Curran v. Sch. of the Sacred Heart-S.F.

Full title: CELINE CURRAN, Plaintiff and Respondent, v. SCHOOLS OF THE SACRED…

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO

Date published: Jun 5, 2018

No. A142615 (Cal. Ct. App. Jun. 5, 2018)

Opinion

A142615 A143646

06-05-2018

CELINE CURRAN, Plaintiff and Respondent, v. SCHOOLS OF THE SACRED HEART-SAN FRANCISCO, Defendant and Appellant.

Richman, J.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City and County Super. Ct. No. CGC-11-514954)

In 1977, Celine Curran began employment at the Schools of the Sacred Heart (School), where she remained until May 2011, a 37-year career, 29 years of which were as dean of students. That career included universally positive performance reviews, and not one complaint against Curran—not until late 2010, shortly after she filed a September 2010 complaint for discrimination against Gordon Sharafinski, director of the School. Sharafinski's response upon learning of the complaint was to set up a December meeting with School officials—most of whom he had hired or promoted—at which he solicited negative feedback about Curran. That feedback came, and in late January Curran was given a memorandum entitled "Your Performance" listing several "incidents" relating back to the very first week of school, not one of which had even been brought to Curran's attention—and the majority of which Curran said were untrue. Curran took issue with this, in response to which she received a March 2 "Written Warning." Two months later, May 3, Curran was told she would not be offered a contract for the following school year, ending her career.

Curran sued the School, alleging claims for age discrimination, gender discrimination, and retaliation in violation of California's Fair Employment and Housing Act (FEHA), and for wrongful termination, later adding Labor Code claims for unpaid accrued vacation. The trial court granted summary adjudication on Curran's gender discrimination and retaliation claims. Curran's claims for age discrimination and vacation pay proceeded to a jury trial, which rejected her age discrimination claim but awarded her compensation for accrued vacation time. The trial court later awarded Labor Code penalties, attorney fees, and costs.

Both sides appeal. Curran contends that summary adjudication on the retaliation claim was error. The School contends the vacation pay award is not supported by substantial evidence, and also challenges the penalties and the award of attorney fees and costs. We conclude that Curran's appeal has merit, and that the School's does not. We thus reverse in part and remand the matter for further proceedings to allow Curran to pursue her retaliation claim.

THE GENERAL PROCEDURAL BACKGROUND

We set forth here the general background. More detail will be set forth below in connection with the particular event or issue to which that detail pertains.

In October 2011, Curran filed a complaint against the School alleging claims for age discrimination, gender discrimination, and retaliation in violation of FEHA, failure to prevent discrimination, and wrongful termination.

In November 2012, the School moved for summary judgment or, in the alternative, summary adjudication.

In January 2013, the School served a statutory offer to compromise under Code of Civil Procedure section 998 (998 offer). The 998 offer offered $65,000 in exchange for a dismissal with prejudice and a waiver of costs and attorney fees.

In April 2013, the trial court filed its order granting summary adjudication on Curran's claims for gender discrimination and retaliation but denying it as to the age discrimination and wrongful termination claims.

Meanwhile, with the case then set for trial for mid-March, on March 13 the School filed 17 motions in limine (MIL). MIL No. 10 sought to exclude evidence related to claims for unpaid vacation under the Labor Code because those claims were not formally pleaded in the complaint. Curran filed opposition, which included a request for leave to amend the complaint to formally add Labor Code claims.

The trial date was continued, and MIL No. 10 and Curran's request to amend were not heard until July 16. At that hearing, Curran's counsel explained it was only through inadvertence that the Labor Code claims were not formally pleaded, representing that she only discovered the complaint did not state a cause of action for unpaid vacation when she received MIL No. 10. Curran's counsel also asserted that both parties were aware of Curran's Labor Code claims since at least January 2012 (when interrogatory responses had been served), and that counsel for the School questioned Curran about her Labor Code claims at her March deposition. Counsel for the School argued that amendment should not be permitted because it would increase the value of the case from $17,500 in hard damages to over $200,000. Leave to amend was granted.

Curran abandoned the wrongful termination claim, and her claims for age discrimination and unpaid vacation pay proceeded to jury trial. It began on October 21, lasted some six weeks, and on December 11, the jury returned its verdict. The jury, by a nine-to-three vote, found against Curran on her age discrimination claim; by unanimous vote, found for Curran on her claim for unpaid vacation, awarding 40 days' vacation; and by an eleven-to-one vote held that the School's failure to pay Curran her vacation pay was "willful[]," thereby entitling Curran to penalty wages. The vacation days awarded was ultimately valued at $16,278.40 plus $12,208.50 in waiting time penalties.

As the prevailing party, Curran filed a motion for attorney fees and also filed a memorandum of costs. The School filed opposition to the motion, and a motion to tax. It also sought its own costs based on the 998 offer. Those matters came on for three lengthy hearings, following which the court entered a detailed order that held Curran was entitled to her reasonable attorney fees pursuant to Labor Code section 218.5, further found the hourly rates of counsel and number of hours requested were reasonable, and granted Curran's motion for attorney fees subject to a reduction to account for Curran's limited success. The court also awarded Curran her costs (with one exception) and denied the School's request for costs.

Judgment was entered on May 20, 2014, from which both sides appealed. An amended judgment was entered on October 28, from which both sides also appealed.

DISCUSSION

Curran's Appeal—No. A143646

The Principles Governing Summary Adjudication , Especially in a Retaliation Case

Curran's appeal contends that summary adjudication on her retaliation claim was error. We review that appeal under settled principles, those we confirmed in Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243 (Nazir):

"On appeal '[w]e review a grant of summary judgment de novo; we must decide independently whether the facts not subject to triable dispute warrant judgment for the moving party as a matter of law. [Citations.]' (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348.) Put another way, we exercise our independent judgment, and decide whether undisputed facts have been established that negate plaintiff's claims. (Romano v. Rockwell Internat., Inc. [(1996)] 14 Cal.4th [479,] 487.) As we put it in Fisherman's Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 320: '[W]e exercise an independent review to determine if the defendant moving for summary judgment met its burden of establishing a complete defense or of negating each of the plaintiff's theories and establishing that the action was without merit.' (Accord, Certain Underwriters at Lloyd's of London v. Superior Court (2001) 24 Cal.4th 945, 972.)

"But other principles guide us as well, including that '[w]e accept as true the facts . . . in the evidence of the party opposing summary judgment and the reasonable inferences that can be drawn from them.' (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 67.) And we must ' "view the evidence in the light most favorable to plaintiff[] as the losing part[y]" and "liberally construe plaintiff['s] evidentiary submissions and strictly scrutinize defendant['s] own evidence, in order to resolve any evidentiary doubts or ambiguities in plaintiff['s] favor." ' (McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 96-97.)" (Nazir, supra, 178 Cal.App.4th at pp. 253-254.)

Nazir reversed the summary judgment against Nazir, whose claims included retaliation. Doing so, we cited, discussed, and relied on many principles and observations pertinent here. Nazir has been cited and discussed several hundred times in its eight-year existence, including by our Supreme Court, numerous Courts of Appeal, Witkin, Cal.Jur.3d, several Rutter Group publications, leading commentaries, and law review articles. Indeed, Nazir is cited three times in the California Judges Benchbook, the practical book written by judges for judges, one of which citations supplies this guidance to the judge: "Because proof of discriminatory intent often depends on inferences rather than direct evidence, very little evidence of this intent is necessary to defeat summary judgment, i.e., a judge should not grant summary judgment unless the evidence cannot support any reasonable inference for the plaintiff. Nazir v. United Airlines, Inc. (2009) 178 [Cal.App.]4th 243, 283." (Cal. Judges Benchbook: Civil Proceedings Before Trial (2nd ed. 2013) § 13.64, p. 392.)

Our "duty is to determine only whether the evidence could support a judgment in favor of Curran. (Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 241 (Moore).) The appropriate inquiry here, in a retaliation case, is whether there was evidence that could support "retaliatory animus." (Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 715.) And in pursuit of that duty, and that inquiry, we must view the evidence through the lens noted in Nazir. Or, as our Presiding Justice Kline put it earlier, there reversing summary judgment in a discrimination case: "[W]e must bear in mind that, ' "[b]ecause discrimination cases often depend on inferences rather than on direct evidence, summary judgment should not be granted unless the evidence could not support any reasonable inference for the nonmovant." ' [Citations.]" (Spitzer v. Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1386.)

In the leading case of Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1052 (Yanowitz), our Supreme Court observed that retaliation cases are inherently fact-specific, an observation confirmed by our colleagues in Division Five, in Kelley v. The Conco Companies (2011) 196 Cal.App.4th 191. Reversing the summary adjudication on Kelley's retaliation claim and relying on Yanowitz, the court observed: " 'Retaliation claims are inherently fact-specific, and the impact of an employer's action in a particular case must be evaluated in context. . . . [T]he determination of whether a particular action or course of conduct rises to the level of actionable conduct should take into account the unique circumstances of the affected employee as well as the workplace context of the claim.' (Yanowitz, supra, 36 Cal.4th at p. 1052, fn. omitted.) ' "[A] series of alleged discriminatory acts must be considered collectively rather than individually in determining whether the overall employment action is adverse [citations] and, in the end, the determination of whether there was an adverse employment action is made on a case-by-case basis, in light of the objective evidence." [Citation.]' (Holmes v. Petrovich Development Co., LLC (2011) 191 Cal.App.4th 1047, 1063.)" (Kelley v. The Conco Companies, supra, 196 Cal.App.4th at p. 214; accord, Castro-Ramirez v. Dependable Highway Express, Inc. (2016) 2 Cal.App.5th 1028, 1046.) As another court put it: "Actions for retaliation are 'inherently fact-driven'; it is the jury, not the court, that is charged with determining the facts." (McCoy v. Pacific Maritime Assn. (2013) 216 Cal.App.4th 283, 299.)

Finally, and as we also observed in Nazir—an observation, we note, quoted in Justice Chin's leading commentary—" 'many employment cases present issues of intent, and motive, and hostile working environment. Such cases . . . are rarely appropriate for disposition on summary judgment.' " (Chin et al., Cal. Practice Guide: Employment Litigation (The Rutter Group 2016) ¶ 19.760, p. 19-133, quoting Nazir, supra, 178 Cal.App.4th at p. 286.) Indeed, the leading practical treatise for California federal procedure goes so far as to state: "Disputes as to the employer's motives or state of mind raise factual issues, precluding summary judgment. [Citations.]" (Schwarzer et al., Cal. Practice Guide: Federal Civil Procedure Before Trial (The Rutter Group 2017) ¶ 14:280, p. 14-114.)

The Facts as They Must Be Seen

Curran attended high school at the School, and worked there as a part-time teacher while attending college at the University of San Francisco. In 1977, she became a full-time faculty member, and taught in that capacity for four years. In 1981, she was appointed dean of students and director of student activities, and held the position of dean of students until 2010. Throughout Curran's 37-year tenure as an educator and administrator at the School, she received annual written performance evaluations. They were all positive, if not effusive, many expressing gratitude and recognition for her performance as teacher and dean of students. She also received numerous awards and accolades. Curran never received a negative evaluation, and no complaints were ever made against her. Not one. Until Gordon Sharafinski entered the picture.

In 2009, the School named Sharafinski as director of the School, with general authority over all four schools, including the Convent, where Curran was dean of students. In late 2009, the school decided to consolidate the two dean positions at the high schools into a single dean position effective the 2010-2011 school year, and in a November 3 meeting in his office, Sharafinski told Curran about this. Curran said she would like to be considered for the new position at which point, Curran's evidence says, Sharafinski's demeanor suddenly changed, and he became loud—almost explosive—and verbally abusive. Then, in a derogatory, insulting tone, he told the 54-year old Curran, " 'You've been here too long. You've had your turn!' " " '[Y]ou should go to another school and re-invent yourself.' "¹

1 Evidence, we might add, Sharafinski did not deny in the School's reply separate statement.

Sharafinski then said that not only would Curran not be considered, neither would Dean of Studies Doug Grant, then age 62. In fact, Sharafinski told Curran, she would no longer be dean of students, Grant no longer dean of studies. And on a " 'take it or leave it' " basis, Sharafinski told Curran she was being demoted to a newly created position, "Student Life Coordinator," going on to tell her that, " 'If you don't take this position, your salary is going to be cut in half.' "²

2 After the new dean was announced in spring 2010, Curran accepted the demotion to student life coordinator, reporting to Andrea Shurley effective July 1, 2010.

After that meeting, Curran went to Andrea Shurley, her direct manager and the person who would be supervising the "new" dean, and asked to be considered for the " 'one dean' " position. "[A]pologetically," Shurley told Curran, " 'They are not looking at you for the Dean.' "

Over the next several months, Curran met with Sharafinski two or three times to try to convince him to consider her for the " 'one dean' " position. Using the same demeanor and tone manifested on November 3, Sharafinski in essence repeated that Curran had been at the School "too long," that she had "had her turn." Never did Sharafinski tell Curran she was not qualified for the position; never did he give her any reason why he would not at least consider her for the position.

On September 1, after a meeting with Sharafinski in which, according to Curran, he became enraged and lunged at her, she wrote an email to Juli Devincenzi, the long-time director of human resources (HR). The purpose of Curran's email was to file a formal complaint against Sharafinski for his hostile and discriminatory treatment. The email described how Sharafinski treated her in a discriminatory and abusive manner, and complained that Sharafinski was creating a hostile work environment. It specifically complained that Curran was discriminated against by Sharafinski in the process of moving to the " 'one dean' " model, and further that Sharafinski had spoken to her in an "extremely offensive" and "threatening and intimidating" manner. The email also advised Devincenzi that "[t]here are many more comments from Gordon to me and witnesses to these comments." And finally, Curran implored Devincenzi to meet with her to "seriously discuss the discrimination and what I feel is hostile treatment which I am receiving from the Director of Schools and perhaps others." The complaint mentions the words "discriminated" or "discrimination" four times, and concludes with this: "thanks to our HR workshops . . . I have, what I believe is a good understanding of employee discrimination: It feels like Intentional Employment Discrimination (Civil Rights 1991) . . . ."

