Allen v. Staples, Inc.

Filed 9/20/22; certified for partial publication 10/18/22 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

JOYCE ALLEN, B311426

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 19STCV08311)

STAPLES, INC., et al.,

Defendants and
Respondents.

APPEAL from a judgment of the Superior Court of the
County of Los Angeles, Michael P. Linfield, Judge. Reversed and
remanded with instructions.
Hannemann Law Firm, Brian G. Hannemann, McNally
Law Firm, Bryan L. McNally, and Kathleen Doherty, for Plaintiff
and Appellant.
Littler Mendelson, Brandie N. Charles and Michelle Marie
Holmes, for Defendants and Respondents.
 I. INTRODUCTION

The trial court granted summary judgment in favor of
defendants1 on plaintiff Joyce Allen’s complaint for wrongful
termination and violations of the Equal Pay Act (EPA; Lab. Code
§ 1197.5 (section 1197.5)) and the Fair Employment and Housing
Act (FEHA; Gov. Code § 12940 et seq.). On appeal, plaintiff
contends that reversal is warranted because her evidence raised
triable issues on each of her claims. We reverse the judgment
and remand with instructions.

II. FACTUAL BACKGROUND2

Plaintiff began working for Staples in October 2006 as a
sales representative. In March 2015, she took a position as an
outside facilities area sales manager (ASM), a position she held
until June 2017. As an ASM, plaintiff “oversaw a team of [s]ales
[r]epresentatives who were responsible for contracting with
[business customers and] overseeing[] and managing client
relationships and business sales of Staples products.” Narlock, a
field sales director (FSD), supervised plaintiff and the other
ASMs in the Pacific region during the time plaintiff held the
position.

1 The defendants are Staples, Inc. (the parent), Staples
Contract & Commercial, LLC (Staples), and Charles R. Narlock
(Narlock).

2 We summarize here the undisputed background facts to
lend context to the discussion of the issues that follows. The facts
specific to each claim are detailed in the section addressing it.

2
 In June or July 2017, plaintiff became a FSD. In that
position, she reported to area sales vice president Bruce Trahey,
as did fellow FSD Narlock. In February 2019, as part of a
corporate reorganization, Trahey informed plaintiff and several
other FSDs of his decision to eliminate their positions and
terminate their employment.

III. PROCEDURAL BACKGROUND

In March 2019, plaintiff filed her complaint asserting six
causes of action against Staples and the parent3 for: violation of
the EPA (first cause of action); gender discrimination under
FEHA (second cause of action); sexual harassment under FEHA
(third cause of action); failure to prevent discrimination and
harassment under FEHA (fourth cause of action); retaliation
under FEHA (fifth cause of action); and wrongful termination in
violation of public policy (seventh cause of action). Plaintiff
attached the administrative complaint she filed with the
Department of Fair Employment and Housing (DFEH) to her
civil complaint.
In February 2020, defendants filed their motion for
summary judgment or, in the alternative, summary adjudication
of issues and supporting papers and evidence. Plaintiff opposed

3 The first and third causes of action were also asserted
against Narlock and Charisse Clay (Clay), individually, and the
sixth cause of action for sexual assault and battery was asserted
only against Clay. On October 15, 2020, prior to the hearing on
defendants’ summary judgment motion, plaintiff voluntarily
dismissed her claims against Clay, and she is not a party to this
appeal.

3
the motion, supported by her declaration, and also filed objections
to defendants’ evidence. Defendants then replied and filed
objections to plaintiff’s declaration.
On January 21, 2021, the trial court held a hearing on
defendants’ motion and issued a minute order in which it
sustained the majority of defendants’ objections to plaintiff’s
declaration4 and granted both summary judgment and, in the
alternative, summary adjudication on each cause of action.
On February 8, 2021, the trial court entered a judgment in
favor of defendants. On March 17, 2021, plaintiff filed a timely
notice of appeal.

