Filed 3/6/23 McGuiness v. Chevron Shipping Company CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 ONE
PETER McGUINESS,
Plaintiff and Appellant,
A162527
v.
CHEVRON SHIPPING COMPANY, (Contra Costa County
LLC, Super. Ct. No. MSC17-01521)
Defendant and Respondent.
Appellant Peter McGuiness appeals from the trial court’s entry of
summary judgment in favor of respondent Chevron Shipping Company, LLC
(Chevron)1 on his claims that he was mistreated and laid off on the basis of
unlawful retaliation and age discrimination. We affirm the summary
adjudication of most of McGuiness’s causes of action, but we reverse the
summary adjudication of his whistleblower cause of action (Lab. Code,
§§ 98.6, 1102.5)2 to the extent that it alleges he was unlawfully retaliated
against by being involuntarily transferred to a new position in 2015.
The shipping company is a wholly owned subsidiary of Chevron
1
Corporation. References to Chevron are to the shipping company, not the
parent company.
All subsequent statutory citations are to the Labor Code unless
2
otherwise indicated.
1
I.
FACTUAL AND PROCEDURAL
BACKGROUND
Chevron is a marine shipping company, and it has an in-house safety-
management unit that includes auditors who assess Chevron ships and
facilities worldwide. The unit operates under Chevron’s Operational
Procedure System, which was developed to “create and maintain a safety[-
]management system to ensure that key tasks are optimally performed and
that best practices, procedures, and instructions are documented and
followed.” Chevron is required to have an in-house safety-management unit
and to perform ship audits under conventions such as the International
Management Code for the Safe Operation of Ships and for Pollution
Prevention (ISM) Code. In 2006, Chevron hired McGuiness, who was 53
years old at the time, to be a lead auditor.
This case involves three changes in McGuiness’s employment status.
The first was in spring 2012 when Chevron retooled its safety-management
unit to be the Operational Excellence/Health, Environment, and Safety
(OE/HES) Program. As part of the change, auditor positions were
consolidated, and McGuiness’s title was changed from lead auditor to
“OE/HES Superintendent.”
The second change occurred in April 2015 when McGuiness was
involuntarily transferred to a non-auditor position. And the third change
occurred around six months later, in October 2015, when McGuiness was laid
off under a company layoff plan. McGuiness claims that all these
employment changes were the result of wrongful retaliation (for reasons
discussed more fully below) and that his layoff also was the result of age
discrimination. Chevron maintains that the changes were for legitimate
business reasons.
2
McGuiness filed this action in 2017. In his operative complaint, he
asserted five causes of action: 1) whistleblower retaliation in violation of
sections 98.6 (retaliation for activities protected under the Labor Code) and
1102.5 (retaliation for reporting violations of law); 2) retaliation under
sections 6310 (retaliation for complaining about unsafe work conditions) and
6311 (retaliation for refusing to work in unsafe condition); 3) age
discrimination in violation of the Fair Housing and Employment Act (FEHA,
Gov. Code, § 12940, subd. (a)); 4) failure to prevent age discrimination under
the FEHA (Gov. Code, § 12940, subd. (k)); and 5) wrongful termination in
violation of public policy.
Chevron filed a motion for summary judgment or, in the alternative,
summary adjudication. The trial court granted the motion and entered
judgment in favor of the company.
II.
DISCUSSION
A. The Standard of Review to Assess the Order Granting Chevron’s
Motion for Summary Judgment.
Summary judgment may be entered 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).) For a defendant to meet
its initial burden when moving for summary judgment, it must demonstrate
“ ‘that a cause of action has no merit’ ” by showing either “ ‘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.’ ” (Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 849 (Aguilar).)
Once a defendant satisfies its initial burden, “the burden shifts to the
plaintiff . . . to show that a triable issue of one or more material facts exists
as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c,
3
subd. (p)(2).) A plaintiff cannot defeat that motion by relying on “assertions
that are ‘conclusionary, argumentative or based on conjecture and
speculation,’ but rather [is] required to ‘make an independent showing by a
proper declaration or by reference to a deposition or another discovery
product that there is sufficient proof of the matters alleged to raise a triable
question of fact.’ ” (Roberts v. Assurance Co. of America (2008)
163 Cal.App.4th 1398, 1404.) A proper declaration must be based on
personal knowledge and “must cite evidentiary facts, not legal conclusions or
‘ultimate’ facts.” (Hayman v. Block (1986) 176 Cal.App.3d 629, 639.) A mere
scintilla of evidence alone cannot defeat summary judgment. (See Martin v.
Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1735 [“The
purpose of the summary judgment procedure . . . is to identify those cases in
which there is no factual issue which warrants the time and cost of
factfinding by trial”].)
