
discrimination on the basis of physical disability under
section 12940, subdivision (a) and consider each of the three
burden-shifting stages of the McDonnell Douglas test discussed
above: whether plaintiff alleged a prima facie case of
discrimination, whether Wal-Mart produced substantial evidence
that it terminated plaintiff’s employment for a legitimate,
nondiscriminatory reason, and whether plaintiff presented
substantial evidence that the stated reason for his employment
termination was pretextual and intended to conceal a
discriminatory motive.
2.2.1. Plaintiff alleged a prima facie case of
discrimination on the basis of physical
disability.
Plaintiff’s first cause of action alleges a prima facie case of
discrimination under FEHA, which prohibits an employer from
discharging a person from employment because of a physical
disability. (§ 12940, subd. (a).) Plaintiff alleged (1) he has a

14
physical disability, (2) Wal-Mart terminated his employment,
(3) he was performing his job adequately, and (4) Wal-Mart’s
explanation for his employment termination is pretextual.
2.2.2. Wal-Mart produced substantial evidence that it
terminated plaintiff’s employment for a
legitimate, non-discriminatory reason.
When an employee satisfies his or her initial burden to
make a prima facie case, “ ‘the burden then shifts to the employer
to show that its action was motivated by legitimate,
nondiscriminatory reasons. [Citation.] A reason is “ ‘legitimate’ ”
if it is “facially unrelated to prohibited bias, and which if true,
would thus preclude a finding of discrimination.” [Citation.] If the
employer meets this burden, the employee then must show that
the employer’s reasons are pretexts for discrimination, or produce
other evidence of intentional discrimination.’ [Citation.]” (Nakai,
supra, 15 Cal.App.5th at pp. 38–39.)
In support of its motion, Wal-Mart proffered a legitimate,
nondiscriminatory reason for terminating plaintiff’s employment,
namely, that plaintiff violated company policies and procedures
on four occasions within one year. As explained in detail above,
plaintiff failed to take mandatory meal breaks on two occasions—
once in January 2016 and once in June 2016. He received a
written level of coaching on both occasions. In early November
2016, plaintiff received a written level of coaching after he
purportedly failed to remove expired products from the sales
floor. Under Wal-Mart’s employee discipline policy, plaintiff was
eligible for employment termination if he were to receive a
written level of coaching after he violated company policy on a
fourth occasion within the next year. And in fact, plaintiff

15
received a written level of coaching less than a month later, after
he failed to report his workplace injury in a timely manner.
Because Wal-Mart offered substantial evidence that it
terminated plaintiff’s employment for a legitimate,
nondiscriminatory reason, we now consider whether plaintiff has
adduced substantial, specific evidence that raises a rational
inference of falsity and/or pretext sufficient to create a triable
issue of material fact.
2.2.3. Plaintiff failed to offer any substantial evidence
of falsity and/or pretext.
Although an employee’s evidence submitted in opposition to
an employer’s motion for summary judgment is construed
liberally, it “remains subject to careful scrutiny.” (King v. United
Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433.) The
employee’s “subjective beliefs in an employment discrimination
case do not create a genuine issue of fact; nor do uncorroborated
and self-serving declarations.” (Ibid.) The employee’s evidence
must relate to the motivation of the decision makers and prove,
by nonspeculative evidence, “an actual causal link between
prohibited motivation and termination.” (Id. at pp. 433–434.)
To show that an employer’s reason for termination is
pretextual, an employee “ ‘cannot simply show that the
employer’s decision was wrong or mistaken, since the factual
dispute at issue is whether discriminatory animus motivated the
employer, not whether the employer is wise, shrewd, prudent or
competent.’ ” (Hersant, supra, 57 Cal.App.4th at p. 1005.) To meet
his or her burden, the employee “ ‘must demonstrate such
weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the employer’s proffered legitimate reasons for
its action that a reasonable factfinder could rationally find them