IV. DISCUSSION

A. Standard of Review

“‘“A trial court properly grants a motion for summary
judgment only if no issues of triable fact appear and the moving
party is entitled to judgment as a matter of law. (Code Civ. Proc.,
§ 437c, subd. (c); see also id., § 437c, subd. (f) [summary
adjudication of issues].)”’” (State of California v. Allstate Ins. Co.
(2009) 45 Cal.4th 1008, 1017.) “We review the trial court’s
decision [on a summary judgment motion] de novo, considering
all of the evidence the parties offered in connection with the
motion (except that which the court properly excluded) and the

4 On appeal, plaintiff does not challenge the court’s rulings
on the objections to her declaration. We therefore do not consider
the matters in that declaration as to which objections were
sustained. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.)

4
uncontradicted inferences the evidence reasonably supports.
[Citation.]” (Merrill v. Navegar, Inc., supra, 26 Cal.4th at p. 476.)
“[I]n moving for summary judgment, a ‘defendant . . . has
met’ his ‘burden of showing that a cause of action has no merit if’
he ‘has shown that one or more elements of the cause of action
. . . cannot be established, or that there is a complete defense to
that cause of action. Once the defendant . . . has met that
burden, the burden shifts to the plaintiff . . . to show that a
triable issue of one or more material facts exists as to that cause
of action or a defense thereto. The plaintiff . . . may not rely upon
the mere allegations or denials’ of his ‘pleadings to show that a
triable issue of material fact exists but, instead,’ must ‘set forth
the specific facts showing that a triable issue of material fact
exists as to that cause of action or a defense thereto.’ (Code Civ.
Proc., § 437c, subd. (o)(2).)” (Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 849 (Aguilar).)

B. First Cause of Action: Violation of EPA

Plaintiff challenges the trial court’s conclusion that she
failed to make a prima facie case on her EPA claim, arguing that
her evidence showing the pay disparity between her starting
salary, as both an ASM and a FSD, and Narlock’s salary when he
started at those positions constituted the requisite prima facie
showing on the elements of that claim against Staples. We agree.

1. Background

During plaintiff’s employment, Staples’s employees
received annual salaries based on the grade assigned to their job

5
position. Each grade had a corresponding salary range; the
specific salary an employee would receive within a grade range
was determined by several factors, including time with the
company, number of years in the position, and performance.
When plaintiff became an ASM in March 2015, it was a
grade 37 job position with an annual salary range between
$65,000 and $135,000.5 Staples set her base salary at
$84,999.966 and increased it to $86,912.46 in April 2017.
Narlock, who was an ASM before being promoted to a FSD,
had a base salary in grade 37 of $107,698.86. That was
approximately $22,000 more in base salary than Staples paid
plaintiff when she started in the position.
During the period that plaintiff held her ASM position,
there were two other ASMs in California, a man who earned
between $109,999.76 and $111,099.76 and a woman who earned
between $124,071.81 and $127,818.78. Although Staples had
fewer ASMs who were women than men in the United States
during that period, women were among the highest earning
ASMs. And, at least six men earned less than plaintiff.
In July 2017, when plaintiff became a FSD, it was a grade
38 position with an annual salary range between $80,000 and
$160,000. Plaintiff’s annual base salary in that position was set
at $86,912.46, the same salary she had been earning as an ASM,

5 In addition to their annual base salary, ASMs, including
plaintiff, received monthly commissions pursuant to an ASM
commission plan.

6 There is no evidence in the record concerning the person or
persons at Staples responsible for determining the amount of
plaintiff’s salary as either an ASM or a FSM.

6
and it remained at that rate until her February 2019
termination.
Narlock’s base salary in his grade 38 FSD position was
$135,000—$48,087.54 more than plaintiff’s FSD base salary. In
May 2016, Narlock’s base salary increased to $140,451, the
amount he was making when plaintiff became an FSD in June
2017.
The salary data for FSD employees during the time
plaintiff held the position showed fewer women than men in that
position. But at least five of those women earned more in base
salary than several of the men. And, at least three men earned
less in base salary than plaintiff.