The School's policy requires it to "immediately undertake an effective, thorough and objective investigation" of all complaints of discrimination. It also states "Schools will not retaliate against an Employee for filing a complaint, and will not tolerate or permit retaliation by Administrators, Faculty, or Staff." In addition to that policy, the "Interactive Training Course for Supervisors" that School officials took instructed that the investigator conduct the investigation while the details are fresh, and will ask the complainant to provide details such as the dates, locations, and nature of the discriminatory actions, as well as information regarding witnesses and other tangible evidence. It goes on to stress "The Importance of Good Documentation" when conducting an investigation, emphasizing that documentation should be timely, contemporaneous, thorough, legible, signed, dated, and professionally written. And it concludes: "Make the time [to document]—EVERY time!!"

In response to Curran's September 1 email, Devincenzi set up a meeting on September 16 among Curran, herself, and Ann Miller, the School's attorney.³ During that meeting, Curran told them in detail about her November 3 meeting with Sharafinski, elaborating how Sharafinski became loud and verbally abusive towards her and describing his derogatory statements, including his statements " 'you've been here too long,' " you've " 'had your turn,' " etc. Curran also told them about her September 1 meeting with Sharafinski that prompted her complaint to HR, how at that meeting Sharafinski yelled at her and insisted that she agree with him that a teacher was insubordinate towards him during an August 19 faculty orientation meeting. Curran told them how Sharafinski "erupted," his face turned bright red, and he "lunged" at her when she disagreed with him, causing her to fear for her safety. Finally, Curran complained about the discrimination she had witnessed relative to other employees, explaining, for example, that Grant had been replaced by Rachel Simpson, who was over 20 years younger than Grant.

3 Devincenzi told Curran that Miller was not at the meeting as the School's attorney, but was at the meeting because "she needed to have someone present."

No notes were taken during the meeting!

Less than a week after her September 16 meeting with Devincenzi and Miller, Curran was subjected to further discriminatory treatment. So, on October 6, she wrote another email to Devincenzi describing the various issues that had arisen since their meeting, and requesting another meeting to follow up on her discrimination complaint.

Devincenzi's response was to set up a meeting with Sharafinski!

On October 14, Sharafinski, Curran and Devincenzi met. Suffice to say that Curran again described her complaints, and also asked Sharafinski about his discriminatory treatment of her; why she was not allowed to apply for the new dean position; why Simpson had been selected for the position with so little experience; and why Simpson was given the position as interim head, while Shurley was out on maternity leave. Sharafinski was curt and refused to answer Curran's questions, except to state that he could not appoint Grant as interim head. According to Curran, Sharafinski's demeanor throughout the meeting was one of restrained anger.

Again, Devincenzi took no notes during the meeting. Despite complaining for a second time that she was being discriminated against, Curran never received any response, written or verbal, to her complaints. And she was never informed if the School conducted any investigation into her complaints or told any results of any investigation.

That was the state of affairs as of mid-October 2010: Curran complained in writing about Sharafinski; brought her complaints to HR; met with HR about them; and once met with HR and Sharafinski to discuss them. The issue was between Curran and Sharafinski. Period. There was not one complaint about Curran.⁴ So, one would ask, what would an honorable manager do to address the issue, one between him and an employee with more than 36 years' experience? Not what Sharafinski did.

4 Actually, there was one "complaint," by Simpson, made the day after Curran's September 16 meeting with Devincenzi and Miller, who reported to Devincenzi that she felt " 'physically intimidated' " by Curran, that Curran had "yelled at her," " 'wagged her finger' " and "been very aggressive towards her after an August 19, 2010 faculty orientation meeting." One could say this "complaint" was suspicious at best, as the record does not rule out that it was Devincenzi who approached Simpson.

Sharafinski's response was to call a meeting for December 6 with Devincenzi, Shurley, Simpson, Anthony Farrell, and Ren Marquette—three of whom (all but Devincenzi and Marquette) had been hired or promoted by Sharafinski. The agenda was "how to proceed w[ith] Celine," and Sharafinski leadingly asked: " 'Has Celine fulfilled the role, living w[ithin] the boundaries of the [job description], so much that you would want her to continue in that role?' " And in answer to his own question, Sharafinski stated he had " 'major concerns about ability to be a subordinate, she is unable to be a part of the team and support leadership,' " apparently elaborating the claimed reasons why: "she has no track record of collaboration"; " 'obstructionist'—defy's [sic] legitimate authority"; "she cannot live w[ith] decisions that have been made by others"; "she railroads discussions."

At the end of the meeting, each participant was asked to compile a list of Curran's transgressions and send them to Devincenzi. Simpson, Shurley and Farrell—all of whom, as noted, were either hired or promoted by Sharafinski—sent responses. Marquette, who was not hired or promoted by Sharafinski, did not.

Curran was called to a meeting on January 21, 2011 in Sharafinski's office. She was told she would be meeting with Sharafinski and Shurley; she was not told what the meeting was about. When Curran arrived, six people were present: Sharafinski, Devincenzi, Shurley, Simpson, Farrell, and Marquette. Sharafinski handed Curran a five-page memorandum entitled "Your Performance," and told her: " 'Go sit in the corner, read it, come back and let's talk about it.' "⁵ The memorandum began with this: "We are giving you this memo to inform you that your performance with respect to your interactions with the Heads and Deans has been unacceptable since the beginning of the school year and it must change if you are going to return to the School next year." The memorandum contained several "incidents" reaching back more than five months, to the very first week of school. Not one of the incidents cited in the memorandum had ever been brought to Curran's attention, either verbally or in writing, prior to her being handed the memorandum. Beyond that, according to Curran, the majority of the "incidents" cited were simply untrue. And even beyond that, some of the "incidents" were truly picayune, illustrated by these two:

5 Despite the fact that the memorandum was supposedly "FROM" Sharafinski, Farrell, and Shurley, the day after the meeting, Farrell told Curran he had nothing to do with it.

"At the Freshman Success event, in reviewing policies and expectations with students, including a discussion about chewing gum, you again contradicted Rachel in front of the students, stating that gum chewing policies are up to individual teachers. Not only was this disrespectful of Rachel's authority, it created confusion for students."

"At the Back to School Night in September, Rachel had arranged for 'Check In' to be set up at a table in the main hall. Without consulting with Rachel, you moved the 'Check In' table to the Adam Room. This was confusing to parents and disregarded Rachel's authority."

The School's employee handbook sets forth the disciplinary procedures to be followed when an employee's performance or conduct is lacking, and specifically requires that an employee be afforded a formal administrative review consisting of a three-step process: first, the employee must be notified in writing that she is being subjected to a formal administrative review ("that he/she will be undergoing a process of intense supervision designed to improve his/her performance."); second, a conference must be scheduled to: (a) conduct an "objective analysis of deficiencies," (b) develop "a set of objectives designed to overcome those deficiencies" and (c) set a time line to monitor progress; and third, a final review conference is required to inform the employee of the outcome of the review.

Curran's evidence—indeed, evidence undisputed in the record—was that immediately after the January 21 meeting Devincenzi told her " 'Don't worry. You filed a hostile work environment and a discrimination [claim]. You have nothing to worry about. They can't fire you.' "

We briefly digress from the chronology of meetings to mention what occurred on January 20, the day before the January 21 meeting—Shurley's annual performance review of Curran. That review that could hardly have been more glowing, beginning as follows: "You live and breathe the Goals and Criteria, and you embrace the Sacred Heart spirit. Your support of Convent seems boundless and tireless. You take every opportunity to remind students and teachers of the Goals and Criteria of Sacred Heart education. You strive to support all of the students, especially the freshmen, and you reach out to the parent community, too. When you represent Convent, you always bring the spirit of Sacred Heart with you." Shurley's review also commended Curran, stating: "You demonstrated great professionalism throughout a tumultuous year. No matter what your concerns were, when asked to speak to the faculty about changes, you did so with a positive spirit."

On February 4, Curran met with Devincenzi to discuss the inaccuracies in the January 21 memorandum, and began by explaining why the various incidents set forth were not true or at best inaccurate. Devincenzi told her she could respond in writing because Devincenzi—the supposed investigator—did not want to "record her side of the story." Curran also told Devincenzi she felt the January 21 meeting was unprofessional because as a disciplinary hearing she should have been given an opportunity to prepare. Devincenzi again told Curran—emphatically, Curran says—that the January 21 meeting was not a disciplinary hearing as described in the employee handbook under "Formal Administrative Review," but "was simply a meeting with the employee to discuss performance."

A letter of intent is sent to each faculty member and administrator asking whether he or she intends to return the next academic year, and Curran had always received a letter of intent during her long tenure at the School. On February 11, a Friday, Shurley informed Curran that she would not be receiving a letter of intent. Curran was devastated. Believing this was further retaliation for her complaint against Sharafinski, Curran asked Shurley why she did not receive a letter of intent. Shurley said it was because she, Shurley, already knew Curran's intent was to return.

That weekend Curran wrote an email dated February 13 to her direct manager, Shurley, copying both Devincenzi and Sharafinski. Her email expressed shock and disappointment at learning she was the only person who did not receive a letter of intent, and also her confusion regarding Shurley's explanation that she knew Curran's intent, since Curran and Shurley had never discussed it. That email complains, "I am being discriminated against," and makes clear Curran felt she had been subjected to discrimination since at least the beginning of the school year, and that she viewed the failure to give her a letter of intent as just one more discriminatory action against her. The email concludes by asking for a meeting to discuss the letter of intent issue.⁶

6 On February 14, after receiving Curran's email and upon further pressing by Curran, Shurley admitted that it was Sharafinski's idea not to send Curran a letter of intent.

Two weeks later, on March 2, Curran was given a "Written Warning" from Sharafinski, Shurley, and Farrell. It describes her February 13 email complaint of continuing discrimination and retaliation this way: "On Sunday February 13th you sent an email to Andi [Shurley] that was entirely inappropriate, you copied Gordy [Sharafinski] and Juli [Devincenzi]. In the email you characterized Andi's communications as unfair and discriminatory, creating a hostile work environment. In addition, you characterized your administrative managers as lacking professional behavior. These are very serious allegations which we believe are absolutely false. Your tone throughout the email was belligerent and threatening. Your written conduct was inappropriate and unprofessional, demonstrating an unwillingness to positively support the heads of the Schools as required for your continued employment."

On May 3, Sharafinski and Devincenzi met with Curran. Shurley, Curran's manager, was not present. Sharafinski told Curran that she would not be offered a contract for the following school year, thus ending her 37-year career at the School.

Summary Adjudication of the Retaliation Claim Was Wrong , As There Are Triable Issues Supporting Retaliation

The retaliation provision of FEHA (Govt. Code, § 12900 et seq.) forbids an employer "to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under" FEHA. (Id. at § 12940, subd. (h).) An employee may establish a prima facie case of unlawful retaliation by showing that (1) she engaged in activities protected by FEHA, (2) the employer subsequently took adverse employment action against her, and (3) there was a causal connection between the protected activity and the adverse employment action. (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 472.)

The first two elements are not in issue here. Curran filed a complaint about Sharafinski, which complaint is considered sufficient opposition to trigger the prohibition against retaliation. (California Fair Employment & Housing Com. v. Gemini Aluminum Corp. (2004) 122 Cal.App.4th 1004, 1018; Passantino v. Johnson & Johnson Consumer Products, Inc. (9th Cir. 2000) 212 F.3d 493, 506 [formal or informal complaints to supervisor].) And Curran was terminated. That leaves only element three.

There was no question that prior to Curran's September 1 complaint of discrimination she had been regarded as a valuable employee, one who had never been disciplined—indeed, even complained about—in her 37 years at the School. However, after Curran's complaints about Sharafinski's treatment were brought to his attention, he began a deliberate campaign to gather "evidence" to support her termination, as described in detail above. To briefly recap, despite that the only issue was between Curran and Sharafinski, Sharafinski called a meeting on December 6 in order to solicit negative feedback regarding "how to proceed w[ith] Celine." Stating his view that Curran " 'is unable to be a subordinate . . . she is unable to support leadership,' " Sharafinski leadingly asked each person " 'has Curran fulfilled the role, living within the boundaries of the job description, so much that you would want her to continue in that role?' " Sharafinski then told each member of the administrative team to document Curran's history of " 'insubordination' " and send the information to Devincenzi. And so came the complaints, setting forth the so-called "incidents."

Yanowitz reversed the summary judgment that had in part been based on a showing by defendant that there "were problems with Yanowitz's performance both before and after the incident" of which she had complained. That evidence was not sufficient to support the summary judgment, the Supreme Court said. But more to the point—and on point here—the Supreme Court held that "Roderick's active solicitation of negative information concerning Yanowitz in the spring of 1998 strongly suggests the possibility that her employer was engaged in a search for a pretextual basis for discipline, which in turn suggests that the subsequent discipline imposed was for purposes of retaliation. (See Lindemann & Grossman, Employment Discrimination Law (3d ed. 1996) pp. 674-675.)" (Yanowitz, supra, 36 Cal.4th at pp. 1061-1062.) Substitute "Sharafinski" for "Roderick" and, as Curran's brief describes it, that is " exactly what happened in this case ." Whether exactly or not, it is certainly similar—and similarly supportive of a retaliation claim.

Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138 is also persuasive. Sada, a person of Mexican ancestry, worked as an independent contractor for defendant Medical Center. She applied for a permanent position; it was denied; she then filed a California Department of Fair Employment and Housing (DFEH) complaint, following which she was ultimately terminated by Patricia Brendia. Reversing the summary adjudication of Sada's retaliation claim, this is how the court described the evidence that supported the "inference that the Medical Center's stated reason for its decision was merely a subterfuge for retaliatory conduct. Until Brendia learned that Sada had complained to the DFEH about the Medical Center's hiring decision, Sada had received oral compliments on her work and 13 written evaluations that praised her performance. She had not received any criticism of her work, either orally or in writing. . . . Brendia learned about Sada's DFEH complaint on or about July 26, 1994. Two days later, at Brendia's direction, Sada's performance was 'reevaluated.' That evaluation was conducted by Heasley, who had previously been 'written up' after Sada reported Heasley's inadequate performance to a physician. [Citation.] Based on Sada's evaluation—the first to criticize her—Brendia decided to terminate Sada's services." (Id. at pp. 156-157, fn. omitted.) Brendia's "reevaluation" in Sada was, like Roderick's "search" in Yanowitz, a "subterfuge for retaliatory conduct." Likewise Sharafinski's solicitation of complaints here.