In evaluating a grant of summary judgment, we review the record de
novo, “liberally construing the evidence in support of the party opposing
summary judgment and resolving doubts concerning the evidence in favor of
that party.” (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460
(Miller).) If summary judgment was properly granted on any ground, we
affirm “regardless of the trial court’s stated reasons.” (Syngenta Crop
Protection, Inc. v. Helliker (2006) 138 Cal.App.4th 1135, 1155.) Although
summary judgment is no longer a disfavored procedure, “many employment
cases present issues of intent, and motive, and hostile working environment,
issues not determinable on paper, . . . [and] rarely appropriate for disposition
on summary judgment, however liberalized it be.” (Nazir v. United Airlines,
Inc. (2009) 178 Cal.App.4th 243, 286.)
4
A summary judgment is nonetheless presumed to be correct if the
appellant fails to meet the burden to affirmatively show error. (See
Claudio v. Regents of the University of California (2005) 134 Cal.App.4th 224,
252.) We are not obligated “ ‘ “to cull the record for the benefit of the
appellant.” ’ ” (Bains v. Moores (2009) 172 Cal.App.4th 445, 455.) When an
appellant asserts a point but fails to support it with reasoned argument and
appropriate legal and factual citations, we treat the point as forfeited.
(Tellez v. Rich Voss Trucking, Inc. (2015) 240 Cal.App.4th 1052, 1066.)
B. The Trial Court Improperly Granted Summary Adjudication on the
First Cause of Action to the Extent It Alleges that McGuiness’s Job
Transfer Was Retaliatory.
1. The Standards in Assessing Retaliation Claims Under the
Labor Code.
An employer may presumptively terminate an employee at will and for
no reason. (§ 2922; see also Guz v. Bechtel National, Inc. (2000) 24 Cal.4th
317, 350 (Guz).) But an employer may not retaliate against an employee for
engaging in certain legally protected conduct. Section 98.6 prohibits an
employer from retaliating against an employee “because of the exercise . . . of
any rights afforded him or her” or because the employee engaged in conduct
described in “Chapter 5 (commencing with Section 1101).” (§ 98.6, subd. (a).)
Included in Chapter 5 is section 1102.5, which prohibits an employer from
retaliating against an employee for disclosing information “if the employee
has reasonable cause to believe that the information discloses a violation [of
law], regardless of whether disclosing the information is part of the
employee’s job duties.” (§ 1102.5, subd. (b).) The section also prohibits an
employer from retaliating against an employee “for refusing to participate in
an activity that would result in a violation” of law. (§ 1102.5, subd. (c).)
5
The trial court analyzed this first cause of action under the analytical
framework established by McDonnell Douglas Corp. v. Green (1973) 411 U.S.
792 (McDonnell Douglas), used for discrimination claims. That is, the trial
court analyzed whether McGuiness had established a prima facie case of
retaliation; whether Chevron provided a legitimate, nonretaliatory
explanation for its actions; and whether McGuiness showed that the
explanation was pretextual. After McGuiness appealed and filed his opening
brief, our Supreme Court clarified that whistleblower retaliation claims
under section 1102.5 are analyzed under the standard set forth in the Labor
Code, and not under the burden-shifting analysis of McDonnell Douglas.
(Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 707
(Lawson).) The parties apparently do not dispute that we apply the statutory
framework for both whistleblower statutes in the first cause of action
(§§ 98.6, subd. (a), 1102.5.)
Section 1102.6 sets forth the standards to assess retaliation claims
brought under section 1102.5. “In a civil action . . . brought pursuant to
Section 1102.5, once it has been demonstrated by a preponderance of the
evidence that an activity proscribed by Section 1102.5 was a contributing
factor in the alleged prohibited action against the employee, the employer
shall have the burden of proof to demonstrate by clear and convincing
evidence that the alleged action would have occurred for legitimate,
independent reasons even if the employee had not engaged in activities
protected by Section 1102.5.” (§ 1102.6; see Lawson, supra, 12 Cal.5th at
p. 718.) Accordingly, McGuiness “does not need to show that [Chevron’s]
nonretaliatory reason was pretextual. Even if [Chevron] had a genuine,
nonretaliatory reason for its adverse action, [McGuiness] still carries the
burden assigned by statute if it is shown that [Chevron] also had at least one
6
retaliatory reason that was a contributing factor in the action.” (Lawson, at
pp. 715–716.)