2. Legal Principles

“Section 1197.5 is California’s equal pay law. Its operative
subsection states: ‘No employer shall pay any individual in the
employer’s employ at wage rates less than the rates paid to
employees of the opposite sex in the same establishment for equal
work on jobs the performance of which requires equal skill, effort,
and responsibility, and which are performed under similar
working conditions, except where the payment is made pursuant
to a seniority system, a merit system, a system which measures
earnings by quantity or quality of production, or a differential
based on any bona fide factor other than sex.’ (§ 1197.5, subd.
(a).)” (Green v. Par Pools, Inc. (2003) 111 Cal.App.4th 620, 622–
623.)
To prove a prima facie case of wage discrimination, “a
plaintiff must establish that, based on gender, the employer pays
different wages to employees doing substantially similar work

7
under substantially similar conditions. [Footnote omitted.]”
(Hall v. County of Los Angeles (2007) 148 Cal.App.4th 318, 323.)
“If that prima facie showing is made, the burden shifts to the
employer to prove the disparity is permitted by one of the EPA’s
[four] statutory exceptions—[such as,] that the disparity is based
on a factor other than sex.” (Id. at pp. 323–324.) But a plaintiff
must show “not only that she [was] paid lower wages than a male
comparator for equal work, but that she has selected the proper
comparator.” (Id. at p. 324.) “The [EPA] does not prohibit
variations in wages; it prohibits discriminatory variations in
wages. . . . [Accordingly,] ‘a comparison to a specifically chosen
employee should be scrutinized closely to determine its
usefulness.’” (Hein v. Oregon College of Education (1983) 718
F.2d 910, 916.)7

3. Analysis

a. Staples8

Staples’s evidence in support of its summary adjudication
motion on the EPA claim showed that female ASMs were paid
more, on average, than men were paid and that some male ASMs
and FSDs were paid lower salaries than plaintiff. According to

7 “[I]n the absence of California authority, it is appropriate to
rely on federal authorities construing the federal [Equal Pay Act
(EPA); 29 U.S.C. § 206(d)(1)] . . . .” (Green v. Par Pools, Inc.,
supra, 111 Cal.App.4th at p. 623.)

8 It is undisputed that Staples was plaintiff’s employer under
the EPA.

8
Staples, that undisputed evidence established that it did not pay
males more than it paid females in similar positions. In
response, plaintiff highlighted Staples’s evidence showing that
Narlock—an appropriate male comparator in the Pacific region—
was paid more in base salary, as both an ASM and a FSD, than
she was paid in those positions.
Authorities under the federal EPA have held that a
plaintiff claiming gender-based pay disparity may establish a
prima facie case by showing that she was paid less in salary than
a single male comparator. (See Dubowsky v. Stern, Lavinthal,
Norgaard & Daly (1996) 922 F.Supp. 985, 990 [“[The p]laintiff
need only establish that she was paid differentially because of
her sex with respect to a single male employee to prove her
[federal] EPA claim. [Citations.]”.) Thus, plaintiff’s evidence—
that she was paid $22,000 less in base salary than Narlock as an
ASM and $48,000 less in base salary than him as a FSD—was
sufficient to carry her initial burden on her EPA claim and shift
to Staples the burden of showing there was no triable issue of fact
on one of the four exceptions to that claim.
Staples argues that the salary differentials between
Narlock and plaintiff are explained by bona fide factors other
than gender, namely, Narlock’s time with the company and his
experience before taking both positions. But Staples’s evidence
showed only that, as a general practice, it set salaries based on
factors such as seniority, years of experience in a given position,
and merit. It did not set forth the specific factors on which
Narlock’s base salary, in either position, was premised or the
factors on which plaintiff’s base salaries were premised. Absent
such evidence, Staples failed to establish that there was no
triable issue of fact on its “other bona fide factors” defense. The

9
trial court therefore erred in granting summary adjudication in
favor of Staples on that claim.9

b. The Parent

Plaintiff argues that there is a triable issue of material fact
as to whether the parent is liable for the alleged EPA violations
because it was also her employer under the “single employer
doctrine” and the related “integrated enterprise” test. According
to plaintiff, the parent had the initial burden to set forth evidence
under the integrated enterprise test showing that it was not her
employer and it failed to carry that burden.
“The federal courts have developed a test, derived from
federal labor case law, to determine whether two corporations
should be considered a single employer for title VII purposes.
Commonly called the ‘integrated enterprise’ test, it has four
factors: interrelation of operations, common management,
centralized control of labor relations, and common ownership or
financial control.” (Laird v. Capital Cities/ABC, Inc. (1998) 68
Cal.App.4th 727, 737, fn. omitted.) But, “[a]n employee who
seeks to hold a parent corporation liable for the acts or omissions
of its subsidiary on the theory that the two corporate entities
constitute a single employer has a heavy burden to meet under
both California and federal law. Corporate entities are presumed

9 Plaintiff does not challenge the trial court’s granting of
summary adjudication as to her claim for punitive damages on
her EPA claim, i.e., she does not contend that Staples acted with
fraud, oppression, or malice in setting her base salaries. We
therefore do not consider this issue further.