Curran's evidence is more than adequate to support the inference that the so-called performance issues were manufactured in order to justify Sharafinski's decision to terminate Curran's employment. (Yanowitz, supra, 36 Cal.4th at p. 1062; see Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S. 133, 148 [proof that an employer's criticism of the plaintiff's job performance was unfounded raises a question of fact as to the credibility of the employer's explanation for the adverse action taken].) The trial court was required to draw that inference. (Code Civ. Proc., § 437c, subd. (c).) So are we. (Nazir, supra, 178 Cal.App.4th at p. 254.)

The evidence also showed that Devincenzi's failure to take notes was not in compliance with the instructions she had received, to "[m]ake the time [to document]—EVERY time." Moreover, Devincenzi's "investigation" into Curran's complaint was hardly that required by the employee handbook, one that was "effective, thorough and objective." An inadequate investigation is more evidence supporting Curran. (Mendoza v. Western Medical Center Santa Ana (2014) 222 Cal.App.4th 1334, 1344; Nazir, supra, 178 Cal.App.4th at pp. 278-283; Holmes v. General Dynamics Corp. (1993) 17 Cal.App.4th 1418, 1435 [employee terminated "without following well-established company procedures"].)

These deficiencies create an inference favorable to Curran, as numerous cases have held. As Moore tersely summed it up: "A defendant's failure to follow its own policies or procedures may also provide evidence of pretext. (See Arlington Heights v. Metropolitan Housing Corp. (1977) 429 U.S. 252, 267 [a departure from normal procedures 'might afford evidence that improper purposes [played] a role' in an employee's termination].)" (Moore, supra, 248 Cal.App.4th at p. 239; also see Garrett v. Hewlett-Packard Co. (10th Cir. 2002) 305 F.3d 1210, 1220 [deviations from employer's regular procedures].)

The School's policy required that Curran be subjected to a formal administrative review prior to termination. No such review ever occurred. And after the January 21 meeting, Devincenzi specifically told Curran "the Jan 21 mtg was not a disciplinary hearing, as is described in [the employee] handbook, that it was simply a meeting w[ith] the empl[oyee] to discuss performance." In short, in violation of the employee handbook Curran was never given a formal administrative review. This, too, is evidence supporting Curran.

As described above, two weeks after Curran sent her February 13 email complaining of discrimination, she was given a written warning that described her complaint of discrimination as " 'inappropriate and unprofessional, demonstrating an unwillingness to support the heads of the Schools as required for your continued employment.' " How is it " 'inappropriate and unprofessional' " to exercise a statutorily-based right to be free of discrimination? In any event, the School's policy requires it to "immediately undertake an effective, thorough and objective investigation" of all complaints of discrimination. It also states "Schools will not retaliate against an Employee for filing a complaint, and will not tolerate or permit retaliation by Administrators, Faculty, or Staff." All that was disregarded by the School.

The evidence demonstrated that Curran had received positive evaluations throughout her 37-year career, not to mention numerous awards and accolades for her work at the School. This, too, permits an inference that Curran's termination was the result of retaliatory animus. (See, e.g., Colarossi v. Coty US Inc. (2002) 97 Cal.App.4th 1142, 1154 [termination of a highly rated employee can be circumstantial evidence of discriminatory intent]; Sada v. Robert F. Kennedy Medical Center, supra, 56 Cal.App.4th at pp. 156-157 [poor performance justification for termination undermined by evidence of good performance reviews, hostility of person who performed final review, close temporal proximity to protected activity, and hostile remarks by supervisor]; Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 479-480 [employer's poor performance justification for termination not supported by evidence and undermined by evidence of employee's good performance and by timing of the termination].)

The evidence shows that Sharafinski learned of her complaint about him in mid-October; solicited negative feedback about Curran regarding her performance shortly thereafter; and terminated her in early May 2011. Seven months from beginning to end, from complaint to termination, creating at the least a triable issue regarding the causation element of a retaliation claim, a causal link that may be established by "evidence of nothing more than the employer's knowledge that the employee engaged in protected activities and the proximity in time between the protected action and the allegedly retaliatory employment decision." (McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 388; see Allen v. Iranon (9th Cir. 2002) 283 F.3d 1070, 1078 [11-month gap in time is within the range found to support an inference that an employment decision was retaliatory]; see also Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 421 [almost three years between complaint and adverse employment action].)

"Retaliation claims are inherently fact-specific, and the impact of an employer's action in a particular case must be evaluated in context. . . . [T]he determination of whether a particular action or course of conduct rises to the level of actionable conduct should take into account the unique circumstances of the affected employee as well as the workplace context of the claim." (Yanowitz, supra, 36 Cal.4th at p. 1052, fn. omitted.)

That context, those unique circumstances, are discussed in detail above. Curran complains to Devincenzi about Sharafinski. They meet. Sharafinski sets up a meeting with an agenda of "how to proceed w[ith]" her, soliciting criticisms. Those criticisms, however picayune, came, and at Sharafinski's request Devincenzi compiled them into the memorandum Sharafinski presented her on January 21, the first negative criticism Curran had received in her 36-plus years—over 13,100 days—working at the School. On February 13, Curran again complains about Sharafinski's treatment. Two weeks later she was given a "Written Warning," chastising her for complaining. Two months later she was terminated.

Citing numerous commentaries, we ended a discussion in Nazir with the observation that "since the summary judgment procedure has been removed from disfavored status, some judges and commentators have expressed concern that trial courts have moved too far in the other direction. [Citations.] And much of this concern has been expressed in particular reference to employment cases. [Citation.] [¶] We take no position on this criticism, but do observe that many employment cases present issues of intent, and motive, and hostile working environment, issues not determinable on paper. Such cases, we caution, are rarely appropriate for disposition on summary judgment, however liberalized it be. In the colorful language of Chief Judge Wald: 'Its flame lit by Matsushita, Anderson, and Celotex . . . summary judgment has spread . . . through the underbrush of undesirable cases, taking down some healthy trees as it goes.' (Wald, Federal Practice and Procedure Symposium Honoring Charles Allan Wright: [Summary Judgment at Sixty (1998)] 76 Tex. L.Rev. [1897,] 1941.) This, we cannot allow." (Nazir, supra, 178 Cal.App.4th at p. 286, fns. omitted.) And we will not allow it here.

The School's Appeal—No. A143646

By a unanimous verdict, the jury awarded Curran 40 days of unpaid vacation time, for a total of $16,278.40, plus $12,208.50 in waiting time penalties. The jury also found that the School's conduct was willful, and the trial court awarded $495,549.75 in attorney fees, and also awarded Curran $84,035.40 in costs. The School's appeal makes three arguments: (1) the jury's award of unpaid vacation time is not supported by substantial evidence; (2) the trial court abused its discretion regarding Labor Code fees and costs; and (3) the trial court misapprehended and misapplied Code of Civil Procedure section 998 (section 998). We discuss them in order—and reject them all.

Substantial Evidence Supports the Vacation Pay Verdict

The School first contends that the verdict for vacation pay is not supported by substantial evidence. When the issue on appeal is the sufficiency of the evidence, we apply the familiar test: " '[W]e are bound by the established rules of appellate review that all factual matters will be viewed most favorably to the prevailing party [citations] and in support of the judgment . . . . "In brief, the appellate court ordinarily looks only at the evidence supporting the successful party, and disregards the contrary showing." [Citation.] All conflicts, therefore, must be resolved in favor of the respondent.' " (Campbell v. Southern Pacific Co. (1978) 22 Cal.3d 51, 60; accord, Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 571.) "When we consider whether the evidence was sufficient to support the jury's verdict, we review the entire record in the light most favorable to the judgment to determine whether there are sufficient facts, contradicted or uncontradicted, to support the judgment. [Citation.] Substantial evidence is evidence that is reasonable and credible. In evaluating the evidence, we accept reasonable inferences in support of the judgment and do not consider whether contrary inferences may be made from the evidence. [Citation.]" (Mammoth Lakes Land Acquisition, LLC v. Town of Mammoth Lakes (2010) 191 Cal.App.4th 435, 462-463.)

But other principles govern substantial evidence appeals, and Justice Sullivan's oft-cited exposition of those principles is as apt today as it was in 1971, when he wrote Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, there in the context of a nonjury trial:

"The crucial question in considering defendants' first contention is whether there is any substantial evidence to support the trial court's findings. 'When a finding of fact is attacked on the ground that there is not any substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether there is any substantial evidence contradicted or uncontradicted which will support the finding of fact.' [Citations.]

" 'It is well established that a reviewing court starts with the presumption that the record contains evidence to sustain every finding of fact.' [Citations.] Defendants' contention herein ' requires defendants to demonstrate that there is no substantial evidence to support the challenged findings.' (Italics added.) [Citations.] A recitation of only defendants' evidence is not the 'demonstration' contemplated under the above rule. [Citation.] Accordingly, if, as defendants here contend, 'some particular issue of fact is not sustained, they are required to set forth in their brief all the material evidence on the point and not merely their own evidence. Unless this is done the error is deemed to be waived.' (Italics added.) [Citations.]" (Foreman & Clark Corp. v. Fallon, supra, 3 Cal.3d at p. 881; accord, Piedra v. Dugan (2004) 123 Cal.App.4th 1483, 1489 [rule applies to " 'appeals from both jury and nonjury trials' "].)

The leading case of In re Marriage of Fink (1979) 25 Cal.3d 877 addressed the husband's argument that there was no substantial evidence. Doing so, the Supreme Court noted that the argument was "based upon a highly selective recitation of the record," and that his brief "cites only evidence favorable to his position, ignoring all to the contrary. Such briefing is manifestly deficient." (Id. at p. 887.) Then, after recitation of the applicable law, the Supreme Court concluded that it "summarily reject[s]" husband's argument based on a lack of substantial evidence. "It is neither practical nor appropriate for us to comb the record on [husband's] behalf." (Id. at p. 888.)

Curran contends that the School has waived its substantial evidence argument based on the School's selective approach to the facts, a contention with which we agree. Indeed, the School's own brief perhaps acknowledges its failing, saying that its duty is "to provide a fair summary of the evidence that supports the verdict"—not "all" the evidence. And, the School's brief goes on, however dismissingly, that its duty is "easily discharged—the evidence on which Curran relied to support her contentions regarding vacation pay—was legally inadequate to support a verdict for Curran, because it was hearsay, speculation, and otherwise improper." This is manifestly insufficient, and we deem the School's argument waived. (Rayii v. Gatica (2013) 218 Cal.App.4th 1402, 1408; Mendoza v. City of West Covina (2012) 206 Cal.App.4th 702, 713-714.)

In any event, there is substantial evidence. As discussed below, Curran testified she was not paid all the vacation pay to which she was entitled. The School's position was that she was, a position the jury rejected. Properly so.

We begin with discussion of the School's position, a position that, as its brief describes it, is straightforward: "The record shows without dispute that since at least 1998, Schools has had a vacation policy under which the maximum amount of vacation that an employee may accrue is capped. Thus, while the amount of the maximum accrual changed over time, the fact of a maximum accrual has not." Based on that fundamental premise, the School's argument has three components, again in its own words: "(1) Curran was entitled to 20 days of vacation per year, which could accrue to a maximum of 35 days, at which point further accrual ceased, (2) in her final year, Schools' records showed that she had taken at least 17 days of vacation, and (3) she received a check for an additional 20 days' salary as her accrued and unused vacation time at the time of termination." Component (3) is based on the School's assertion that it paid Curran the unused vacation pay "when it tendered a check for 20 days of pay at the end of her employment—the end of a year when she took at least 17 days of paid vacation, and in addition was only 'very, very rarely' in the workplace for a period of several weeks over the summer of 2010 . . . ." The School's argument is easily rejected.

To begin with, and as will be seen, the evidence is not "without dispute." But even if it were, the jury is free to reject uncontradicted testimony (Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1028), and we must affirm unless such rejection was arbitrary. (Ortzman v. Van Der Waal (1952) 114 Cal.App.2d 167, 170-171; see Krause v. Apodaca (1960) 186 Cal.App.2d 413, 417.) The jury obviously rejected the School's position here—indeed, going so far as to find that its nonpayment to Curran of all that was due her was "willful[]."

The School's view may be that Curran was "very, very rarely" at work in the summer of 2010. Curran testified to the contrary, that she took very few days off, that she worked most of the summers, and that she "went into the school almost every single day. Only took a few days off with my family." She also testified that she took 7-10 days of vacation per year on average.

But beyond Curran's testimony, the School's assertion that Curran took 17 days of vacation during her final year was shown to be false by the testimony of HR Director Devincenzi herself, who admitted that she counted a three-day period as five vacation days; that she wrongfully included as a vacation day a day Curran had jury duty; and that she counted the two days after Curran was terminated as vacation days.⁷ This evidence is obviously inconsistent with the School's calculation of Curran's unused vacation time.

7 Devincenzi also admitted to characterizing several nonvacation days as vacation in prior years.

Also in dispute was a fundamental underpinning of the School's position—that it gave Curran a check for the unused vacation. As noted, the School contended that it paid Curran for 20 days' salary as her unused vacation time, and entered into evidence a check it claimed was that payment. But the check does not indicate it was payment for unused vacation. In fact, Devincenzi admitted she never told Curran the check was for unused vacation and admitted she never gave Curran anything indicating how much vacation Curran was owed. On top of all that, Curran testified that she never received a check for her unused accrued vacation. In sum, much—if not most—of the School's own position was in conflict. No wonder it was not accepted by the jury.⁸

8 It is also worth noting that in light of the fact that Devincenzi's calculations were inaccurate, even if the School's position were accepted in general, it would still mean that Curran was underpaid to some extent, even if not to the extent of 40 days. This would mean only that Curran's verdict was excessive, as to which the law is that a claim of excessive damages is waived unless it is first raised in a motion for new trial. (Jamison v. Jamison (2008) 164 Cal.App.4th 714, 719-720.) The School filed no such motion.