As the trial court noted, whether retaliation is prohibited under
section 1102.5 depends in part on the nature of the employee’s activity that
gave rise to the alleged retaliation. When the activity at issue is disclosing
information about a potential violation of the law, the employer is prohibited
from retaliating if the employee had reasonable cause to believe the
disclosure revealed an illegality. (§ 1102.5, subd. (b).) In contrast, when the
activity is refusing to participate in a task, the employer is prohibited from
retaliating only if the employee’s participation actually would have been
illegal, regardless of whether the employee had reasonable cause to believe it
was. (§ 1102.5, subd. (c).) “Unlike retaliation under subdivision (b) of section
1102.5, . . . section 1102.5(c) requires a showing that the activity in question
actually would result in a violation or noncompliance with a statute, rule, or
regulation. That is a quintessentially legal question.” (Nejadian v. County of
Los Angeles (2019) 40 Cal.App.5th 703, 719 (Nejadian).) “Of course, for the
court to be able make the legal determination, the employee must identify
what specific activity he or she refused to participate in and what specific
statute, rule, or regulation would be violated by that activity.” (Ibid.)
In sum, for McGuiness to prevail on his first cause of action, he must
prove he disclosed information he believed to be a violation of law (§ 1102.5,
subd. (b)), refused to participate in an activity that would result in a violation
of law (§ 1102.5, subd. (c)), or made a type of complaint described in
section 98.6, and that his action was a contributing factor when Chevron
retaliated by taking an adverse employment action against him (§ 98.6,
subd. (a)). To defeat the cause of action on summary judgment, Chevron thus
needed to show that McGuiness did not engage in one of the described
7
activities, that no adverse action was taken against him, or that it would
have taken the action against him even if he had not engaged in protected
activities. (Aguilar, supra, 25 Cal.4th at p. 849.)
With these standards in mind, we turn to the facts presented on
summary judgment and whether there was a triable issue of material fact as
to whether McGuiness suffered retailiation.
2. Of the Three Potentially Adverse Actions Against McGuiness
After He Raised Concerns, Only One Raises a Triable Issue of
Fact for Retaliation.
While he was employed at Chevron, McGuiness at different times
raised various concerns, including the following: First, in April 2011, 2012,
and 2013, he audited Chevron’s San Ramon facilities and identified various
issues. Second, after the OE/HES program was created, he complained that
auditors were assigned both auditing and superintendent functions and that
the program was understaffed. Third, he objected that Chevron had
contracted with an outside consulting firm to perform some audits. He
believed the firm had a conflict of interest because the president of Chevron
was a member of the board of directors of the firm’s parent company. And
lastly, in October and November 2014, he audited two ships and identified
various issues.
As for whether Chevron took adverse action against McGuiness over
these concerns, he argues he was subjected to “a string of retaliatory
decisions,” including having a “prestigious work assignment . . . taken away”
and not being allowed to continue updating and revising an auditing manual.
But we agree with the trial court that he presented only “[t]hree potential
adverse employment decisions” that could amount to a cognizable adverse
action. As we have mentioned, these decisions were changing McGuiness’s
title and duties in 2012, transferring him to a non-auditor position in April
8
2015, and laying him off a few months later in October 2015. These are the
only events that had the potential of having “materially affect[ed] the terms,
conditions, or privileges of employment.” (Yanowitz v. L’Oreal USA, Inc.
(2005) 36 Cal.4th 1028, 1051 (Yanowitz).) “In the case of an institutional or
corporate employer, the institution or corporation itself must have taken
some official action with respect to the employee, such as hiring, firing,
failing to promote, adverse job assignment, significant change in
compensation or benefits, or official disciplinary action.” (Roby v. McKesson
Corp. (2009) 47 Cal.4th 686, 706, italics omitted.) “ ‘A change that is merely
contrary to the employee’s interests or not to the employee’s liking is
insufficient.’ ” (McRae v. Department of Corrections & Rehabilitation (2006)
142 Cal.App.4th 377, 386.)
We therefore discuss in more detail each of these employment events.
a. McGuiness’s 2012 Change in Title and Duties Was Not
Connected to Any Report McGuiness May Have Made.
We agree with the trial court that no triable issue was established
regarding McGuiness’s claim that he was unlawfully retaliated against in
2012 when his title and duties were changed. After the OE/HES
Superintendent Program was established in 2012, employees, including
McGuiness, who had previously performed only auditor functions—i.e.,
identified safety and other violations or “nonconformities”—were also tasked
with performing so-called superintendent functions, which required
interacting with those who were being audited to help resolve concerns, share
best practices, and provide training. Even assuming the questionable
premise that this change materially affected the terms, conditions, or
privileges of McGuiness’s employment, the undisputed evidence showed that
the change was the result of the establishment of the OE/HES
9
Superintendent Program. McGuiness’s title and duties may have changed,
but so did the title and duties of other similarly situated employees. The
change, in other words, was “structural (across-the-board),” and McGuiness
did not contend otherwise. No evidence was presented that the OE/HES
Superintendent Program was established for any reason related to
McGuiness personally or anything he may have said or done.