10
to have separate existences, and the corporate form will be
disregarded only when the ends of justice require this result.
[Citations.] In particular, there is a strong presumption that a
parent company is not the employer of its subsidiary’s employees.
[Citation.]” (Ibid.)
Plaintiff’s complaint alleged that Staples and the parent
were distinct business entities separately incorporated under the
laws of Delaware that were each qualified to do business in
California. And, Staples submitted declaration testimony that it
was plaintiff’s employer. Plaintiff’s pleading and Staples’s
testimony were sufficient to trigger the strong presumption that
the parent was not plaintiff’s employer. The burden therefore
shifted to plaintiff to rebut that presumption by showing triable
issues of fact on the four factors that comprise the integrated
enterprise test. But, instead of submitting evidence in support of
those factors, she points on appeal to Staples’s evidence
describing a corporate acquisition of the parent and a subsequent
reorganization of Staples’s business operations which, according
to Staples, resulted in the elimination of plaintiff’s FSD position.
That evidence is insufficient to satisfy plaintiff’s burden of
demonstrating a triable issue on each of the four integrated
enterprise factors. Plaintiff points to no evidence showing, for
example, that there was common management between the two
corporations. To the contrary, it was undisputed that the
decision-maker concerning the elimination of plaintiff’s position,
Trahey, was employed by Staples, not the parent, and that the
ranking formula he used in making that decision was developed
by Staples’s human resources department, not the parent’s
department. The trial court therefore did not err in granting

11
summary adjudication of plaintiff’s EPA claim against the
parent.

c. Narlock

Plaintiff asserts that Narlock was her “employer” for
purposes of individual liability to her under the EPA. Section
1197.5, subdivision (c) provides that “[a]ny employer who violates
subdivision (a) or (b) is liable to the employee affected in the
amount of the wages, and interest thereon, of which the employee
is deprived by reason of the violation . . . .” In Martinez v. Combs
(2010) 49 Cal.4th 35, 64 (Martinez), the California Supreme
Court articulated the following definition for use in determining
“who might have liability as an employer for unpaid minimum
wages under the Labor Code: ‘To employ, . . . has three
alternative definitions. It means: (a) to exercise control over the
wages, hours or working conditions, or (b) to suffer or permit to
work, or (c) to engage, thereby creating a common law
employment relationship.’ (Martinez, supra, 49 Cal.4th at p. 64.)
[¶] The Supreme Court stated the alternative definitions of
employer are sufficiently broad to encompass a proprietor who
employs a worker by contract, permits work by acquiescence, or
suffers work to be performed by a failure to hinder. ([Id.] at
p. 69.)” (Turman v. Superior Court (2017) 17 Cal.App.5th 969,
982.)
Here, plaintiff did not submit evidence raising a triable
issue on Narlock’s status as her employer under the Martinez,
supra, 49 Cal.4th 35 definition or any other analogous definition
of an employer under the Labor Code. And, she did not suggest
that he was her employer as a matter of law. On appeal,

12
however, she relies on Labor Code section 1199.5,10 which
imposes criminal liability on individual employees, such as
Narlock, for willful violations of the EPA. According to plaintiff,
the Legislature’s expansion of the class of persons who can be
criminally liable under the EPA suggests a parallel intent to
expand the class of persons who can be civilly liable. We
disagree.
Had the Legislature intended to make “[e]very employer or
other person” who engaged in the conduct enumerated in Labor
Code section 1199.5 civilly liable for EPA violations, it would
have used such explicit language in the text of section 1197.5.
Instead, it left intact the clear language that only “[a]n employer”
is civilly liable for certain conduct, with no suggestion or
implication that other individuals affiliated with the employer
could also be held liable. (See Brennon C. v. Superior Court
(2022) 13 Cal.5th 662, 669 [“We do not believe the Legislature . . .
would have made such a significant change to the scope of the Act
without clear language in the statutory text and without any
discussion of such a change in the legislative history”]; People v.
Raybon (2021) 11 Cal.5th 1056, 1068 [“if the drafters had
intended to so dramatically change the law[] . . . , we would
expect them to have been more explicit about their goals”];