But all of that assumes that the School's fundamental position—the 1999 change in vacation policy; 23 days maximum accrual; 17 days' vacation taken; Curran paid for the balance—was the only evidence in the record. It was not.

The School's contention ignores Curran's evidence, which included this from the School's employee handbook for the 1998-1999 school year: "Full-time Staff earn vacation time at the rate of 0.84 days per month during the first five years of active employment (2 weeks for each full year of employment); at the rate of 1.25 days per month during the second five years of active employment (3 weeks for each full year of employment); and at the rate of 1.67 days per month for each year thereafter (4 weeks for each full year of active employment)." And, the handbook expressly said, "Vacation time may accrue to a maximum of fourteen months' accrual." Grant, who was the head of the Convent High School from 1992 to 2008, testified that the School's policy during the 1990s permitted an employee to accrue 14 months of vacation. That is substantial evidence.

The School asserts that Grant's testimony was "irrelevant and legally impermissible." We disagree. First, Grant's testimony was clearly relevant. Second, the School failed to object to this testimony during trial on either relevance or parol evidence grounds, and therefore its objections are waived. (Evid. Code, § 353.) Third, the School's argument that the language "fourteen months' accrual" is not reasonably susceptible to multiple meanings because it can only mean 23 days is fatuous.

Although HR Director Devincenzi testified that she believed the "fourteen months' accrual" language really meant one could accrue only 23.38 days of vacation, the jury clearly chose not to believe her. They may have chosen not to believe her because the language of the employee handbook which allows for "fourteen months' accrual" is clear. Or perhaps it was because Devincenzi was not employed by the School at the time this policy was in effect. Or because 14 months could have been the School's way as an education institution to allow the equivalence of sabbaticals. Whatever, Curran never testified she accrued 14 months of vacation or sought an award based on that. And the jury verdict, for 40 days unpaid vacation, was less than one-tenth of "fourteen months."

Curran also testified that in either 1998 or 1999 she attended an administration meeting in which the attendees were told the School was changing its vacation accrual policy, but that vacation time already accrued would be "grandfathered" in. More specifically, Curran testified "it had come up for discussion" that "there was going to be a change in the [vacation] policy." And, "[w]e were told . . . that all of us who had accrued our dates, that it would be grandfathered in. And I was made aware that I had a number of days in terms of vacation . . . , and I was given that information that it would be grandfathered in." And at "some point in time," an administrative assistant told Curran she had accrued 180 days of vacation. Accordingly, at the time her employment contract was not renewed, she said, she was confident that she had well in excess of 35 days of accrued vacation time. To put it succinctly, Curran testified that her accrued vacation time was "grandfathered in," and that accrued time was more than 35 days, perhaps 180.

Grant testified similarly, that he attended a meeting in which either the business manager or the head of schools told the attendees there was going to be a change to the vacation accrual policy, but that vacation time already accrued would be "grandfathered" in. Grant also testified, just as Curran did, that at some point after the meeting he was told how much vacation he had accrued. This is more than "vague testimony," as the School describes it. It is substantial evidence.

The School claims Curran's testimony she was told she had accrued 180 vacation days was inadmissible for the truth. The School objected to this evidence as hearsay when it was elicited on direct examination; the trial court overruled the objection but said it could not be considered for the truth. However, 26 days later, similar "180 days" evidence was introduced—indeed twice. The first was when the School's counsel read Curran's testimony into the record; the second was when the School had no objection to Curran's counsel reading similar testimony into the record. And that evidence, the court told the jury, was "to be considered as evidence, just like it were given here at trial."⁹

9 This is the colloquy:
"THE COURT: All right. Going back on the record. We've just got one little bit more. Actually, each side wants to read you portions of Ms. Curran's deposition testimony, okay? And that's to be considered as evidence, just like it were given here at trial, okay? Mr. Brown has portions he wants to read, and Mr. McGuinn has a few portions. It's not lengthy. And then, I'm going to go right into instructing you.
"MR. BROWN: Thank you, Your Honor. [¶] . . . [¶]
" 'Q. "Over," is still not a specific amount. You're asking for money. You're asking for money based on unpaid vacation. How many days? How many days do you believe you were entitled to that you weren't paid for?'
"Ms. Curran's answer: '185 days.'
" 'Q. All right. Now, on what do you base your understanding that you were entitled to 185 days of vacation?
" 'A. Information was shared with me in the '90s, the amount of vacation days I had and personal days and sick days.
" 'Q. Who gave that information to you?
" 'A. The—it would have been the administrative assistant.
" 'Q. Do you have a name for that person?
" 'A. Back in the '90s, it might have been Doug Grant who was the head of the school at that time.
" 'Q. That's your best recollection as you sit here today?
" 'A. I think so.
" 'Q. . . . How was the information that you were entitled to 185 vacation days conveyed to you?
" 'A. I was told that information.' "
Moreover, when Curran's counsel wanted to read further deposition testimony into the record, counsel for the School stated he had "no objection." This followed:
"THE COURT: All right. Thank you.
"MR. McGUINN: 'Q. And what I want to know specifically is how much vacation time are you owed?
" 'A. Lots.
" 'Q. How much is lots?
" 'A. I was an employee at the school for 38 years. I was an administrator since 1980. I am owed all the vacation and sick days and personal days that I did not take.
" 'Q. How many is that for vacation? Do you have any idea?
" 'A. I know I had accrued over 180 days. I know that I had accrued over 90 days, personal days. I was advised of that in the '90s. I was aware that I didn't take a lot of vacation. I made myself available to the school constantly. And I was aware that I didn't take any—very few sick days.' "

In addition to all the above, the jury's verdict was supported by substantial evidence even without Curran's "180 days" testimony, as the jury could have chosen to do its own calculation based on the evidence that was in the record. That evidence showed that prior to 1999 Curran was first entitled to vacation at the rate of 10 days a year (from 1977-1982), then 15 days (1983-1987), and then 20 days (1988-1999); it also included the evidence Curran took seven to 10 vacation days per year. So, the jury could have calculated how much vacation Curran accrued as of 1999 and deducted the amount she actually took between 1999 and 2011 when she was terminated. For example:

If the jury believed Curran took 10 days of vacation per year (as she testified), then she would have amassed 135 vacation days as of 1999, computed as follows: From 1977 to 1982, Curran was entitled to 10 vacation days per year; if she took 10 days then she would not have accrued any vacation days in her "bank." From 1983 to 1987, Curran was entitled to 15 vacation days per year; if she took 10 days per year, she would have banked 25 vacation days by 1987: five days times five years. From 1988 to 1999, Curran was entitled to 20 vacation days per year; if she took 10 days per year, she would have banked 110 days during that time period: 10 days times 11 years. This results in 135 vacation days banked as of 1999. At that same rate of 10 days per year, she would have used 70 vacation days by 2007, leaving her with 60 days' banked. The School's records, which were hardly exemplary, apparently show that Curran used 25 vacation days between 2007 and her termination,¹⁰ leaving her with over 40 days of vacation at the time of her termination.¹¹

10 By contrast, the School's responses to interrogatories assert Curran took 32 vacation days between 2008 and her termination. However, the responses to interrogatories admit the School did not track vacation during the 2007-2008 school year. So even assuming the jury believed the School's contention that Curran was paid 20 days of vacation upon termination, the jury would still end up determining Curran was owed more than 40 days of vacation at the time of her termination.

11 None of this, of course, includes all the vacation days accrued after 1999.

In sum, the jury could have reached its verdict in any number of ways, and the fact that the jury ended up awarding Curran for 40 days of vacation does not turn on Curran's testimony that she was told she had accrued 180 days of vacation. The jury's unanimous verdict on vacation pay is supported by substantial evidence.

Buried within the School's first argument, without any argument heading on its own, the School briefly argues that the trial court committed instructional error in one respect, refusing the School's proposed instruction on the vacation pay issue. That instruction was: "When an employment contract or an employer policy provides for paid vacation, an employee who has earned but not used all of his or her vacation under the terms of the vacation policy is entitled to be paid for any earned but unused vacation time at the final rate of pay at the end of his or her employment. [¶] An employer's vacation policy cannot provide for the unpaid loss of vacation previously earned by an employee under the terms of the policy. However, it is permissible for a vacation policy to impose a cap on the accrual of vacation so that, once the cap is reached, an employee will not accrue any additional vacation until the employee's vacation balance drops below the established accrual cap." Such instruction was properly refused.

The proposed instruction was argumentative. (Fibreboard Paper Products Corp. v. East Bay Union of Machinists (1964) 227 Cal.App.2d 675, 718.) It also unduly emphasized the School's position, suggesting special consideration given to it. (Major v. Western Home Ins. Co. (2009) 169 Cal.App.4th 1197, 1217.) Such instructions are properly rejected.

The instruction actually given—which the School does not quote in its brief—was this: "An employee's right to vacation pay vests as services are rendered. An employee who has earned but not used all of his or her vacation at the end of his or her employment is entitled to be paid for any earned but unused vacation at the final rate of pay. An employer may adopt an accrual 'cap,' but it may not divest the employee of vacation time that has vested prior to the enactment of the accrual 'cap.' " The School contends that the instruction does not "clarify for the jury that vacation accrues according to an employer's policy," and therefore "impermissibly suggested that employees have some independent right to vacation under the law." We disagree. There is nothing in the instruction given that "suggest[s]" in any way that employees have some "independent right to vacation under the law." Furthermore, when the School commented that it believed the words " 'under the employer policy' " should be added to the first sentence, the court explained "[t]here's no dispute here that the employer had a policy," and the School's counsel responded: "Thank you, Your Honor."

The School's argument that the instruction failed to instruct the jury that "Schools was legally entitled to impose a cap on future vacation accrual which prevents the accrual of any additional vacation time until the vacation balance drops below the cap" is also wrong. The jury instruction given plainly states "[a]n employer may adopt an accrual 'cap.' " How an accrual cap functions, or whether it prevents accrual of additional vacation time until the balance drops below the cap, are not issues of law to be announced in a jury instruction. They are issues of fact for the jury to determine based on the evidence presented at trial.¹²

12 Evidence of how the School's vacation policy functioned was testified about no fewer than eight times.

Finally, the School fails to demonstrate that the jury was misled in any way by the jury instruction given. Rather, the School simply states, "it is plain that the jury was in fact misled, as it otherwise could not have awarded Curran vacation pay in excess of the maximum to which she ever could have been entitled." Such ipse dixit fails, especially as it ignores the evidence supporting Curran.

The Trial Court Did Not Abuse Its Discretion Regarding Labor Code Fees or Costs

The School acknowledged below that Curran was entitled to attorney fees on her Labor Code claim, an acknowledgement it reiterates here, that "reasonable fees and costs could be awarded to Curran under the Labor Code." The School's second argument is that the trial court abused its discretion in the amount awarded, essentially contending that the fees sought "were not reasonable since they were largely incurred for purposes other than the prosecution of a wage claim." The argument goes on for six pages, with a potpourri of assertions, ending with this: "In short, the fee motion was grossly inflated by the inclusion of trial-related work that had nothing to do with a Labor Code cause of action." Simply put, the School makes a series of fact-based arguments, arguments made, and rejected, below. We reject them here.

Curran's motion for attorney fees was accompanied by declarations from her two attorneys, John McGuinn and Jeannette Vaccaro, both of which were accompanied by attachments detailing the specific work each had done. The essence of their testimony was, as set forth in McGuinn's declaration, that Curran's counsel spent a total of 2,430 hours on the case, and that Curran sought attorney fees for 1050 of those hours, excluding some 1380 hours spent exclusively on the unsuccessful FEHA claim for which she was not requesting compensation.

The School filed vigorous opposition, including with extensive charts purporting to itemize and segregate the various entries. Curran filed a reply, which included reply declarations of McGuinn and Vaccaro. The motion came on for three separate hearings, resulting in a reporter's transcript of close to 150 pages, transcripts that manifested that the court had a thorough knowledge of the record, and the issues before it, had in fact had done independent research, and had gone over the papers "with a fine-tooth comb."

The court began the first hearing with the observation that the "positions are very clear in your papers," later commenting "everybody did a remarkable job . . . in your declarations of responding to the hours. Taking apart the hours, responding to them." The court was "really impressed with the way [counsel] charted it out." And so it went, hearings that, as noted, were held over three separate days, producing close to 150 pages of reporter's transcripts.

Following those hearings, the trial court entered a lengthy order, which order included express recognition of Curran's counsel's segregating out the time spent on non-Labor Code items. As the court put it: "To the extent possible, [Curran's] counsel has undertaken the task of apportioning hours between those worked solely on the FEHA claims and those attributable to the Labor Code claims. To the extent that hours relate solely to the unsuccessful FEHA claims, [Curran] has not requested them." Similarly, the trial court found: "[A]ll of the hours requested in [Curran's] Motion for Attorneys' Fees have been apportioned so that they relate to the successful prosecution of the Labor Code claims. The Court notes that of the total hours expended on the case in chief, 2,430 hours, [Curran] has already apportioned the hours and reduced the number of hours sought to 1050.4. Therefore, hours spent solely on the FEHA claims have already been excised." (Fn. omitted.)