16
“unworthy of credence,” ’ ” and hence infer “ ‘that the employer
did not act for [the asserted] nondiscriminatory reasons.’ ” (Ibid.)
“[I]f nondiscriminatory, [the employer’s] true reasons need not
necessarily have been wise or correct. [Citations.] While the
objective soundness of an employer’s proffered reasons supports
their credibility ... , the ultimate issue is simply whether the
employer acted with a motive to discriminate illegally.” (Guz,
supra, 24 Cal.4th at p. 358; Featherstone v. Southern California
Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1159–
1160.)
As we understand it, plaintiff claims that the third and
fourth instances of coaching were “unlawful” and that therefore
his eventual employment termination was also “unlawful.” With
respect to the third coaching, plaintiff theorizes that his
supervisor was dissatisfied with his level of productivity. And
rather than directly address that issue through Wal-Mart’s
“coaching for improvement” policy, his supervisor instead
disciplined plaintiff for failing to remove expired product from the
sales floor—even though he knew the product was not expired
and the real problem was that the gun used to apply the
expiration date to packages had malfunctioned. Plaintiff further
argues that but for the third coaching, plaintiff would never have
received a fourth coaching and therefore Wal-Mart would not
have had grounds to terminate his employment.
The facts cited by plaintiff, if true, do not create a dispute
of material fact regarding his disability discrimination claim
because, as noted, the third coaching took place on November 7,
2016—one week before plaintiff filed his workers’ compensation

17
claim and well before anyone at Wal-Mart had been advised of
plaintiff’s disability.5 “ ‘An adverse employment decision cannot
be made “because of” a disability, when the disability is not
known to the employer.’ ” (Scotch v. Art Institute of California
(2009) 173 Cal.App.4th 986, 1008 (Scotch).)
Plaintiff also argues that the fourth coaching, which was
based on his failure to timely report a workplace injury, is “direct
evidence” of disability discrimination. Here, plaintiff asserts that
Wal-Mart disciplined him for “reporting his disability too late for
Walmart’s liking.” That is not precisely true, as plaintiff was
disciplined for failure to report a workplace injury—not a
disability.
In addition, plaintiff contends that Wal-Mart’s justification
for employment termination was a pretext because Wal-Mart
does not have a policy requiring employees to report workplace
injuries within 24 hours. Rather, Wal-Mart’s policy requires
employees to report workplace injuries “immediately.” But it is
immaterial whether Wal-Mart’s policy required employees to
report injuries “immediately” or within 24 hours. In either case,
plaintiff’s two-year delay in reporting the onset of his injury
failed to comply with Wal-Mart’s policy.
Finally, even if disciplining plaintiff for failing to report his
injury was not in compliance with Wal-Mart’s injury reporting
policy, that fact does not raise a triable issue of material fact

5To the extent plaintiff suggests that he was disciplined for
“manifestations of his disability,” i.e., unsatisfactory productivity,
there is no evidence in the record demonstrating either that plaintiff’s
disability led to reduced job performance or that he was ever
disciplined on any basis relating to productivity.

18
regarding disability discrimination. As noted above, an employee
“ ‘cannot simply show that the employer’s decision was wrong or
mistaken, since the factual dispute at issue is whether
discriminatory animus motivated the employer, not whether the
employer is wise, shrewd, prudent or competent.’ ” (Hersant,
supra, 57 Cal.App.4th at p. 1005.)
2.3. Plaintiff’s disability-related claims also fail.
Plaintiff’s complaint includes two claims that are
dependent upon the success of his disability discrimination claim:
the sixth cause of action for failure to take reasonable steps to
prevent discrimination (§ 12940, subd. (k)) and the eighth cause
of action for wrongful employment termination in violation of
public policy. The court properly granted summary adjudication
on these two claims as well.
Where, as here, a plaintiff cannot establish a claim for
discrimination under section 12940, subdivision (a), the employer
as a matter of law cannot be held responsible for failing to
prevent discrimination: “ ‘ “[T]here’s no logic that says an
employee who has not been discriminated against can sue an
employer for not preventing discrimination that didn’t
happen ... .” ’ (Trujillo v. North County Transit Dist. (1998) 63
Cal.App.4th 280, 288–289.)” (Featherstone, supra, 10 Cal.App.5th
at p. 1166.) Plaintiff does not dispute that his failure to prevent
discrimination claim is derivative of his disability discrimination
claim. Thus, because plaintiff cannot establish his underlying
cause of action for disability discrimination, he cannot maintain a
derivative claim for violation of section 12940, subdivision (k).
Plaintiff’s wrongful employment termination claim also
fails. Plaintiff’s eighth cause of action is pleaded as a common law
claim for wrongful termination in violation of public policy.