10 Labor Code section 1199.5 provides, in pertinent part:
“Every employer or other person acting either individually or as
an officer, agent, or employee of another person is guilty of a
misdemeanor . . . who willfully does any of the following: [¶]
(a) Pays or causes to be paid any employee a wage less than the
rate paid to an employee of another sex, race, or ethnicity, as
required by [s]ection 1197.5. [¶] (b) Reduces the wages of any
employee in order to comply with [s]ection 1197.5.”

13
Riverside County Sheriffs Department v. Stiglitz (2014) 60
Cal.4th 624, 647 [“It is doubtful that the Legislature would have
instituted such a significant change through silence”].) The trial
court therefore correctly concluded that Narlock was entitled to
summary adjudication of the EPA claim.

C. Second Cause of Action: Gender Discrimination

Plaintiff argues that the trial court erred by finding there
was no triable issue of fact as to her FEHA gender discrimination
claim against Staples and the parent. According to plaintiff, her
prima facie showing of a pay disparity in support of her EPA
claim also satisfied the “‘adverse employment action’ prong of the
four[-]factor FEHA [discrimination] test” and her additional
evidence of Narlock’s gender bias and harassment of her showed
that the pay disparity was attributable to her gender.

1. Legal Principles

“In analyzing claims of discrimination under FEHA,
California courts have long used the three-stage burden-shifting
approach established by the United States Supreme Court in
McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 . . . for the
analysis of title VII (42 U.S.C. § 2000e et seq.) employment
discrimination claims. . . . [¶] Under the McDonnell Douglas
test a plaintiff may establish a prima facie case for unlawful
discrimination by providing evidence that ‘(1) he [or she] was a
member of a protected class, (2) he [or she] was qualified for the
position he [or she] sought or was performing competently in the
position he [or she] held, (3) he [or she] suffered an adverse

14
employment action, such as termination, demotion, or denial of
an available job, and (4) some other circumstance suggests
discriminatory motive.’ [Citations.] ‘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.’ [Citation.]” (Husman v. Toyota
Motor Credit Corp. (2017) 12 Cal.App.5th 1168, 1181.)

2. Analysis

Although plaintiff met her prima facie burden on the
elements of her EPA claim, that showing of a pay disparity, by
itself, did not satisfy her burden under FEHA to make a causal
connection between the disparity and her gender. She was also
required to submit competent evidence of some circumstance
suggesting that Staples paid her less than Narlock because of her
gender. To support her claim, plaintiff points to evidence of
Narlock’s “harassing management style,” his favoritism of her
subordinate Heather Burke, his expressed desire to have sex with
Burke, and his other inappropriate conduct involving Burke. But
plaintiff fails to link any of that evidence to either (1) Staples’s
decision in March 2015 to pay her $22,000 less than Narlock
when she started as an ASM; or (2) Staples’s decision in July
2017 to pay her $48,000 less than him when she started as a

15
FSD. Absent some evidence that Narlock had a role in making
either of those salary decisions, his alleged misconduct toward
plaintiff and favoritism of Burke did not, without more, support a
reasonable inference of the requisite causal link. The trial court
therefore correctly concluded that Staples and the parent were
entitled to summary adjudication of plaintiff’s FEHA
discrimination claim.

D. Third Cause of Action: Sexual Harassment

Plaintiff contends that the trial court erred by concluding
that her FEHA claims against Staples, the parent, and Narlock
based on sexual harassment by Narlock were time-barred.
Relying on the allegations of her complaint, plaintiff argues that
at least one act of harassment by Narlock occurred within the
limitations period, making her claim viable under the continuing
violations doctrine articulated in Yanowitz v. L’Oreal USA, Inc.
(2005) 36 Cal.4th 1028 (Yanowitz).