With regard to time spent on activities related to both the successful and unsuccessful claims, the trial court—who presided over the case for almost two years, including most of the pretrial motions, the six-week trial, and all posttrial motions—rejected the School's arguments that the time was not compensable because the two claims were not "interrelated." To the contrary, the trial court explained: "The fact that some of the hours requested that relate to the Labor Code claims also relate to the FEHA claims does not require that they be stricken. In fact, many of the hours are 'inextricably intertwined' making it difficult, if not impossible, to segregate. [Curran] points out, for example, that 34 of the 48 jury instructions related to all causes of action. It would be similarly impracticable to apportion time for jury selection or many of the other areas requested by [the School] such as motions in limine, where only 4 of [the School's] 17 motions in limine related solely to the FEHA claims. The fees in this case need not be further apportioned since they cannot be easily segregated."¹³

13 In light of this, the School's assertion that the "trial court was content to allow [Curran] to merely mouth the words 'interrelated' and 'intertwined' " is less than candid. At the hearing, the trial court expressly stated that "as to the hours reasonably expended, the Court went through the time records with a fine-tooth comb in trying to look and see an approach to use, because I felt that they should be looked at; I agreed with defense. And insofar as the Court does have to examine the records, and I did." The court then explained that its review of the time records demonstrated the hours spent were already apportioned to the extent possible, and that Curran's counsel was only seeking fees related to the successful Labor Code claims. Were this not enough, at the last hearing below counsel for the School said the "defense . . . appreciates the time that the Court took reviewing these papers."

In Calvo Fisher & Jacob LLP v. Lujan (2015) 234 Cal.App.4th 608, 620 (Calvo), we confirmed the principles governing here, beginning with this: "We had earlier described the standard of review in Thayer v. Wells Fargo Bank (2001) 92 Cal.App.4th 819, 832-833: 'Because the sole issue before us . . . is the amount of fees awarded, our review is deferential. " 'The "experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong"—meaning that it abused its discretion.' " (PLCM Group[, Inc.] v. Drexler [(2000)] 22 Cal.4th 1084, 1095, quoting Serrano v. Priest [(1977)] 20 Cal.3d 25, 49 . . . and citing Fed-Mart Corp. v. Pell Enterprises, Inc. (1980) 111 Cal.App.3d 215, 228 [an appellate court will interfere with a determination of reasonable attorney fees "only where there has been a manifest abuse of discretion"].)' Indeed, our colleagues in Division Four have observed that the 'only proper basis of reversal of the amount of an attorney fees award is if the amount awarded is so large or small that it shocks the conscience and suggests that passion and prejudice influenced the determination.' (Akins v. Enterprise Rent-A-Car Co. (2000) 79 Cal.App.4th 1127, 1134.)"

The award was not clearly wrong. It did not shock the conscience. There was no abuse of discretion.

Arguing to the contrary, the School makes a series of assertions, assertions, as noted, it made below, assertions the trial court rejected. We briefly address these assertions, showing why they were properly rejected.

The School asserts that "a substantial part of the claimed 'Labor Code' fees significantly predated the date on which Labor Code claims were added to Curran's pleadings, and even predated the filing of Schools' MIL No. 10 on March 13, 2013." To the contrary, the declarations showed that only a fraction of the hours requested—no more than 14 percent—predated MIL No. 10.

The School asserts that "all of the trial preparation activities in March and June 2013, and earlier, actually were related only to her discrimination claims" because those activities occurred prior to Curran amending her complaint. This is simply not so. As indicated above, this is not a situation where newly discovered information prompted an amendment to the complaint. Rather, as Curran's counsel explained at the hearing on MIL No. 10, her claim for unpaid vacation and penalty wages under the Labor Code was identified as a part of Curran's damages as early as January 2012 in Curran's responses to interrogatories, which referenced Labor Code sections 201, 203, and 218.5. Indeed, both parties were operating as if Labor Code claims were in the case, illustrated by the statement by the School's attorney at Curran's March 2013 deposition: "My understanding is one of your claimed damages in this lawsuit is that you are claiming that you are entitled to vacation pay that you were not paid by schools of the Sacred [Heart] in—at the end of the school year 2010, 2011, when your contract wasn't renewed. Are you aware that that's one of the claims you're making that you're entitled to vacation pay that was not paid to you?" In fact, MIL No. 10 was filed for the express purpose of excluding evidence of Curran's claim for unpaid vacation precisely because the School knew this was one of the claims Curran was asserting even though it was not formally pled.

The School asserts that "Curran requested 23 hours of time, at $750 per hour, for the initial research and drafting of the original complaint." That misstates the evidence, as the hours requested also included time spent reviewing Curran's documents and answering interrogatories, including Curran's assertion that " 'Curran approximates that she is owed over 70 weeks paid vacation and perhaps as much as 300 sick days, plus penalties, interest and attorneys' fees under the Labor Code.' " The School's assertion also ignores the fact that Curran omitted hours from these tasks in recognition of the time spent on activities unrelated to her Labor Code claims.

The School asserts that "more than 50 hours of time was sought, again for activities that had nothing to do with any 'Labor Code cause of action,' but were related only to Curran's discrimination and wrongful termination claims." This is also inaccurate. The hours the School takes issue with relate to work done preparing and attending the first three of Curran's five deposition sessions, all of which took place after Curran informed the School she was seeking damages for unpaid vacation. Furthermore, Curran omitted more than 55 hours related to her depositions from her fee motion because those hours were unrelated to her Labor Code claims.

The School asserts that the trial court inappropriately awarded "more than 350 hours sought in connection with trial preparation for the February, March and June 2013 trial dates, before a Labor Code claim was made" because the filings in connection with the trial dates "had nothing to do with vacation pay." To the contrary, the record demonstrates that very little of the work done in preparation for the February, March, and June 2013 trial dates was done exclusively on Curran's unsuccessful FEHA cause of action, and that time spent exclusively on the unsuccessful claim was not requested.

The last paragraph of the School's argument summarizes its position this way: the trial court awarded fees for "trial work in connection with the October 21, 2013, trial date, which had nothing to do with her Labor Code claim. She was awarded fees for numerous hearings and trial days when there was no activity or witness related to the Labor Code claim at all. The court also abused its discretion by awarding fees for full days of trial time when the Labor Code component was negligible—for instance, Curran was awarded 21.8 hours of combined attorney time for attending the trial on November 8, 2013—when the testimony regarding the vacation claim constitutes 4 minutes (or just three pages) out of a full trial day." This summary is similar to the School's earlier reference, however passingly, that "the fees awarded by the trial court encompassed virtually all of the trial time." This argument fails.

To begin with, the assertion is less than candid. Of the 478 hours attorney McGuinn spent during the trial, he sought compensation for only 157 hours, less than one-third. Similarly, attorney Vaccaro, who sought 121.8 hours of the 390 hours spent during the trial.¹⁴

14 To show the length to which the School goes, it asserts that Curran was awarded "full days of trial time when the Labor Code component was negligible," asserting that on November 8 "4 minutes" were devoted to the vacation issue. This simply ignores the balance of what occurred on November 8, and its relation to Curran's Labor Code claims, and especially her claim that the School's failure to pay was done "willfully," a determination that depended in significant part on the credibility of Devincenzi. So, on November 8 Curran testified at length, some 80 pages, about her interactions with Devincenzi, specifically: for 17 pages about how Devincenzi ignored the School's policy to investigate Curran's complaint of discrimination; for some 50 pages about how Devincenzi assisted Sharafinski in padding Curran's employment file with specious discipline; for three pages about how Devincenzi downplayed the significance of the January 21 memorandum; for four pages about Devincenzi's involvement in the March 2 memorandum; and for five pages about Devincenzi's participation in Curran's termination meeting. That is what happened on November 8, that and the fact that the last 13 pages of the transcript was a discussion between the court and counsel regarding procedural issues related to the trial.

Along the same lines, the School asserts that "Curran sought and was awarded fees for trial work in connection with the October 21, 2013, trial date, which had nothing to do with her Labor Code claim" and that "[s]he was awarded fees for numerous hearings and trial days when there was no activity or witnesses related to the Labor Code claim at all." In claimed support of this assertion, the School points to time records seeking fees for time for responding to, preparing for, and attending hearings on motions in limine, time not spent solely on Curran's unsuccessful FEHA claim. As noted by the trial court, only four of the School's 17 motions in limine related to the unsuccessful FEHA claim, and Curran did not seek compensation for the time spent on those four motions.

As quoted, the trial court found that many of the hours were " 'inextricably intertwined.' " This provides another reason why the award must stand. Again, Calvo is apt:

"A third, and separate, reason why Lujan's arguments fail is that the claims were so intertwined as to make it impracticable, if not impossible, to separate the attorneys' time, exemplified by Maxim Crane Works, L.P. v. Tilbury Constructors (2012) 208 Cal.App.4th 286 (Maxim). Maxim arose when a construction worker sued Maxim, a crane company, for personal injuries arising from a worksite incident. Maxim filed a cross-complaint against the injured worker's employer, Tilbury, seeking indemnity. The cross-complaint failed, as the trial court enforced an unfavorable choice-of-law provision in the contract written by Maxim, and found the indemnity agreement inapplicable to the employee's claim. The trial court thereafter awarded Tilbury its full attorney fees, accepting ' . . . Tilbury's contention that defense against Maxim's indemnity cross-complaint was "inextricably intertwined" with Tilbury's defense against Gorski's tort suit . . . .' (Id. at p. 297.) The Court of Appeal affirmed.

"After beginning with the observation its scope of review was 'narrow,' the court noted that ' "[t]he burden is on the party complaining to establish that discretion was clearly abused and a miscarriage of justice resulted." (Carver v. Chevron U.S.A., Inc. (2004) 119 Cal.App.4th 498, 505; see Thompson Pacific Construction, Inc. v. City of Sunnyvale (2007) 155 Cal.App.4th 525, 556 ["The trial court . . . was in the best position to determine whether the issues were so intertwined that allocation would . . . be impossible."].)' (Maxim, supra, 208 Cal.App.4th at pp. 297-298.) Maxim then concluded with this:

" 'The California Supreme Court has stated that, "Attorney's fees need not be apportioned when incurred for representation on an issue common to both a cause of action in which fees are proper and one in which they are not allowed." (Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 129-130; see Abdallah v. United Savings Bank (1996) 43 Cal.App.4th 1101, 1111.)

" 'Further, "Apportionment is not required when the claims for relief are so intertwined that it would be impracticable, if not impossible, to separate the attorney's time into compensable and noncompensable units." (Bell v. Vista Unified School Dist. (2000) 82 Cal.App.4th 672, 687; see Drouin v. Fleetwood Enterprises (1985) 163 Cal.App.3d 486, 493 ["Attorneys fees need not be apportioned between distinct causes of action where plaintiff's various claims involve a common core of facts or are based on related legal theories."].)' (Maxim, supra, 208 Cal.App.4th at p. 298.)" (Calvo, supra, 234 Cal.App.4th at pp. 625-626.)

In sum, the trial court thoroughly reviewed the time records and rejected the School's various arguments that the hours sought by Curran's counsel were unrelated to the Labor Code claims. And contrary to the School's assertion that the trial court blindly awarded Curran fees unrelated to her successful Labor Code claims, as the trial court put it, it "went through the time records with a fine-tooth comb" and determined "all of the hours requested in [Curran's] Motion for Attorneys' Fees have been apportioned so that they relate to the successful prosecution of the Labor Code claims." "To the extent that hours relate solely to the unsuccessful FEHA claims, [Curran] has not requested them." There was no abuse of discretion.

In a brief, one-page argument, the School contends that the amount of attorney fees awarded is not proportional to the amount Curran recovered.

"[P]rompt payment of wages due an employee is a fundamental public policy of this state." (Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1147.) Because it is, the Labor Code authorizes prevailing party attorney fees because of the importance of these lawsuits in vindicating this policy. As the Ninth Circuit has recognized, such awards "ensure that neither financial imperatives nor market considerations raise an insurmountable barrier that prevents attorneys from litigating meritorious cases, and even a relatively small damages award 'contributes significantly to the deterrence of civil rights violations in the future.' " (Beaty v. BET Holdings, Inc. (9th Cir. 2000) 222 F.3d 607, 612, quoting Riverside v. Rivera (1986) 477 U.S. 561, 575; see also Serrano v. Unruh (1982) 32 Cal.3d 621, 624, 632.) Thus, as the United States Supreme Court held long ago, an award of attorney fees need not be proportional to the amount of the judgment. (Riverside v. Rivera, supra, at p. 574; Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1251; also see Muniz v. United Parcel Service, Inc. (9th Cir. 2013) 738 F.3d 214, 222 [FEHA sex discrimination case; recovery of $27,280; attorney fee award of $696,162.78].)

The School cites four cases for the proposition that " 'reasonable attorney's fees' under the Labor Code must bear some rational relationship to the amount of money damages": Farrar v. Hobby (1992) 506 U.S. 103, 114; Migis v. Pearle Vision, Inc. (5th Cir. 1998) 135 F.3d 1041, 1048; Cole v. Wodziak (7th Cir. 1999) 169 F.3d 486, 488; and Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 991 (Chavez). None is applicable.

Farrar v. Hobby held that "[w]hen a plaintiff recovers only nominal damages because of his failure to prove an essential element of his claim for monetary relief, . . . the only reasonable fee is usually no fee at all." (Farrar v. Hobby, supra, 506 U.S. at p. 115.) Curran's recovery was not nominal. (Muniz v. United Parcel Service, Inc., supra, 738 F.3d at p. 225 [recovery of $27,280 not insignificant]; Morales v. City of San Rafael (9th Cir. 1996) 96 F.3d 359, 362-363 [jury award of $17,500 was neither nominal nor minimal].)

Chavez denied an award of attorney fees to a prevailing FEHA plaintiff based on Code of Civil Procedure section 1033, subdivision (a), which explicitly authorizes denial of attorney fees to a prevailing plaintiff who recovers an amount less than the $25,000 jurisdictional limit for a limited civil case. (Chavez, supra, 47 Cal.4th at pp. 982-983.) And Migis v. Pearl Vision, Inc. and Cole are based on local circuit precedent.

Finally on this point, the School asserts that the trial court "acknowledged that the award was disproportionate when compared to the jury's award, but brushed off such concerns." To the contrary, the order expressly states "the court is mindful that an award of attorney fees need not be proportional to the amount of recovery."¹⁵

15 To the extent that the School apparently contends that no prefiling fees are recoverable, it is belied by its concession below, that "[o]f course [Curran's] entitled to some precomplaint costs." In any event, the law is otherwise. As our Presiding Justice Kline confirmed, " 'if suit is filed, there is no sound reason why the trial court should exclude these prior services in determining a reasonable fee merely because performed before the action is commenced. . . . It would be ridiculous to require the attorney to repeat formally all of this work after the complaint is filed in order to protect his client's rights [to recover fees].' " (Stokus v. Marsh (1990) 217 Cal.App.3d 647, 655, quoting La Mesa-Spring Valley School Dist. v. Otsuka (1962) 57 Cal.2d 309, 317.)