As a result, Chevron negated the possibility that a trier of fact could
find that any alleged protected activities were a contributing factor in the
change in his title and duties. (§ 1102.6.)
b. Triable Issues Remain on whether McGuiness’s 2014
Job Transfer Was Retaliatory.
i. Additional facts.
After McGuiness completed the audit of the ship the Oregon Voyager in
October 2014, a fleet manager, Phil Davies, sent McGuiness an email, telling
McGuiness that he took “the allegations contained within [the audit’s]
‘[o]bservations’ very seriously.” Davies stated, “Many of the items are within
the [Vessel Management Team’s] control and more appropriate systems exist
for voicing concerns, particularly given the Oregon is one of our most visited
vessels within the fleet.”
A meeting was subsequently held in which McGuiness, Davies, and
McGuiness’s supervisor (Laura Porter) participated. According to
McGuiness, Davies said McGuiness’s audit observations were “inappropriate”
and should have been communicated directly to him instead of being included
in the report. Davies expressed a concern that the audit findings were
viewable by regulators, and he did not want to “answer questions from
regulators” about them. Davies later testified that the nonconformities to
which he was referring were matters that had been noted in previous audits,
10
were already being addressed, and related to company-wide issues, not issues
specific to the Oregon Voyager. In his “mind, there was no need for those
[nonconformities] to be included in [audit] observations related to a specific
vessel.”
In April 2015, McGuiness was transferred to be “Clearance Specialist,”
a non-auditor position. McGuiness characterizes this as a “forcibl[e] transfer”
that amounted to “a de facto demotion” connected to the Oregon Voyager
audit. A clearance specialist performs “third-party marine risk evaluation
assessments” to determine whether a “ship [is] acceptable for the nominated
transaction.” The transfer did not affect his compensation or benefits.
Chevron produced considerable evidence that the transfer was for
legitimate business reasons, mainly pertaining to McGuiness’s lackluster
performance as an OE/HES Superintendent. Shortly after the OE/HES
Program was created, Porter become the unit’s manager and McGuiness’s
supervisor. On several occasions, she raised performance concerns with
McGuiness. Her primary concern was that McGuiness resisted performing
the superintendent functions of his job, including meeting with those he
audited and sharing expertise and solutions. She was also concerned with
the way he managed his time while traveling.
In March 2014, Porter gave McGuiness a performance review with a
ranking of “2-” (apparently, a two minus) for his 2013 performance, meaning
he met “some, but not all” expectations. McGuiness claims this was the
lowest performance ranking he ever received. Porter wrote that McGuiness
did not meet all his job expectations in 2013 and that he needed to be “more
resourceful and creative when scheduling ship visits with the fleet teams to
ensure [he] meet[s] management expectations for completing OE/HES
Superintendent program visits during the year,” to share his “extensive
11
knowledge to help identify opportunities for improvement and to initiate
change, offer support to solve issues, get involved and don’t wait until [he
was] asked for help,” and to make “requested ‘informal drop-ins’ to OE/HES
Manager, Fleet Manager and AFMs following ship visits.”
For McGuiness’s 2014 performance review, Porter raised McGuiness’s
rating to a 2, but she was still concerned that he continued to resist the
superintendent functions of his job. He was told to “[b]e more vocal and
visible in identifying areas for improvement within our group, to our program
and to overall Shipping operations. Assist others by making
recommendations to close the gaps you identify in your role as an OE/HES
Superintendent. Provide in-person feedback to the Fleet Manager when
returning from the ships -- do not rely solely on email or the “Observation”
section in an audit report to capture those areas that are much better
discussed in person.
Porter generally believed McGuiness “was not fulfilling the full,
intended scope of the OE/HES Superintendent position.” Although she told
him he was an OE/HES superintendent, not an auditor, “he was very, very
resistant to change” and “was unwilling to do the additional tasks” related to
the superintendent functions. He seemed to believe that helping to solve
problems “wasn’t his role” or “something an auditor would do.” When
McGuiness neglected superintendent tasks, he “would give excuses and spin
a tale about the work when he simply did not want to do it because he did not
like it.” In Porter’s words, McGuiness “did some things well,” “some things
not very well,” and “some things he just refused to do completely.” In
contrast to McGuiness, other OE/HES superintendents “really embraced” the
superintendent role,” developed “good relationship[s]” with people on the
ships, and the unit “got a lot of good feedback on the work that they were
12
doing helping solve issues.” Porter believed that this “just wasn’t something
[McGuiness] was interested in doing.”
ii. Analysis.