1. Background

In her deposition, plaintiff was asked about the incidents
involving Narlock that supported her sexual harassment claim.
She responded as follows: In 2015, plaintiff attended an event at
Staples Center at which Narlock touched her buttocks. She did
not report the incident to Staples’s human resources department,
or ask anyone who witnessed it to make a report, and she did not
speak to Narlock about it afterward. The 2015 incident at
Staples Center was the only time Narlock touched plaintiff
inappropriately.

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 In late 2015, Narlock shared with plaintiff a lewd comment
Clay had made to him; and, sometime during 2016, he made
another inappropriate sexual comment to plaintiff about Burke.
Plaintiff did not report the latter 2016 incident to Staples’s
human resources department.
On March 7, 2019—well over a year after the last incident
of harassment by Narlock in 2016—plaintiff filed her complaint
with the DFEH alleging, among other things, sexual harassment.

2. Legal Principles

“An employee who wishes to file suit under the FEHA
‘must exhaust the administrative remedy provided by the statute
by filing a complaint with the’ Department of Fair Employment
and Housing (the DFEH), ‘and must obtain from the [DFEH] a
notice of right to sue. [Citation.] ‘The timely filing of an
administrative complaint’ before the DFEH ‘is a prerequisite to
the bringing of a civil action for damages.’ [Citation.]” (Pollock v.
Tri-Modal Distribution Services, Inc. (2021) 11 Cal.5th 918, 931
(Pollock).) At the time of the alleged sexually harassing conduct
here, “the FEHA provided that no administrative complaint
alleging a violation of its provisions could be filed with the DFEH
‘after the expiration of one year from the date upon which the
alleged unlawful practice or refusal to cooperate occurred.’ ([Gov.
Code] § 12960, former subd. (d).)” (Pollock, supra, 11 Cal.5th at
p. 931.)

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 3. Analysis

Relying on plaintiff’s admissions about Narlock’s
inappropriate touching in early 2015 and his two inappropriate
comments in late 2015 and 2016, Staples, the parent, and
Narlock moved for summary adjudication of plaintiff’s sexual
harassment claim under FEHA, arguing that her claim was time-
barred under the one-year limitations period set forth in
Government Code section 12960, former subdivision (d).
Plaintiff’s opposition raised the continuing violations
doctrine (Yanowitz, supra, 36 Cal.4th 1028) as an exception to the
time-bar, but she did not specify any inappropriate act or
comment that occurred during the limitations period, much less
cite to supporting evidence.
On appeal, plaintiff cites for the first time to paragraph 69
of her complaint describing a June 2018 incident in Colorado
during which Narlock made another sexually inappropriate
comment to her. She does not, however, cite to any evidence to
support that allegation; and, in her 97-paragraph declaration, she
failed to mention it. Because Staples submitted sufficient
evidence in support of its statute of limitation defense (in the
form of plaintiff’s deposition admissions), the burden on summary
adjudication shifted to plaintiff to raise a triable issue on that
defense with evidence showing a continuing violation under
Yanowitz, supra, 36 Cal.4th 1028. Her failure to submit such
evidence supported the conclusion that there was no triable issue
of fact on whether the FEHA harassment claims against Staples,
the parent, and Narlock were time-barred.

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E. Fifth Cause of Action: Retaliation

Plaintiff raises two challenges to the trial court’s ruling on
her retaliation claim against Staples and the parent. First, she
asserts she met her burden on the third element of her
retaliation claim—“adverse employment action”—by
demonstrating that her 2017 promotion to the FSD position was
a “sham.” Second, she maintains that she raised a triable issue
on that same element based on the circumstances of her
termination.

1. Background

a. Sham Promotion

In her complaint, plaintiff alleged that following her
reporting of Clay’s sexual harassment in 2016, Staples retaliated
against her in various ways, including by having Burke file a
false claim about plaintiff to human resources, reassigning
accounts to Narlock, and assigning certain less-desirable
territories to plaintiff. Plaintiff did not, however, allege that her
transfer from the ASM position to a FSD position in June 2017
was a lateral transfer to a more disadvantageous position or that
Staples took that job action in retaliation for engaging in
protected activities.

b. Corporate Restructuring

In its motion, Staples relied on the declaration of Trahey to
explain the reasons for plaintiff’s termination. According to