19
Specifically, plaintiff alleged that his employment was wrongfully
terminated under section 12940, subdivision (a), because of his
disability. But under California law, if an employer did not
violate FEHA, an employee’s claim for wrongful employment
termination in violation of public policy necessarily fails.
(Esberg v. Union Oil Co. (2002) 28 Cal.4th 262, 272–273;
Featherstone, supra, 10 Cal.App.5th 1150, 1169.) The court’s
summary adjudication of this claim was therefore proper.
3. The court properly granted summary adjudication as
to plaintiff’s claims for failure to engage in the
interactive process and failure to accommodate
disability.
Under section 12940, subdivision (n), an employer must
“engage in a timely, good faith, interactive process with the
employee ... to determine effective reasonable accommodations, if
any, in response to a request for reasonable accommodation by an
employee ... with a known physical or mental disability … .”
(§ 12940, subd. (n).) “ ‘The ‘interactive process’ required by the
FEHA is an informal process with the employee or the employee’s
representative, to attempt to identify a reasonable
accommodation that will enable the employee to perform the job
effectively.’ ” (Scotch, supra, 173 Cal.App.4th at p. 1013.) Both
the employer and the employee are responsible for participating
in the interactive process. But “ ‘[w]here the disability, resulting
limitations, and necessary reasonable accommodations, are not
open, obvious, and apparent to the employer, ... the initial burden
rests primarily upon the employee ... to specifically identify the
disability and resulting limitations, and to suggest the reasonable
accommodations.’ ” (Ibid.)

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 Also, under section 12940, subdivision (m), an employer
must provide a “reasonable accommodation for the known
physical or mental disability of an applicant or employee.” An
employer’s duty to reasonably accommodate an employee’s
disability is not triggered until the employer knows of the
disability. (Avila v. Continental Airlines, Inc. (2008) 165
Cal.App.4th 1237, 1252–1253 (Avila).) “[A]n employer ‘knows an
employee has a disability when the employee tells the employer
about his condition, or when the employer otherwise becomes
aware of the condition, such as through a third party or by
observation.’ ” (Faust v. California Portland Cement Co. (2007)
150 Cal.App.4th 864, 887.) “Generally, ‘ “[t]he employee bears the
burden of giving the employer notice of the disability.” ’ ”
(Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1222.)
“ ‘ “[T]he employee can’t expect the employer to read his mind
and know he secretly wanted a particular accommodation and
sue the employer for not providing it. Nor is an employer
ordinarily liable for failing to accommodate a disability of which
it had no knowledge.” ’ ” (Avila, at pp. 1252–1253.)
As noted ante, plaintiff never directly informed anyone at
Wal-Mart that he had a disability which required
accommodation. And the day after plaintiff’s supervisor learned
that plaintiff claimed to be injured, he took plaintiff to a medical
clinic for an evaluation. It is also undisputed that as soon as
plaintiff returned from the medical clinic with a diagnosis and
recommended work restrictions, plaintiff was reassigned to a
light duty job that accommodated his work restrictions.
Plaintiff argues that Wal-Mart did not engage in the
interactive process and did not accommodate plaintiff’s disability
because plaintiff’s supervisor learned of plaintiff’s claimed injury

21
on November 30, 2016 but, rather than immediately changing
plaintiff’s job assignment, his supervisor waited until the
following day to take plaintiff to a doctor. Plaintiff cites no legal
authority, however, suggesting that a one-day delay in securing a
doctor’s appointment is unreasonable per se or that Wal-Mart
was required to immediately reassign plaintiff to another job in
the absence of a medical diagnosis and recommendation for
appropriate accommodations. “Issues do not have a life of their
own: if they are not raised or supported by [substantive]
argument or citation to authority, we consider the issues waived.”
(Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99; see also
Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th
691, 699–700 [“When an issue is unsupported by pertinent or
cognizable legal argument it may be deemed abandoned and
discussion by the reviewing court is unnecessary”]; Ochoa v.
Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1488, fn. 3
[contention waived because “[a]ppellant did not formulate a
coherent legal argument nor did she cite any supporting
authority”].)
Plaintiff also urges that if Wal-Mart had properly engaged
in the interactive process, it “would have made clear to Walmart
that [plaintiff]’s slowed production was due to his disability” and
“would have revealed a need to audit [plaintiff]’s performance
and discipline record to make sure his disability was not held
against him. Such a process would have revealed the
discriminatory nature of the third coaching and prevented
[plaintiff]’s termination.” As we have already explained, however,
the third coaching took place on November 7, 2016—one week
before plaintiff filed his workers’ compensation claim and several
weeks before anyone at Wal-Mart knew of plaintiff’s disability.