The Trial Court Properly Awarded Costs to Curran—and Denied Them to the School

In January 2013, the School served the 998 offer, providing that the School would pay Curran $65,000 and also waive costs in exchange for a filed dismissal with prejudice as to "the entire action, including any and all causes of action therein." The offer expired. The School's final argument is that the trial court erred in awarding costs to Curran and denying costs to the School, an argument based on the claim that the trial court "misapprehended and misapplied" section 998.

Both Curran and the School filed memoranda of costs, Curran for $89,410.40, the School for $112,810.28. Both sides moved to tax, both asserting arguments based primarily on section 998. The trial court held for Curran, ruling that she was the prevailing party, that she obtained a judgment "more favorable" than the $65,000 in the 998 offer, and was entitled to costs.

The essence of the School's argument is that Curran did not receive a more favorable judgment because she did not recover for the claims that were formally in her complaint in January 2013. As the School argues: "The 998 offer was issued on January 8, 2013, shortly before the February 19, 2013 trial date and while Schools' summary judgment motion was awaiting hearing. There were only four causes of action in the Complaint: age/gender discrimination, failure to prevent and retaliation under the FEHA, and wrongful termination. [¶] After the 998 expired, the trial court dismissed two FEHA causes of action (gender discrimination and retaliation) on Schools' motion for summary judgment. Curran voluntarily dismissed her tort claim during trial, and the jury found for Schools on age discrimination. As such, Curran was awarded 'zero' on all causes of action encompassed within the 998 offer."

The School's position is premised on two cases it cites for the proposition that the court must look at the status of the litigation at the time the 998 offer was made: Guerrero v. Rodan Termite Control, Inc. (2008) 163 Cal.App.4th 1435 (Guerrero) and Hartline v. Kaiser Foundation Hospitals (2005) 132 Cal.App.4th 458 (Hartline). The School reads these cases too broadly, as neither addresses the basis of the School's argument—that the status of the litigation looks only to what claims are formally alleged at the time of the offer.

Guerrero involved a verdict that was reduced to zero based on a settlement that occurred after the 998 offer. (Guerrero, supra, 163 Cal.App.4th at p. 1435.) No settlement is involved here. Hartline involved a 998 offer that contained no monetary terms and the issue was whether the offer was in good faith. (Hartline, supra, 132 Cal.App.4th at p. 458.) A "more favorable judgment," the issue here, was not in issue there.

Elrod v. Oregon Cummins Diesel, Inc. (1987) 195 Cal.App.3d 692, a case cited by the School, is instructive. The case involved an accident in which a truck driver was severely injured and rendered a paraplegic in an accident that occurred while he was driving a logging truck. He filed a lawsuit against appellant company that had repaired the brake system on the truck. Appellant made a 998 offer, which expired. The jury found that the truck driver suffered damages, but that appellant was entitled to credit against the verdict for a separate settlement, and under this reasoning, the driver took nothing from appellant. The trial court ruled that the 998 offer was a token one, and the Court of Appeal agreed, holding that the trial court could have properly concluded that appellant's offer, when made, was an unreasonable prediction of the amount of money appellant would have to pay following a trial. Doing so, the court made this observation: "As a general rule, the reasonableness of a defendant's offer is measured, first, by determining whether the offer represents a reasonable prediction of the amount of money, if any, defendant would have to pay plaintiff following a trial, discounted by an appropriate factor for receipt of money by plaintiff before trial, all premised upon information that was known or reasonably should have been known to the defendant." (Elrod v. Oregon Cummins Diesel, Inc., supra, at p. 699, fn. omitted.)

As to the information known to the School in January 2013, it included—as its own brief acknowledges—that in an early interrogatory answer, the School was advised that the Labor Code was involved in the litigation, the answer referring to sections 201, 203, and 218.5 As the School further describes it, Curran "initially said that the damages caused by discrimination, retaliation and wrongful termination included lost wages, lost vacation and lost sick pay. On March 9, 2012, she added that she was entitled to relief under the Labor Code for alleged failure to pay vacation."

The School's position is simply that the vacation pay claim was not formally in the complaint, and thus apparently not "therein" as described in the 998 offer. This, we conclude, is not determinative. And not the law.

The plain language of section 998 indicates that costs shift only if "the plaintiff fails to obtain a more favorable judgment or award" than the 998 offer. (Code Civ. Proc., § 998, subd. (e).) Nothing in the statute makes reference to claims or causes of action, nothing referring to what was formally pled. If the language of a statute is unambiguous, the Legislature is presumed to have meant what it said and the plain meaning of the statute governs. (Hunt v. Superior Court (1999) 21 Cal.4th 984, 1000.)

Furthermore, as we ourselves have confirmed, California courts have repeatedly found that the legislative purpose of encouraging settlement is better served by " ' "bright line rules" ' " that can be applied to 998 offers. (Sanford v. Rasnick (2016) 246 Cal.App.4th 1121, 1129, quoting Barella v. Exchange Bank (2000) 84 Cal.App.4th 793, 799.) Accepting the School's contention that section 998 requires a court to compare the outcome on each cause of action in the complaint at the time of the 998 offer would be unworkable, and would promote uncertainty as to the application of section 998 whenever a party amends the complaint after a 998 offer or prevails on some claims and not others. We conclude the plain meaning of the statute controls, exactly as the trial court stated: "I looked to the wording of the statute where you compare the award to the 998 offer, and I don't believe that it's necessary for the Court to separate out the causes of action."

An additional reason supporting our conclusion is that section 998 permits a party to take advantage of its cost shifting benefits by making multiple offers, up until 10 days before trial. (Code Civ. Proc. § 998, subd. (b).) As recognized by the California Supreme Court, "[t]he more offers that are made, the more likely the chance for settlement." (T.M. Cobb Co. v. Superior Court (1984) 36 Cal.3d 273, 281.) The court also recognized the importance of the offeror's ability to revise an offer if the litigation changes or new evidence develops. When the value of the litigation changes, an offeror has two choices: make a new 998 offer or proceed to trial in hopes that the offeree will not obtain a more favorable judgment than the 998 offer already made. (Ibid.)

On July 16, 2013, more than three months before trial, Curran was granted leave to amend her complaint. At that time, the School was aware that the addition of these claims substantially changed the value of the case. Indeed, at the hearing on the motion to amend, the School argued the addition of the Labor Code claims "turn[s] this case from a case seeking, in hard damages, two months' worth of pay . . . 17,500 lost wages to an additional over $200,000, supposedly, that's now due on that issue." The School could have issued a new section 998 offer in order to avail itself of the protections of section 998 in light of this change. It did not.

DISPOSITION

The judgment is affirmed in part and reversed in part, and the case remanded for further proceedings so that Curran can pursue her claim for retaliation. In all other respects, the judgment is affirmed. Curran shall recover her costs on appeal.

/s/_________

Richman, J. I concur: /s/_________
Kline, P.J.

Respectfully, I dissent. I would affirm the grant of summary adjudication to School¹⁶ on Curran's FEHA retaliation claim because Curran failed to meet her burden to provide evidence sufficient to support an inference that her termination was in retaliation for her complaint of discrimination. Further, I would reverse the verdict on Curran's Labor Code claim, in which she alleged she was not fully paid for accrued vacation because there was no substantial evidence of the prior vacation policy she contended allowed her to accrue hundreds of days of vacation time. Accordingly, I would also reverse the attorney fee award that was based on Curran's status as the prevailing party on her Labor Code claim.

16 For consistency, I adopt the majority's use of "School," or "Sacred Heart" to refer to the entire four-school group known as Schools of the Sacred Heart.

CURRAN'S APPEAL FROM SUMMARY ADJUDICATION

In addressing Curran's appeal from the grant of summary adjudication, the majority gives a cramped interpretation to our summary judgment statute that would virtually preclude its use in FEHA cases. The majority seeks to return to the days when summary judgment was viewed as a "disfavored" mechanism for resolving cases, rather than " 'a particularly suitable means to test the sufficiency' of the plaintiff's or defendant's case." (Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th 536, 542.) It ignores our high court's precedents, including Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317 (Guz), which prescribes the approach to summary judgment motions in FEHA cases where a plaintiff relies on circumstantial evidence of intent.

In Guz, our high court adopted the "three-stage burden-shifting test established by the United States Supreme Court" in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 (McDonnell Douglas) as the framework for reviewing summary judgment motions in FEHA discrimination cases. (Guz, supra, 24 Cal.4th at p. 354.) In Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz), the court held the same test applies to FEHA retaliation claims. The majority ignores the burden-shifting framework and draws an inference of retaliation from Curran's evidence alone. Its approach is problematic for many reasons.

First, Guz requires that summary judgment be granted if "the evidence as a whole is insufficient to permit a rational inference that the employer's actual motive was discriminatory [or retaliatory]." (Guz, supra, 24 Cal.4th at p. 361, italics added; see also Code Civ. Proc. § 437c, subd. (c) [in determining whether there is no triable issue of material fact, court shall consider "all of the evidence set forth in the papers," italics added.) The majority fails to consider whether the inference it draws is reasonable in light of the entire record. In my view, it is not.

Second, the majority's inference of retaliation is based on further inferences that in turn are based on speculation, violating the principle that inferences not reasonably deducible from the evidence do not create triable issues of fact. (Joseph E. Di Loreto, Inc. v. O'Neill (1991) 1 Cal.App.4th 149, 161; Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 807 (Horn); Code Civ. Proc. § 437c, subd. (c).)

Third, the majority relies heavily on Curran's assertions that School's criticisms of her performance were unjustified and that the incidents leading to those criticisms were not as Sacred Heart described them. But as Guz instructs, "If nondiscriminatory [or nonretaliatory], [the employer's] true reasons need not necessarily have been wise or correct." (Guz, supra, 24 Cal.4th at p. 358.) It is not enough for the plaintiff to show merely that the reasons given are " ' "wrong or mistaken, since the factual dispute at issue is whether discriminatory [or retaliatory] animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent." ' " (Reeves v. MV Transp. Inc. (2010) 186 Cal.App.4th 666, 673-674, quoting Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1005 (Hersant)).

Finally, the majority understates the plaintiff's burden on summary judgment, conflating the first prong (the prima facie showing) with the third prong of McDonnell Douglas. The majority states that "very little evidence" is required to show intent and summary judgment is "rarely appropriate" in FEHA cases. Guz holds otherwise. Once the employer has proffered a legitimate nonretaliatory basis for its decision under the second prong of McDonnell Douglas, "[i]t is not sufficient for an employee to make a bare prima facie showing or to simply deny the credibility of the employer's witnesses or to speculate as to discriminatory motive." (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 862 (Serri).) Rather, the employee must "produce 'substantial responsive evidence' demonstrating the existence of a material triable controversy as to pretext or discriminatory [or retaliatory] animus on the part of the employer." (Ibid.) By failing to measure Curran's showing against this standard, the majority errs.

A. Legal Framework

1. Summary Adjudication

"A defendant moving for summary judgment meets this burden by presenting evidence demonstrating that one or more elements of the cause of action cannot be established or that there is a complete defense to the action. ([Code Civ. Proc., § 437c], subds. (o), (p)(2); Aguilar [v. Atlantic Richfield Co. (2001)] 25 Cal.4th [826,] 849-850, 853-854 [(Aguilar)].) Once the defendant makes this showing, the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action or defense. ([Code Civ. Proc.,] § 437c, subd. (p)(2); see Aguilar, at p. 850.) Material facts are those that relate to the issues in the case as framed by the pleadings. [Citation.] There is a genuine issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof." (Serri, supra, 226 Cal.App.4th at pp. 859-860.)

"In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact." (Code Civ. Proc., § 437c, subd. (c).) " ' "[I]f the non-moving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation," summary judgment may be appropriate even where intent is an issue.' " (Nelson v. United Technologies (1999) 74 Cal.App.4th 597, 614.) "[E]ven though the court may not weigh the plaintiff's evidence or inferences against the defendants' as though it were sitting as the trier of fact, it must nevertheless determine what any evidence or inference could show or imply to a reasonable trier of fact." (Aguilar, supra, 25 Cal.4th at p. 856.)

2. FEHA Claims and McDonnell Douglas

Curran's retaliation claim is based on California's Fair Employment and Housing Act, or FEHA (Gov. Code, §§ 12900 et seq.),¹⁷ which makes it an unlawful employment practice for an employer " 'to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under' FEHA." (Husman v. Toyota Motor Credit Corp. (2017) 12 Cal.App.5th 1168, 1192; § 12940, subd. (h).) "[T]o 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." (Yanowitz, supra, 36 Cal.4th at p. 1042, italics added.) The causal link element required to satisfy plaintiff's first prong burden may be established "by producing evidence of nothing more than the employer's knowledge that the employee engaged in protected activities and the proximity in time between the protected action and the allegedly retaliatory employment decision." (McRae v. Dept. of Corrections and Rehabilitation (2006) 142 Cal.App.4th 377, 388 (McRae).) If the plaintiff meets her initial burden, a presumption of discrimination or retaliation arises (Guz, supra, 24 Cal.4th at p. 355), and "the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action." (Yanowitz, at p. 1042.)

17 Undesignated references to statutory sections hereafter are to the Government Code.

The employer's burden under the second prong is to articulate a legitimate reason for its employment decision, that is, one unrelated to retaliation or discrimination. This "likewise is not an onerous burden [citation], and is generally met by presenting admissible evidence showing defendant's reason for its employment decision." (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 160 (Wills).) "[I]f nondiscriminatory [or nonretaliatory], [the employer's] true reasons need not necessarily have been wise or correct." (Guz, supra, 24 Cal.4th at p. 358.) " 'It is the employer's honest belief in the stated reasons for firing an employee and not the objective truth or falsity of the underlying facts that is at issue in a discrimination case.' " (Wills, at p. 170.)