19
Trahey, due to the acquisition of Staples by a private equity firm,
the company’s business-to-business sales were reorganized “by
geographical region, instead of [by] product category.” As part of
the strategy of streamlining operations, Staples eliminated the
FSD position based on a corporate directive that “each category
in each region was to select a single [r]egional [s]ales [d]irector
(RSD) from its multiple FSDs.” Trahey was “tasked with
determining which of the Western Area FSDs would be retained
as the sole RSD for each region.”
Trahey based his “elimination decision” on a “rankings
formula” which was a company-wide competency assessment
created by Staples’s human resources department. “These
rankings assigned numerical grades (out of a possible five
points)” to each FSD on the following six “competencies”: (1) job
knowledge and sales skills; (2) flexibility; (3) execution;
(4) problem solving/decision making; (5) effectiveness; and
(6) business skills. Trahey did not evaluate or compare FSDs in
one region to FSDs in another and did not rely on performance
evaluations or sales report numbers as part of his assessment
because there had been so many recent changes to territories as
part of the company reorganization.
Plaintiff and Narlock were the only FSDs in the Pacific
region and Trahey evaluated and ranked them according to the
six factors listed above. Trahey scored Narlock above plaintiff on
each of the six factors; Narlock’s overall score was 26 out of a
possible 30 points, while plaintiff’s score was 13 out of 30. Based
on those scores and the scores of the other FSDs in the Western
area, Trahey “informed [p]laintiff, along with several other FSDs,
of the decision to end their employment as an FSD.”

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 2. Legal Principles

“[I]n order to establish a prima facie case of retaliation
under the 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. [Citations.]
Once an employee establishes a prima facie case, the employer is
required to offer a legitimate, nonretaliatory reason for the
adverse employment action. [Citation.] 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. [Citation.]” (Yanowitz, supra, 36 Cal.4th at p. 1042.)
In making a motion for summary judgment, a defendant
may rely on the complaint in framing the issues upon which it
seeks adjudication. “The pleadings play a key role in a summary
judgment motion. ‘“The function of the pleadings in a motion for
summary judgment is to delimit the scope of the issues . . .”’ and
to frame ‘the outer measure of materiality in a summary
judgment proceeding.’ [Citation.] . . . ‘The materiality of a
disputed fact is measured by the pleadings [citations], which “set
the boundaries of the issues to be resolved at summary
judgment.” [Citations.]’ [Citation.] Accordingly, the burden of a
defendant moving for summary judgment only requires that he or
she negate plaintiff’s theories of liability as alleged in the
complaint; that is, a moving party need not refute liability on
some theoretical possibility not included in the pleadings.
[Citations.]

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 “Furthermore, ‘“‘“[t]he [papers] filed in response to a
defendant’s motion for summary judgment may not create issues
outside the pleadings and are not a substitute for an amendment
to the pleadings.”’” [Citation.]’ [Citation.] An opposing party’s
separate statement is not a substitute for amendment of the
complaint. [Citation.] Similarly, ‘“‘[d]eclarations in opposition to
a motion for summary judgment “are no substitute for amended
pleadings.” . . . If the motion for summary judgment presents
evidence sufficient to disprove the plaintiff’s claims, . . . the
plaintiff forfeits an opportunity to amend to state new claims by
failing to request it.’” [Citations.]’” (Hutton v. Fidelity National
Title Co. (2013) 213 Cal.App.4th 486, 493 (Hutton).)

3. Analysis

a. Sham Promotion

Plaintiff’s complaint alleged that Staples retaliated against
her in various and specific ways. It did not, however, include an
allegation that Staples retaliated against her by moving her to
the FSD position. Plaintiff contends that she should not be
limited to the issues raised in her complaint because “at the time
the complaint was drafted, [she] was not aware of [an e-mail]”
that suggested her promotion was a sham. But plaintiff does not
explain why, after becoming aware of the e-mail, she did not
request leave to amend the complaint. We therefore need not
consider plaintiff’s new theory on appeal. (Hutton, supra, 413
Cal.App.4th at p. 493.)