We begin by concluding, as did the trial court, that some of
McGuiness’s conduct upon which his claim is based was not protected
activity. This includes McGuiness’s disinclination and refusal to engage in
superintendent functions. His resistance to performing these functions was
not protected under section 1102.5, subdivision (c), because he has not shown
that performing them would have required him to violate the law. (§ 1102.6.)
Thus, this resistance cannot support his claim for wrongful retaliation, and
Chevron was within its rights to transfer McGuiness to the extent it did so
because of it.
We are also unconvinced that much of McGuiness’s conduct in
disclosing information was protected under section 1102.5, subdivision (b).
For the most part, McGuiness has identified neither the specific disclosure
that allegedly contributed to the transfer, nor the specific statute, rule, or
regulation that was violated or for which he had reasonable cause to believe
was violated. (See Nejadian, supra, 40 Cal.App.5th at p. 719.) In further
proceedings, McGuiness must show there was reasonable cause for him to
believe that a specific disclosure involved a violation of the law. (§ 1102.5.
subd. (b).)3
3The trial court made some findings bearing on this question. It found
McGuiness had “fail[ed] to show a violation of the ISM,” or that the ISM Code
was a “state or federal statute” or a “local, state, or federal rule or
regulation.” It also found that McGuiness had admitted that the “use of
contract auditors did not violate any particular” law. In addition, McGuiness
has not seriously maintained that his complaint about the OE/HES program
being understaffed was a protected activity.
13
Still, McGuiness presented some evidence that, by liberally construing
and resolving doubts in his favor, raise the possibility he could make such a
showing. (See Miller, supra, 36 Cal.4th at p. 460.) We are sympathetic to the
statements by Chevron’s counsel at oral argument that McGuiness’s
declaration submitted in opposition to summary judgment was thin on
specifics regarding what McGuiness believed to be violations. But on this
record, we cannot determine whether McGuiness’s audit of the Oregon
Voyager disclosed legal violations, or merely deviations from internal
standards or best practices. Nor can we determine whether McGuiness had
reasonable cause to believe his audit disclosed legal violations. (§ 1102.5,
subd. (b).) We therefore cannot rule out the possibility that a trier of fact
could conclude that McGuiness had reasonable cause to believe he was
disclosing information about an illegality, and that his disclosure was a
contributing factor in the decision to transfer him. (§ 1102.6.) And we
further cannot rule out the possibility that a trier of fact could conclude that
the transfer would not have otherwise occurred for legitimate, independent
reasons. (Ibid.)
We therefore reverse the trial court’s summary adjudication of the first
cause of action to the extent it alleges that McGuiness’s transfer was
unlawfully retaliatory. In doing so, we reiterate that we do not decide
whether the transfer constituted a cognizable adverse employment action by
having materially affected the terms, conditions, or privileges of McGuiness’s
employment. (See Yanowitz, supra, 36 Cal.4th at p. 1051.) Thus, we leave it
to be further developed whether McGuiness engaged in protected activity,
whether it was a contributing factor in the decision to transfer him, and
whether the transfer constituted a cognizable adverse employment action.
14
c. There Is No Triable Issue of Fact Whether McGuiness’s
Layoff Amounted to Retaliation.
i. Additional facts
The layoff plan was implemented in August 2015 after a steep drop in
oil prices affected Chevron’s profits and the company wanted to reduce costs
and increase efficiency. In the first step of the plan, positions were identified
that would be retained, combined, or eliminated. In the next step, all affected
employees were required to apply for a position, “and even incumbent
employees were required to reapply for their existing position[s].” These
employees were considered for the positions in which they expressed an
interest. Successful candidates were decided by “selection-team members
and job owners.”
As part of the layoff process, McGuiness applied for the following four
positions, in order of his stated priority: 1) clearance specialist (the position
he currently held); 2) OE/HES Superintendent (the position from which he
had been transferred); 3) OE/HES program manager; and 4) manager of the
“Marine EE L&D [Leadership and Development].” He was not selected for
any of these positions, and in the trial court proceedings Chevron presented
the reasons why he was not chosen. McGuiness was not selected for the
clearance specialist position because it was filled by another incumbent
clearance specialist who was seen as more productive and engaged than
McGuiness. He was not selected for the OE/HES Superintendent Position
because he had resisted performing the superintendent functions of the job
when he held it, and a person deemed more qualified was chosen. He was not
selected for the OE/HES program manager position—a job that would have
been a promotion—because he had not been a good fit in the unit as an
OE/HES Superintendent and another employee who was already working at
15
the classification level of a program manager was deemed better qualified.
Lastly, he was not selected for the Marine EE L&D position—another job
that would have been a promotion—because the person chosen was deemed
more qualified and experienced and had received exceptional performance
ratings. McGuiness had never held a supervisor or management position at
Chevron, and he was not rated among the top four candidates for that
position. McGuiness submitted no admissible evidence challenging Chevron’s
stated reasons for selecting the job candidates who were ultimately chosen.