"If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation 'drops out of the picture,' and the burden shifts back to the employee to prove intentional retaliation." (Yanowitz, supra, 36 Cal.4th at p. 1042.) "The plaintiff must then have the opportunity to attack the employer's proffered reasons as pretexts for discrimination, or to offer any other evidence of [retaliatory] motive." (Guz, supra, 24 Cal.4th at p. 354.) "An inference of intentional discrimination [or retaliation] cannot be drawn solely from evidence, if any, that the company lied about its reasons. The pertinent statutes do not prohibit lying, they prohibit discrimination. [Citation.] Proof that the employer's proffered reasons are unworthy of credence may 'considerably assist' a circumstantial case of discrimination, because it suggests the employer had cause to hide its true reasons. [Citation.] Still there must be evidence supporting a rational inference that intentional discrimination [or retaliation], on grounds prohibited by the statute, was the true cause of the employer's actions. [Citation.] Accordingly, the great weight of federal and California authority holds that an employer is entitled to summary judgment if, considering the employer's innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that the employer's actual motive was discriminatory." (Id. at pp. 360-361, italics added.)

Since Guz and Yanowitz were decided, California's appellate courts, applying McDonnell Douglas in the context of summary judgment, have discussed a plaintiff's third-stage burden, after a defendant has established nondiscriminatory reasons for its employment decision. "It is not sufficient for an employee to make a bare prima facie showing or to simply deny the credibility of the employer's witnesses or to speculate as to discriminatory motive. [Citations.] Rather it is incumbent upon the employee to produce 'substantial responsive evidence' demonstrating the existence of a material triable controversy as to pretext or discriminatory [or retaliatory] animus on the part of the employer." (Serri, supra, 226 Cal.App.4th at p. 862; accord, Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 591.) More precisely, as this court explained in Morgan v. Regents of University of Cal. (2000) 88 Cal.App.4th 52 (Morgan), while a plaintiff is required to produce "very little" direct evidence of the employer's discriminatory motive, "[c]ircumstantial evidence of 'pretense' must be 'specific' and 'substantial' in order to create a triable issue with respect to whether the employer intended to discriminate" on an improper basis." (Id. at p. 69; accord, Chin et al., Cal. Practice Guide: Employment Litigation (The Rutter Group 2016) ¶¶ 5:1650 to 5:1652, pp. 5(II) 29 to 5(II) 30.) "The employee's 'subjective beliefs . . . do not create a genuine issue of fact; nor do uncorroborated and self-serving declarations.' [Citation.] 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.' " (Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1159 (Featherstone), quoting King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433.)

Temporal proximity, although sufficient to meet the plaintiff's initial burden, "does not, without more, suffice also to satisfy the secondary burden borne by the employee to show a triable issue of fact on whether the employer's articulated reason was untrue and pretextual." (Loggins v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102, 1112 (Loggins); accord, Arteaga v. Brinks, Inc. (2008) 163 Cal.App.4th 327, 334 (Arteaga).) Nor will it suffice for the employee to " ' "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. [Citations.] Rather, 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 'unworthy of credence,' [citation], and hence infer 'that the employer did not act for the [the asserted] non-discriminatory reasons.' " ' " (Serri, supra, 226 Cal.App.4th at p. 863; accord, Hersant, supra, 57 Cal.App.4th at p. 1005 ["What the employee has brought is not an action for general unfairness but for [retaliation]"].) Therefore, a plaintiff seeking to avoid summary judgment under the McDonnell Douglas framework must . . . show a genuine issue of fact about whether the employer acted based on an intent to retaliate rather than on a good faith belief that the employee violated a workplace rule' " or her performance was subpar. (Joaquin v. City of Los Angeles (2012) 202 Cal.App.4th 1207, 1223.) To show pretext the plaintiff must show both that the reason given was false and that that the "real reason" was discrimination or retaliation. (Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 1003 (Hicks).)

3. The Majority's Legal Errors

The majority misconstrues the plaintiff's burden at the third prong of McDonnell Douglas, suggesting a causal link between retaliation and termination "may be established 'by producing evidence of nothing more than the employer's knowledge that the employee engaged in protected activities and the proximity in time between the protected action and the allegedly retaliatory employment decision.' " (Maj. Opn., p. 19, quoting McRae, supra, 142 Cal.App.4th at p. 388.) This is inaccurate. As indicated by the majority's partial quotation of McRae, it has conflated the plaintiff's relatively light first-prong burden under McDonnell Douglas with the more substantial third-prong burden. The complete sentence from which the majority's partial quotation of McRae is derived is this: "A plaintiff can satisfy his or her initial burden under the test by producing evidence of nothing more than the employer's knowledge that the employee engaged in protected activities and the proximity in time between the protected action and the allegedly retaliatory employment decision." (McRae, at p. 388, italics added.) This refers to the first-prong, not the third-prong, showing. As explained above, the third prong presents a considerably higher threshold. (See Loggins, supra, 151 Cal.App.4th at p. 1112; Arteaga, supra, 163 Cal.App.4th at p. 334.)

The majority also makes much of our prior opinion in Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243 (Nazir), pointing out it has been cited in various cases and publications. (Maj. Opn., pp. 4, 5, 6, 17, 20.) Much of the citation of Nazir has been on subjects not relevant here, specifically, whether a trial court must expressly rule on objections to evidence and whether a party waives objections on which the trial court fails to rule.¹⁸ The majority cites to Nazir not for its discussion of evidentiary objections but for three propositions pertaining to a plaintiff's burden opposing summary judgment in a FEHA case.

18 See, e.g., Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532 (citing Nazir as example of litigants filing abusive objections). Reid implicitly agreed in part and disagreed in part with Nazir's holdings regarding objections. It rejected the rule that a party's failure to actually obtain a trial court ruling on objections waives the objections for purposes of appeal. (Reid, at pp. 531, 532; compare Nazir, supra, 178 Cal.App.4th at p. 255.) However, it agreed with this court that it is error for a trial court not to rule on objections. (Reid, at p. 532; see Nazir, at p. 257 [abuse of discretion to issue blanket ruling on objections].)

The first is that " 'very little evidence of intent is necessary to defeat summary judgment.' " Nazir contains this language (Nazir, supra, 178 Cal.App.4th at p. 283), but it is dicta. As Justice Richman wrote in that case, "There was plenty of evidence here." (Ibid.)¹⁹ As I have discussed, at prong three of McDonnell Douglas, "there must be evidence supporting a rational inference that intentional discrimination [or retaliation], on grounds prohibited by the statute, was the true cause of the employer's actions." (Guz, supra, 24 Cal.4th at p. 361, italics omitted.) "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.' " (Featherstone, supra, 10 Cal.App.5th at p. 1159.)

19 In Nazir, the inference that the plaintiff was fired in retaliation for his complaints about his supervisor and co-workers was reasonable because the plaintiff, after having complained for years first to and later about his supervisor regarding the failure to address severe and ongoing racial harassment by plaintiff's co-workers, eventually took stress leave, was asked by his supervisor before he returned to demote himself to a subordinate position rather than returning to the management position which had "caused him so much pain," had declined to do so, had returned to mistreatment by his supervisor and continued harassment, and three weeks after complaining again was fired. The harassment had been clear and pervasive, with co-workers calling plaintiff, a person of Pakistani descent and a practicing Muslim, such names as "sand nigger," "sand flea," "rag head," "camel jockey" and a "f*cking Muslim[]," subjecting him to derogatory racist and obscene flyers, vandalizing his car and accusing him of being a terrorist; supervisors who had witnessed and been told of these incidents had taken no action to stop them. (Nazir, supra, 178 Cal.App.4th at pp. 258-260.) Further, the reason given for the plaintiff's termination was a single incident of alleged harassment that was investigated by the supervisor to whom and about whom the plaintiff had complained. (Id. at pp. 276-277.)

Second, the majority quotes Nazir for the proposition that "a judge should not grant summary judgment unless the evidence cannot support any reasonable inference for the plaintiff." (Maj. Opn., p. 5.) I have no quarrel with that statement. But the corollary is that "an employer is entitled to summary judgment if, considering the employer's innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that the employer's actual motive was discriminatory [or retaliatory]." (Guz, supra, 24 Cal.4th at p. 361, italics added.) The majority fails to apply this corollary because in drawing the inference of retaliatory motive it does not consider the evidence "as a whole." It looks only at Curran's evidence and ignores the evidence proffered by School.

Finally, the majority cites Nazir for the proposition that employment cases involve issues of intent and motive, which are questions of fact that "are rarely appropriate for disposition on summary judgment." (Maj. Opn., p. 6.) Motive is of course a question of fact, and it is one that will be at issue in many, if not most, discrimination and retaliation cases. But this does not mean summary judgment cannot be granted if the record does not support a finding that the employer acted with an illegal motive.

In Horn, we affirmed summary judgment for an employer on a claim of age discrimination because the employee failed to meet his burden under the third prong of McDonnell Douglas. (Horn, supra, 72 Cal.App.4th at pp. 801, 806, 807-808.) We rejected the employee's "argument that summary judgment should have been denied because the case turns on the state of mind of [the plaintiff's superiors]." (Id. at p. 817.) Considering the entire record, we concluded the employee had "failed to produce substantial evidence that the reasons given by [the employer] for his termination were either 'ever-shifting' or disingenuous." (Id. at p. 816.) Similarly, in Morgan, supra, 88 Cal.App.4th at page 76, we affirmed summary judgment, noting the " 'decisionmaker's motive and state of mind will almost always be in dispute in such cases,' but 'the plaintiff " 'must do more than establish a prima facie case and deny the credibility of the [defendant's] witnesses.' " ' " Contrary to the majority's insistence that because they involve issues of intent FEHA cases "are rarely appropriate for disposition on summary judgment," in Horn, Morgan and many other FEHA cases, we and other courts have granted or affirmed summary adjudication where intent was an issue.²⁰ Indeed, Guz was just such a case, and our high court there cited with approval numerous prior employment discrimination cases affirming summary judgment, including our decision in Horn. (See Guz, supra, 24 Cal.4th at p. 361 & fn. 24.)

20 E.g., Nakai v. Friendship House Association of American Indians, Inc. (2017) 15 Cal.App.5th 32, 41-42 (discrimination); Serri, supra, 226 Cal.App.4th at pp. 862-868 (discrimination); McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510, 1529-1537 (discrimination); Kelley v. Conco Companies (2011) 196 Cal.App.4th 191, 204-207, 211-212 (discrimination and retaliation), superseded by statute on other grounds as stated in Taylor v. Nabors Drilling USA (2014) 222 Cal.App.4th 1228, 1239, fn. 2; Scotch v. Art Institute of California-Orange County, Inc. (2009) 173 Cal.App.4th 986, 1005-1009, 1020-1021 (discrimination and retaliation); Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 989-999 (retaliation); Arteaga, supra, 163 Cal.App.4th at pp. 341-357 (discrimination and retaliation); King v. United Parcel Service, Inc., supra, 152 Cal.App.4th at pp. 432-438, 444 (discrimination); Loggins, supra, 151 Cal.App.4th at pp. 1109-1113 (retaliation); Slatkin v. University of Redlands (2001) 88 Cal.App.4th 1147, 1155-1160 (discrimination); Nelson v. United Technologies, supra, 74 Cal.App.4th at pp. 612-615 (retaliation); Hersant, supra, 57 Cal.App.4th 997, 1004 (discrimination); University of Southern California v. Superior Court (1997) 222 Cal.App.3d 1028, 1039 (discrimination).

B. The Evidence

We do not rely on the majority's statement of facts, entitled "The Facts as They Must Be Seen." As its title hints, the section is not a fair recitation of the evidence submitted by both parties. It omits School's evidence, which is mostly undisputed. From the majority's recitation, one might assume the record consists of acts that were in fact "discrimination," complaints about that "discrimination," a decision to solicit fake evidence and a meeting for that same nefarious purpose, a list of incidents—all fabricated—detailing events that never happened, and a pre-determined decision to end Curran's employment in retaliation for her complaints. The majority asserts as "fact" its (and Curran's) hypothesis that Sharafinski, the subject of Curran's complaints, commanded four administrators, aided by the School's human resources director, to manufacture problematic incidents so he could retaliate against her. To explain why this hypothesis is not supported by the record as a whole requires a more accurate and complete description of that record.

1. School's Evidence

In 2009, Sharafinski was promoted to Director of School with general authority over all four Sacred Heart schools, the girls' and boys' high schools (Convent and Stuart Hall) and two elementary schools. That summer, he and School's trustees decided to consolidate the existing separate positions of Dean of Students and Dean of Studies at each high school into a single Dean position at each to "streamline the administrative teams and link the two high schools." Each high school would have a Head and a Dean, and the primary functions of the Dean would be to "assist the Head of [that high] School with student discipline, supervise teachers and staff, and oversee the academic program and academic counseling." When School consolidated the two deanships at each high school into one, it created two new positions, Curriculum Coordinator and Student Life Coordinator, which would be subordinate to the Heads and Deans and have responsibilities at both Convent and Stuart Hall. These changes would take effect in the 2010-2011 school year.

Since 1984, Curran had been Convent's Dean of Students. Her primary responsibilities had been "student discipline and student events," rather than academic matters. Sharafinski believed Rachel Simpson, who had taught English and French for 13 years and then served as Dean of Studies at Stuart Hall, was a better candidate than Curran to fill the new single Dean position at Convent. Curran had limited experience with curricular issues, had not taught for nearly 30 years, had taught primarily physical education and lacked "demonstrated skills and background . . . to deal with the faculty." Simpson had not been at School as long as Curran, but had curriculum and faculty oversight experience as Dean of Studies at Stuart Hall and as Chair of the Language Department. Simpson had also taught at the University of San Francisco.

Besides Simpson, Sharafinski tapped two other people and hired a third to assume the Head and Dean positions under the new structure. Andrea Shurley had been promoted to Head of Convent in July 2010 and would remain in that role. Anthony Farrell was promoted to Interim Head of Stuart Hall in July 2009, replacing Sharafinski. He would remain in that role. Ren Marquette was hired to fill the new Dean position at Stuart Hall.