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 b. Corporate Restructuring

Plaintiff argues that Staples’s failure to offer her an
opportunity to transfer, in lieu of termination, shows that there
was a triable issue as to whether Staples’s proffered justification
for her termination was pretextual. But the undisputed evidence
showed that (1) plaintiff’s position was eliminated as the result of
a corporate directive to restructure the management of Staples’s
sales force; and (2) Trahey’s termination decision, consistent with
that directive, was based on a ranking formula developed by
Staples’s human resources department that was applied to FSDs
company-wide. In response to that showing, plaintiff submitted
no admissible evidence that Trahey had been authorized to offer
transfers or that any of the other FSDs whose positions were
eliminated were offered an opportunity to transfer.11 Absent
such evidence, plaintiff’s argument is based on speculation that a
transfer was an available alternative to termination under the
corporate directive and therefore insufficient to raise a triable
issue of fact on pretext.
Plaintiff also argues that the factors used to rank her were
subjective, which she claims raises a triable issue on pretext. We
disagree. Although courts “view with skepticism subjective
evaluation methods,” the use of “subjective criteria [is] not
wrongful per se . . . .” (Garrett v. Hewlett-Packard Co. (10th Cir.

11 As we note above, plaintiff does not challenge the trial
court’s evidentiary rulings sustaining defendants’ objections to
her declaration. Thus, in evaluating whether plaintiff raised a
triable issue on pretext, we cannot consider any statements in
that declaration to which objections were sustained.

23
2002) 305 F.3d 1210, 1218.) And, in response to Staples’s
undisputed evidence that Trahey used and applied the same six
factors to each of the 11 FSDs in his Western area as were used
and applied company-wide, plaintiff did not submit evidence to
suggest that the use of these factors was a pretext, that Trahey
had any animus toward plaintiff, or that he had singled her out
for a low ranking.
Finally, plaintiff points to the purported contradiction
between Trahey’s “very poor” ranking of plaintiff and her
promotion two years earlier, suggesting that it raises a triable
issue as to whether Trahey manipulated plaintiff’s low score to
create an excuse for her termination, when no legitimate
justification existed. But again, plaintiff submitted no evidence
to support her assertion, such as, for example, testimony showing
that Staples used a similar ranking system two years earlier
under which plaintiff was scored higher and earned the
promotion. Thus, plaintiff’s earlier promotion, without more,
failed to raise a triable issue on pretext.

F. Fourth and Seventh Causes of Action: Failure to Prevent
Discrimination, etc., and Wrongful Termination

Plaintiff agrees that her failure to prevent discrimination
and wrongful termination causes of action against Staples and
the parent are based upon the existence of an underlying FEHA
violation.12 Because she did not raise a triable issue as to any

12 Plaintiff did not allege or otherwise contend that she was
wrongfully terminated in violation of the public policies
underlying the EPA; she claimed that she was terminated for her

24
such underlying violation, those derivative claims against Staples
and the parent also fail.13

complaints about Clay’s sexual harassment in violation of
FEHA’s public policies against retaliation.

13 Plaintiff’s remaining challenges concerning the liability of
Staples and the parent for punitive damages under FEHA are
also dependent on plaintiff having a viable underlying FEHA
claim. Those issues are therefore mooted by our conclusion that
Staples and the parent are not liable to plaintiff under FEHA.

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 V. DISPOSITION

The judgment is reversed, and the matter is remanded with
directions to enter a new order denying summary adjudication on
plaintiff’s first cause of action against Staples for violation of the
EPA, but granting summary adjudication on plaintiff’s remaining
causes of action and claims for punitive damages. Plaintiff is
awarded costs on appeal.

KIM, J.

We concur:

RUBIN, P. J.

BAKER, J.

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Filed 10/18/22
CERTIFIED FOR PARTIAL PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

JOYCE ALLEN, B311426

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 19STCV08311)

STAPLES, INC., et al., ORDER MODIFYING
OPINION AND
Defendants and CERTIFYING OPINION FOR
Respondents. PARTIAL PUBLICATION

[NO CHANGE IN
JUDGMENT]

THE COURT:

Upon application of appellant and for good cause
appearing, it is ordered that the opinion filed September 20,
2022, shall be partially published in the Official Reports.

1
 Pursuant to California Rules of Court, rule 8.1105(b), this
opinion is certified for publication with the exception of
Discussion part B. 3., subparts b. and c., and parts C. through F.

RUBIN, P. J. BAKER, J. KIM, J.

2