Once McGuiness failed to obtain a position in the layoff process, he
became a “surplus” employee. Chevron gave him two months of paid time off
to seek another position through a “redeployment” process, which allowed
surplus employees to apply for other company openings. McGuiness did not
apply for any other job, and he was laid off on October 23.
ii. Analysis.
We agree with the trial court that no triable issue was established
regarding McGuiness’s claim that the layoff was retaliatory. Even assuming
that McGuiness sufficiently demonstrated a triable issue on whether a
contributing factor in the decision to lay him off was his having engaged in
protected activity, Chevron sufficiently negated any possibility that a trier of
fact could conclude that the layoff would not have “occurred for legitimate,
independent reasons even if [McGuiness] had not engaged in activities
protected by Section 1102.5.” (§ 1102.6.)
To begin with, McGuiness neither suggested nor presented any
evidence to support a theory that his protected activity played a role in the
initiation of the layoff plan itself, which involved hundreds of positions. The
uncontroverted evidence was that the plan was undertaken for business
reasons wholly unrelated to McGuiness.
16
Furthermore, as to the four positions for which McGuiness applied
during the layoff process, Chevron negated the possibility that a trier of fact
could find that he might have been selected for one of them absent his having
engaged in protected activity. (See § 1102.6.) McGuiness asserts the
selection committee made choices “based upon information [it] received from
sources outside of the selection committee[, . . . including] ‘negative
information’ from his former supervisor Laura Porter. This negative
information was regarding [McGuiness’s] practice of not meeting with
auditees prior to submitting audit reports, because he felt it was a conflict of
interest which offended the ISM Code.” But we have already rejected
McGuiness’s claim that his failure to meet with people he was auditing was
protected activity. And Chevron presented substantial, and unrebutted,
evidence that McGuiness was not the best candidate for any of the positions.
Thus, Chevron negated the possibility that a trier of fact could conclude that
McGuiness would not have been laid off absent potentially protected activity.
(See Lawson, supra, 12 Cal.5th at pp. 717–718 [employers can raise same-
decision defense on summary judgment]; Lyons v. Security Pacific Nat. Bank
(1995) 40 Cal.App.4th 1001, 1014 [conclusory assertions insufficient to raise
an issue of fact].)
C. The Trial Court Properly Granted Summary Adjudication on the
Second Retaliation Cause of Action Based on Sections 6310 and 6311,
and McGuiness Forfeited His Argument to the Contrary.
McGuiness’s second cause of action also alleged retaliation, this one for
purported violations of section 6310, which prohibits an employee for
retaliating against an employee for complaining about unsafe work
conditions, and section 6311, which prohibits retaliation against an employee
for refusing to work under unsafe conditions. We agree with the trial court
17
that summary adjudication in favor of Chevron on this cause was proper, and
McGuiness has forfeited any argument to the contrary.
No meaningful evidence was presented that McGuiness complained
about the safety of his working conditions, and no evidence was presented
that he refused to work under unsafe conditions, much less was retaliated
against for having done so. Accordingly, no triable issue exists, as Chevron
negated the possibility that a trier of fact would find that a contributing
factor in McGuiness’s 2015 involuntary transfer and termination was his
participation in protected activity. (§ 1102.6.) As an inevitable corollary,
Chevron also negated the possibility that McGuiness’s protected activity was
a substantial or motivating factor in the 2015 involuntary transfer and
termination.4
Furthermore, McGuiness forfeited his claims under sections 6310 and
6311. In his appellate briefing, he asserts merely that his pointing out
nonconformities and his complaints about understaffing “could” have resulted
in unsafe working conditions. This assertion is undeveloped and cursory, and
it amounts to a forfeiture of his claims. When an party asserts a point “ ‘ “but
fails to support it with reasoned argument and citations to authority, we
treat the point as waived.” ’ [Citation.] ‘We are not bound to develop
4 Some retaliation claims are assessed “under the burden-shifting
framework of Mt. Healthy City Board of Ed. v. Doyle (1977) 429 U.S. 274 [ ],
which closely resembles the section 1102.6 framework. Mt. Healthy assigns
to plaintiffs the initial burden of showing that conduct protected by the First
Amendment was a ‘ “substantial” ’ or ‘ “motivating” ’ factor in an employer’s
adverse employment decision, then assigns to the defendant the burden of
showing it would have made the same decision in the absence of the protected
conduct.” (Lawson, supra, 12 Cal.5th at p. 714.) Because McGuiness cannot
satisfy the standard under either framework, we need not decide whether the
one under section 1102.6 or the one under Mt. Healthy applies to claims
under sections 6310 and 6311.