22
 Finally, plaintiff claims that Wal-Mart terminated his
employment in order to avoid accommodating his disability. He
cites no evidence supporting that inference, however, and none
appears in the appellate record.
4. The court properly granted summary adjudication on
plaintiff’s harassment claim.
Plaintiff contends triable issues of material fact exist
regarding his age-based harassment claim. Section 12940,
subdivision (j), defines “unlawful employment practice” to include
harassment in the workplace based on age. “ ‘Under the statute
“harassment” in the workplace can take the form of
“discriminatory intimidation, ridicule and insult” that is
“ ‘ “sufficiently severe or pervasive to alter the conditions of the
victim’s employment and create an abusive working
environment.” ’ ” [Citations.] Moreover, harassing conduct takes
place “outside the scope of necessary job performance, conduct
presumably engaged in for personal gratification, because of
meanness or bigotry, or for other personal motives.” (Reno v.
Baird (1998) 18 Cal.4th 640, 646 … .) “Thus, harassment focuses
on situations in which the social environment of the workplace
becomes intolerable because the harassment (whether verbal,
physical, or visual) communicates an offensive message to the
harassed employee.” (Roby v. McKesson Corp. (2009) 47 Cal.4th
686, 706 … .)’ (Rehmani v. Superior Court (2012) 204 Cal.App.4th
945, 951, [italics omitted] … .)” (Serri v. Santa Clara University
(2014) 226 Cal.App.4th 830, 869 (Serri).)
“ ‘Whether the conduct of the alleged harassers was
sufficiently severe or pervasive to create a hostile or abusive
working environment depends on the totality of the
circumstances. “ ‘These may include the frequency of the

23
discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee’s work
performance.’ ” [Citations.] “ ‘Common sense, and an appropriate
sensibility to social context, will enable courts and juries to
distinguish between simple teasing or roughhousing ... and
conduct [that] a reasonable person in the plaintiff’s position
would find severely hostile or abusive.’ ” [Citations.] As in sex-
based harassment claims, “[t]he plaintiff must prove that the
defendant’s conduct would have interfered with a reasonable
employee’s [ ] work performance and would have seriously
affected the psychological well-being of a reasonable employee
and that [he or she] was actually offended.” [Citations.]’
(Rehmani, supra, 204 Cal.App.4th at pp. 951–952.)” (Serri, supra,
226 Cal.App.4th at p. 870.)
Here, it is undisputed that Guaracha called plaintiff
“hombre viejo” on a near-daily basis. Plaintiff thought Guaracha
was joking but also intended to be mean, and Guaracha’s
comments did make plaintiff feel “bad.” Thus, although the
conduct was frequent and offensive to some degree, it was limited
to name-calling and did not involve any threatening behavior,
physical intimidation, or other hostility. Plaintiff’s claim fails,
however, on the issue of severity. Plaintiff admitted that
Guaracha’s comments had no impact on his work—an important
indicator regarding severity and hostility in the workplace.
Further, plaintiff waited for two years before informing anyone at
Wal-Mart about Guaracha’s conduct and even then, he did not
want any action taken to stop Guaracha’s behavior. In light of
these facts, we conclude no triable issue exists as to whether the

24
age-based harassment was sufficiently severe or pervasive as to
alter the conditions of plaintiff’s employment.
Because plaintiff’s harassment claim fails, his dependent
claim of failure to take reasonable steps to prevent harassment
also fails. (See Dickson v. Burke Williams, Inc. (2015) 234
Cal.App.4th 1307, 1314 [noting a plaintiff cannot recover for
failure to take steps to prevent discrimination or harassment
unless actionable discrimination or harassment actually
occurred].)
5. The court properly granted summary adjudication on
plaintiff’s retaliation claim.
Plaintiff contends triable issues of fact exist regarding his
claim that he was retaliated against for reporting a disability and
complaining about age-based harassment. To establish a prima
facie case of retaliation under FEHA, a plaintiff must show (1) he
or she engaged in a “protected activity,” (2) the employer
subjected the employee to an adverse employment action, and
(3) a causal link existed between the protected activity and the
employer’s action. (Iwekaogwu v. City of Los Angeles (1999) 75
Cal.App.4th 803, 814–815.)
Plaintiff asserts that “there is a clear causal link between
the protected activities and Walmart’s adverse actions.”
Specifically, plaintiff emphasizes that Wal-Mart terminated his
employment just two days after learning that he had a disability
which required accommodation. He asserts, therefore, that he
“was entitled to an inference of retaliation due to temporal
proximity alone.” The legal authority he cites, however, merely
confirms that temporal proximity between protected activity and
an adverse employment action may be sufficient to establish a
prima facie case of retaliation. (E.g., Flait v. North American