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appellants’ argument for them. [Citation.] The absence of cogent legal
argument or citation to authority allows this court to treat the contention as
waived.’ ” (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th
939, 956.)
D. The Trial Court Properly Granted Summary Adjudication on the
Third Cause of Action Based on Alleged Age Discrimination Under the
FEHA.
1. The Standards in Assessing Claims of Age Discrimination
Under the FEHA.
McGuiness’s third cause of action was a claim for age discrimination
under the FEHA. (Gov. Code, § 12940, subd. (a).) “[T]o make out a prima
facie case of age discrimination under the FEHA, a plaintiff must present
evidence that the plaintiff (1) is over the age of 40; (2) suffered an adverse
employment action; (3) was performing satisfactorily at the time of the
adverse action; and (4) suffered the adverse action under circumstances that
give rise to an inference of unlawful discrimination.” (Sandell v. Taylor-
Listug, Inc. (2010) 188 Cal.App.4th 297, 321.) “Because of the similarity
between state and federal employment discrimination laws, California courts
look to pertinent federal precedent when applying our own statutes.” (Guz,
supra, 24 Cal.4th at p. 354.)
In assessing a claim of age discrimination, California courts apply the
McDonnell Douglas test, which “reflects the principle that direct evidence of
intentional discrimination is rare, and that such claims must usually be
proved circumstantially . . . . [B]y successive steps of increasingly narrow
focus, the test allows discrimination to be inferred from facts that create a
reasonable likelihood of bias and are not satisfactorily explained.” (Guz,
supra, 24 Cal.4th at p. 354.) Under this test, the plaintiff has the initial
burden of producing evidence that establishes a prima facie case of
19
discrimination. (Ibid.) If the plaintiff establishes a prima facie case, creating
a “presumption of discrimination,” the burden shifts to the employer to
provide “ ‘a legitimate, nondiscriminatory reason for the challenged action.’ ”
(Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 860–861.)
Under the third step of the McDonnell Douglas framework, “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.’ ” (Serri, at p. 861.) The employer’s burden to provide
a legitimate nondiscriminatory reason is one of production, not persuasion,
and the employer “ ‘ “need not persuade the court that it was actually
motivated by the proffered reasons . . . [but only] raise[ ] a genuine issue of
fact as to whether it discriminated against the [plaintiff].” ’ ” (Caldwell v.
Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 201 (Caldwell).)
Once the employer satisfies this burden, the presumption of discrimination
created by a prima facie case “ ‘ “drops from the case” and the factfinder must
decide upon all of the evidence before it whether [the] defendant intentionally
discriminated against [the] plaintiff. [Citation.] In short, the trier of fact
decides whether it believes the employer’s explanation of its actions or the
[plaintiff’s].’ ” (Ibid.)
The McDonnell Douglas framework is “an analytical tool for use by the
trial judge in applying the law, not a concept to be understood and applied by
the jury in the factfinding process.” (Caldwell, supra, 41 Cal.App.4th at
p. 202.) “[I]n the usual case, the first two prongs of the [framework], that is,
whether the plaintiff has stated a prima facie case of discrimination and
whether the employer has rebutted that prima facie showing, will be tested
prior to trial,” such as through a motion for summary judgment. (Ibid.)
Because this type of framework is an analytical tool for evaluating the legal
20
merits of a discrimination claim, it “does not affect the procedural rule . . .
that imposes on a defendant the initial burden when that party seeks
summary [judgment].” (Cornell v. Berkeley Tennis Club (2017)
18 Cal.App.5th 908, 926.)
2. Additional Facts.
McGuiness was in his 60s at the time he was laid off, and he had
worked at the company for about nine years. Chevron’s policy in
implementing the layoff process was “to select the best candidate for each
job,” and it “expressly and strictly prohibited consideration of any protected
characteristic such as age, gender, race, religion, etc., and any protected
activities.” According to Chevron, the ages of the affected employees were not
considered. McGuiness conceded that no one at Chevron made any offensive
comment about his or anyone else’s age. He also admitted he never told
anyone at Chevron that he believed he was mistreated because of his age.
About 231 employees, ranging in ages from 23 to 73, participated in the
layoff process. Twenty three employees were not selected for positions during
the layoff process itself, but 11 of them found other jobs at Chevron through
the redeployment process. In all, 12 former employees, including McGuiness,
did not find alternative positions, and they were all over the age of 40.
3. Analysis.
McGuiness presented evidence that he was in the protected class,
suffered an adverse employment action by being laid off, and was
competently performing his duties before being laid off. But he presented no
meaningful evidence to show that his discharge was the result of
discriminatory animus or that Chevron’s proffered reason for his discharge
was pretextual. (See Guz, supra, 24 Cal.4th at p. 362 [summary judgment
proper when, “given the strength of the employer’s showing of innocent
21
reasons, any countervailing circumstantial evidence of discriminatory motive,
even if it may technically constitute a prima facie case, is too weak to raise a
rational inference that discrimination occurred”].)