25
Watch Corp. (1992) 3 Cal.App.4th 467, 476–478 [analyzing prima
facie showing of retaliation]; Fisher v. San Pedro Peninsula
Hospital (1989) 214 Cal.App.3d 590, 615 [same].) The cited cases
do not stand for the proposition that temporal proximity,
standing alone, is sufficient to withstand summary adjudication
under California law.
Plaintiff also contends that Wal-Mart’s failure to
investigate his harassment claim provides additional evidence of
retaliatory motive. As plaintiff suggests, Wal-Mart has a policy
requiring it to investigate an employee’s claim of workplace
harassment and it is undisputed that Wal-Mart did not
investigate plaintiff’s complaint. Plaintiff then claims that a
“failure to conduct a good faith and reasonable investigation is
sufficient to show pretext.” The cases plaintiff cites, Cotran v.
Rollins Hudig Hall Internat., Inc. (1988) 17 Cal.4th 93, 95
(Cotran) and Kotla v. Regents of University of California (2004)
115 Cal.App.4th 283, 294, fn. 6 (Kotla), do not assist him here.
In Cotran, our high court held that when an employee hired
under an implied agreement not to be dismissed except for “good
cause” is fired for misconduct and challenges the termination in
court, the role of the jury is not to decide whether the misconduct
occurred, but whether employer had reasonable grounds for
believing that the misconduct occurred and otherwise acted
fairly. (Cotran, supra, 17 Cal.4th at p. 107.) The court’s analysis
suggests that in evaluating the reasonableness of an employer’s
belief, a jury might consider whether the employer conducted a
good faith and reasonable investigation. That issue is not
presented here and, in any event, Cotran does not hold, as
plaintiff asserts, that “[t]he failure to conduct a good faith and

26
reasonable investigation is sufficient to show pretext” in an
employment discrimination case.
Kotla is similarly inapplicable. There, the plaintiff alleged
that her employer had wrongfully terminated her employment for
retaliatory reasons. At the jury trial, the court admitted
testimony by the plaintiff’s human resources expert suggesting
that certain actions by the employer were “indicators” of a
retaliatory motive. The Court of Appeal concluded the testimony
was improper opinion testimony on the ultimate factual issues.
(Kotla, supra, 115 Cal.App.4th at pp. 289–291.) Citing a footnote
in the opinion, plaintiff contends Kotla establishes that
“[e]vidence of an employer failing to follow its own procedures is
also sufficient to demonstrate pretext.” Plaintiff is wrong. The
footnote cited by plaintiff states: “We fashion no general rule here
precluding the use of human resources experts in employment
cases. We are concerned solely with Dr. Finkelman’s testimony
that the facts in evidence were indicators of or had a tendency to
show retaliation. Expert testimony on predicate issues within the
expertise of a human resources expert is clearly permissible. For
example, evidence showing (or negating) that an employee’s
discharge was grossly disproportionate to punishments meted out
to similarly situated employees, or that the employer
significantly deviated from its ordinary personnel procedures in
the aggrieved employee’s case, might well be relevant to support
(or negate) an inference of retaliation. Opinion testimony on
these subjects by a qualified expert on human resources
management might well assist the jury in its factfinding.” (Id. at
p. 294, fn. 6.) The court’s footnote is dicta and, as is evident,
merely suggests that an employer’s compliance with its internal
policies might be relevant on the issue of retaliation. But the

27
opinion does not hold, as plaintiff claims, that such evidence is
conclusive—or even sufficient to create a triable issue as to an
employer’s motive for retaliation.
6. Wal-Mart’s Expanded Deposition Excerpts in Support
of its Reply Papers
Finally, plaintiff argues the court erred in overruling his
objections to “new evidence” submitted by Wal-Mart with its
summary judgment reply papers. Specifically, Wal-Mart
submitted several short excerpts from the depositions of William
Ramirez, Miguel Gomez, and Mario Perez relating to plaintiff’s
theory that his third coaching was based on productivity-related
concerns rather than, as stated, his failure to remove expired
products from the sales floor.
We would typically review a court’s evidentiary rulings for
an abuse of discretion. (See, e.g., Zhou v. Unisource Worldwide
(2007) 157 Cal.App.4th 1471, 1476.) Here, however, it is
unnecessary to undertake a substantive review of the court’s
decision because the evidence identified by plaintiff is not
relevant to our analysis of the issues presented in this appeal.
Further, and in any event, plaintiff has not shown that any error
in the court’s evidentiary rulings was prejudicial. And it is
axiomatic that a judgment may not be reversed on appeal unless
“after an examination of the entire cause, including the
evidence,” it appears the error caused a “miscarriage of justice.”
(Cal. Const., art. VI, § 13.)

28
 DISPOSITION

The judgment is affirmed. Wal-Mart Associates, Inc. and
William Guaracha shall recover their costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, J.
WE CONCUR:

EDMON, P. J.

EGERTON, J.

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