The only evidence McGuiness presented was that the 12 former
employees (including McGuiness) who were laid off and not hired through the
redeployment process were over the age of 40, ranging in age from 44 to 72.
We agree with the trial court that this “bare statistic, without context, does
not amount to substantial evidence of pretext” and “does not lead to an
inference of discriminatory animus.” As Chevron points out, of the 231
employees who were retained, 181 were over the age of 40, ranging in age
from 40 to 73. As the company also points out, 94 percent of the employees
over the age of 40 that participated in the layoff process were retained.
On appeal, McGuiness argues for the first time that he is entitled to
relief under a theory of disparate impact. “Age discrimination claims can be
advanced under a disparate treatment or disparate impact theory. To
establish a disparate treatment claim, a plaintiff must prove the defendant
intentionally discriminated. [Citation.] To establish a disparate impact
claim, a plaintiff need not prove intent to discriminate, but must prove that
‘regardless of motive, a facially neutral employer practice or policy, bearing
no manifest relationship to job requirements, in fact had a disproportionate
adverse effect on members of the protected class.’ ” (Mahler v. Judicial
Council of California (2021) 67 Cal.App.5th 82, 112, italics omitted.) Still,
“ ‘disparate-impact liability has always been properly limited in key respects’
to avoid the serious problems that would ensue ‘if such liability were imposed
based solely on a showing of a statistical disparity.’ ” (Ibid.)
Because McGuiness did not raise a disparate impact theory below, he
has forfeited the claim. (See, e.g., Rosenfeld v. Abraham Joshua Heschel Day
22
School, Inc. (2014) 226 Cal.App.4th 886, 894.) McGuiness pleaded that
Chevron discriminated against him by terminating his employment on the
basis of his age. He did not plead that Chevron had a facially neutral policy
that bore no relationship to the job requirements and had a disproportionate
adverse effect on older employees. (Guz, supra, 24 Cal.4th at p. 354, fn. 20.)
The trial court properly granted summary adjudication on McGuiness’s
third cause of action based on age discrimination because McGuiness failed to
create triable issues of sufficient circumstances that could give rise to an
inference of unlawful discrimination or that Chevron’s reasons for his layoff
were pretextual.
E. The Trial Court Properly Granted Summary Adjudication on
McGuiness’s Fourth Cause of Action Because It Was Derivative of His
Age-Discrimination Claim.
In his fourth cause of action, McGuiness alleged that Chevron failed to
prevent age discrimination in violation of Government Code section 12940.
In light of our conclusion that the trial court properly granted summary
adjudication in favor of Chevron on McGuiness’s age-discrimination claim, we
affirm the trial court’s grant of summary adjudication on McGuiness’s fourth
cause of action because it is derivative of the age-discrimination claim. (See
Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1318 [claim for
failure to prevent sex discrimination under section 12940 cannot proceed
when no actionable sex discrimination found].)
F. The Trial Court Properly Granted Summary Adjudication on
McGuiness’s Fifth Cause of Action.
We also affirm the trial court’s summary adjudication of McGuiness’s
fifth cause of action because we have affirmed the trial court’s summary
adjudication of McGuiness’s claims that he was wrongfully discharged. In his
23
fifth cause of action, McGuiness alleged that his discharge violated public
policy under Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167. Tameny
held that a discharged employee may maintain a tort action against a former
employer and recover damages when the discharge violated fundamental
principles of public policy. (Id. at p. 178.)
A Tameny claim, however, is only cognizable when an employee is
wrongfully “fired, discharged, or terminated.” (Daly v. Exxon Corp. (1997)
55 Cal.App.4th 39, 45.) Because we have concluded that McGuiness was not
wrongfully laid off for retaliatory or discriminatory reasons, we affirm the
trial court’s summary adjudication of his fifth cause of action.
III.
DISPOSITION
The judgment is affirmed in part and reversed in part. The summary
adjudication of McGuiness’s second, third, fourth, and fifth causes of action is
affirmed. The summary adjudication of McGuiness’s first cause of action is
reversed to the extent it alleges that McGuiness was unlawfully retaliated
against by being involuntarily transferred to a new position in 2015. The
parties shall bear their own costs on appeal.
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_________________________
Humes, P.J.
WE CONCUR:
_________________________
Margulies, J.
_________________________
Devine, J.*
*Judge of the Superior Court of the County of Contra Costa, assigned
by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
McGuiness v. Chevron Shipping Company, LLC, A162527
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