In November 2009, Sharafinski told Curran of the coming changes and offered her one of the new subordinate positions, Student Life Coordinator. Her responsibilities would be to both high schools and she would be supervised by the Heads and Deans of both.

Curran was unhappy with Sharafinski's decision. In an email she sent Sharafinski after they met, she referred to his statement that Shurley could not "come into her own with my strong leadership and that she needs the opportunity to shine by naming her own Dean." Curran responded that Shurley lacked "strong leadership skills and social awareness graces," "[o]ur faculty meetings and Faculty orientations have not [been] good," she hoped Shurley's "leadership [would] improve" and she had "tried to give [Shurley] guidance" and was "not trying to outshine her."

Sharafinski met with Curran several more times from November 2009 through February 2010 to discuss the reorganization and Curran's new role. They also met with Shurley to review Curran's new job description. In April 2010, Sharafinski announced the changes to parents and students of the high schools. Curran accepted the Student Life Coordinator position, effective the following school year.

On September 1, 2010, soon after the new school year began, Curran sent an email to Juli Devincenzi, the Human Resource Director for School, stating that for "2 years" she had been "subjected to conversations with Gordon Sharafinski that have given me great concern and now great distress in the manner in which I have been addressed, spoken to and treated." She felt she had been "mistreated and discriminated against as we have gone through the process of a new structure at [Convent] and [Stuart Hall]." She complained of statements Sharafinski had made to her in a meeting that day, "some of which I found to be extremely offensive, and of a threatening and intimidating in [sic] nature." Sharafinski, she said, "singled me out in stating that he felt that I have created a culture in our [Convent] faculty that he dislikes as our faculty was the only one which asked questions of him (regarding our [Convent] community and [Stuart Hall] reality, co ed classes and the plan for the future) as he addressed our faculty at our orientation on August 19 . . . ." She complained that Sharafinski's "tone" in addressing "our faculty" at that meeting was "not positive," he reprimanded one of "our faculty publicly and was very unprofessional," Convent faculty were "outraged" and "[t]his feels like our faculty is being discriminated against too." She complained of "hostile treatment which I am receiving from the Director of Schools and perhaps others." She said Sharafinski had "threaten[ed] my renewal of contract" and asked to discuss these issues with Devincenzi.

Devincenzi and a School attorney, Ann Miller, met with Curran. Curran complained about "14 topics," including her dissatisfaction with Simpson's appointment as Convent's Dean, her views that Shurley was not qualified to be Head and the appointment of Simpson to fulfill that role while Shurley was on maternity leave was not appropriate, her concern about working for Simpson, who was "keeping her down," and Sharafinski's disrespectful treatment of her. She demanded an explanation of the changes School was implementing.

The next day, Devincenzi met with Simpson. Simpson was "very upset and reported to [Devincenzi] that she felt 'physically intimidated' by Celine Curran," and that Curran had "yelled at her," "wagged her finger" and "been very aggressive towards her after an August 19, 2010 faculty orientation meeting."

On October 6, 2010, Curran sent another email to Devincenzi in which she thanked Devincenzi for "provid[ing] me the professional arena to address my great concerns." She stated her readiness "to meet with you again and come up with a plan that follows up on my concerns and continue to question decisions and actions that seem to continue to create a hostile environment and a sense of discrimination." She complained that her and Douglas Grant's (the former Convent Dean of Studies) nameplates were removed from their offices, asked whether Simpson had been encouraged to "distance herself" from Curran and Grant, and complained there was now "no collaboration on any administrative decisions" at Convent and she had not been "invited to any meetings [or] ever seen an agenda" for an upcoming event.

On October 14, 2010, Devincenzi met with Curran and Sharafinski to follow up on her earlier meeting with Curran and review Curran's October 6 email. Curran "again complained about Simpson's appointment as Interim Head and her perception she [Curran] was being excluded from decision making." Sharafinski explained his reasons for appointing Simpson and said it was no longer Curran's job to make certain decisions which would be made by Simpson. Devincenzi and Sharafinski decided to conduct a series of meetings with the high school teams "to clarify [Curran's] job description and her role" and the "job descriptions and the role of the new administration." Two two-hour meetings in October 2010 and two additional meetings in November 2010 took place with Curran, Devincenzi, Sharafinski and Heads and Deans of Convent and/or Stuart Hall. In addition to these "team building meetings," Devincenzi met regularly with Curran and Sharafinski "to check in and see how things were going."

According to School, but disputed by Curran, there was discussion during the team building meetings about incidents in which Curran did not go through proper channels for approval and did not support the administration once a decision had been made, and that Curran "was observed to be defensive and hostile."

Notwithstanding the meetings, there were "continuing frictions with Curran" through the fall of 2010. She repeatedly complained about Simpson, expressed her view that Simpson lacked the qualifications and experience for the Dean and interim Head positions at Convent, and stated Shurley was not qualified to be Head of Convent. In August 2010, she criticized Simpson's handling of a faculty meeting and argued with Farrell about his decision not to purchase a canopy for the track and cross-country teams; in September 2010 she moved the check-in location for Back-to-School Night without consulting Simpson, assuming its placement had been a "mistake," disagreed with Simpson about the location for a faculty in-service day, and attended and "fielded a majority of the questions" at the admissions tours despite Shurley having requested that the tours be led by the Head and Admissions Staff, because, in Curran's view, Simpson (who was serving as Interim Head) "was new and her interactions at welcome at parents meeting were poor and limited in delivery"). In November 2010, she ordered a week worth of buses to shuttle students between campuses without authority, costing School $1,620,²¹ and failed to consult Farrell or Marquette about her selection of students for one event and her change in the time for another. That same month, she rejected the agenda topic chosen for a team leader meeting and said the topic instead should be "lack of leadership and morale of faculty."

21 Curran was criticized for this in the January 21, 2011 memorandum, and in her written response to that document in May 2011 denied having ordered the shuttle and claimed Farrell had ordered it. In her declaration, she admits she ordered it but states Farrell authorized her to do so.

On December 6, 2010, Devincenzi, Sharafinski and the Heads and Deans of the high schools (Shurley, Simpson, Farrell and Marquette) met "to discuss how to proceed with Curran." At that meeting "[t]here were general observations that [Curran] would not collaborate, was an obstructionist, defied legitimate authority, and could not live with decisions made by others and 'railroads discussions.' " Each person was asked whether Curran had " 'fulfilled the role, living within the boundaries of the job description, so much that you would want her to continue in that role.' " Most answered that she had not, accompanied by such observations as that " '[t]here is so much time wasted, she cannot be trusted, she is divisive, [there are] major concerns about her ability to be a subordinate, she is unable to be part of the team and support leadership.' "

As a result of that meeting, "it was decided to place [Curran] on a performance improvement plan." Devincenzi followed up by contacting the Heads and Deans to "gather[] information about the specific incidents that were behind the criticisms expressed in the meeting so that they could be presented to Curran." According to Devincenzi, "Long lists of problems emerged, some of which cost the school significant money (such as the unauthorized ordering of a bus) and some of which potentially exposed the school to liability (sending a student home for misbehavior, without notifying her parents or Administration)."

Simpson reported that at specific faculty meetings and events, Curran engaged in a "tug of war," openly "contradict[ing]" what Simpson said, "refut[ing] statements, policies, [and] ideas" on such topics as "budget, school name, policies for school safety, work orders, [and] testing calendar." According to Simpson, Curran had "tak[en] charge of the Sacred Heart message," taking up time at every meeting "in personal pontification on 'the goals of Sacred Heart education' " in disregard of what Simpson was presenting, undermining Simpson's message and "telegraph[ing] division" and "lack of belief in my leadership." Simpson also reported instances in which Curran had failed to consult with her or collaborate about programs, student activities and budget issues. She reported Curran having yelled at her and acted in a way that led Simpson to feel "physically intimidated in the office." "Fundamentally," Simpson concluded, "I do not feel I can do the job I was hired to do in this environment where everything I take point on is misjudged, misinterpreted, openly attacked and invalidated."

Farrell reported "[o]verall, there has been little-to-no collaboration" between Curran and the Stuart Hall administration "regarding events and general student life coordination," and decisions made by current leadership "are not considered valid if there is any disagreement, or if there has been compromise between the schools. In other words, decisions that are not made by [Curran] do not appear to be valid, nor are they supported." He reported problems with Curran, including an incident in which she ordered a week's worth of buses claiming Farrell "had given her the greenlight" when he had not, another in which she unilaterally changed dates of a co-ed student event without checking with the Dean, and several other incidents.

Shurley reported Curran sent a student home from an evening event by bus for using foul language without calling the parent and told the student not to come to school the next day. Curran did not inform the administration, and when they called home to ask about the child's absence "it became a problem." Shurley also reported an instance in which Curran asked a family to fund a program without coordinating with other efforts to obtain funding for other programs. Shurley concluded, "[w]e just look like the left hand doesn't know what the right hand is doing."

Devincenzi, Sharafinski, Shurley and Farrell met with Curran on January 21, 2011, and gave her a memorandum, the subject of which was "Your Performance." The memorandum stated her "performance with respect to your interactions with the Heads and Deans has been unacceptable since the beginning of the school year and it must change if you are going to return to School next year," and that she had "disregarded" admonitions that "your new role would require careful coordination with your immediate supervisors, both the Heads and Deans of the high schools." It described some of the incidents about which Devincenzi had received specifics from the Heads and Deans and stated "[t]hese incidents clearly demonstrated that you were not accepting the authority of your supervisors in your new role." It further stated that during the "Team Meetings" they had discussed "the working relationships and roles" and "the need for you to respect the decision making of the Heads and Deans of the School," and that "[d]espite the hours spent in these meetings and what we thought were clear communications to you regarding your role in the School, there were two more incidents in November." It referred to a disagreement between Curran and Farrell as to whether Sacred Heart would pay for a canopy for the cross country team, in which she "insisted, for a lengthy period and then repeatedly afterward, that the School had the money for this expense." It stated her continuing complaints about Farrell's decision "display[ed] a lack of support" for the administration's decision making. It stated the agenda for one November meeting had been "Refining Job Descriptions and Living within them," but Curran had said "we did NOT need to discuss job descriptions instead we needed to talk about the 'lack of leadership and morale of faculty.' "

Ultimately, Curran was told her "conduct this year has been unacceptable and must change if you will be considered for a position next year." She needed to adjust her style to one that was "collaborative and supportive of your supervising administrators" in order to be "considered for a position next year." The memorandum informed Curran that she would not receive a letter in March regarding employment the following year because "we will need additional time to evaluate your performance in your new role before we offer you a contract for the 2011-12 school year." Her administrators would monitor her progress and meet with her to evaluate the changes she demonstrated. She was warned her "willingness to change and to work in a positive way with these individuals will determine whether you will be offered a future role at Schools."

During the meeting, Curran began to respond to the bullet points in the memorandum, in most cases insisting her behavior was appropriate. She was encouraged to respond in writing if she felt the memorandum contained errors. She did not until five months later, after she was told her contract would not be renewed.

Within days of the January meeting, Farrell reported an incident in which Curran "raise[d] her voice with [him] in a scolding manner" and again raised the issue of the funding for the canopy. In early February, Farrell told Devincenzi a Stuart Hall employee had complained that Curran was disrespectful to her. In mid- February, Farrell complained that Curran failed to notify him and Marquette which Stuart Hall students would be participating in an extracurricular event even after they asked her to do so; failed to inform them of the content of a musical involving electro-shock therapy, teenage addiction, and a parent with manic depressive disorder, with the result that parents complained and Farrell was "on [his] heels because [he] did not know of the mature content of the musical"; unilaterally changed the date for prom without consulting him and Marquette; and made " 'the last word' " at each assembly despite a prior discussion that "the Heads of School are the ones that are most appropriate for that sort of thing."

Also in mid-February, Shurley reported Curran had become upset, yelled at her in the presence of students and slammed the door when Shurley informed her she would not be receiving a "Letter of Intent," which is distributed to employees prior to the expiration of their current employment agreements to ask if they intend to return the following year. The January 21 memorandum had informed Curran she would not receive the letter because the administration needed "additional time to evaluate [her] performance" before offering her a contract for the following year. Nevertheless, in an email about this, Curran had accused Shurley, Farrell and Sharafinski of discrimination and mistreatment and threatened to report their "lack of professional behavior" to School's Board.

On February 18, 2011, Sharafinski, Shurley, Farrell and Devincenzi met with Curran to review the events that had transpired since the January 21, 2011 meeting. They told her their concerns would be documented in another written warning. The warning memo, dated March 2, 2011, summarized the events since January 21 and stated Curran's conduct was "disruptive," "insubordinate" and "unprofessional." It informed her that Sacred Heart did not anticipate changing the current leadership of the high schools, and therefore "if your employment is to continue you must be able to manage your relationships with these administrators in a manner that conveys respect and deference to their authority." It stated that "these next two months are critical" and "[y]our ability to make the necessary changes in behavior and relationships with administration will determine your continued employment."

On March 10, 2011, Devincenzi met with Simpson and Curran to review progress in their working relationship since a meeting they had in early February. They reviewed various incidents with Curran, and Simpson reported feeling "attacked" by Curran and not "trusted" or "supported" to make a decision.

On April 26, 2011, Shurley reported to Devincenzi that Curran had challenged her at a faculty meeting over the accidental disposal of books by the Facility Department, accusing her of deliberately disposing of the book collection and disrespecting Convent traditions.

Following this last incident, Sharafinski spoke with Shurley and Farrell regarding Curran's performance. Concluding Curran had not improved and had "continued to display an obstructionist attitude," they decided not to offer her a contract for the 2011-2012 school year. In a meeting with Devincenzi and Curran on May 3, 2011, they advised her of this decision. In an email she sent after that meeting, Curran asked Sharafinski and Devincenzi for consideration of another position on campus and stated she felt she had been "discriminated against" due to "unfair and biased opinions about [her] performance."

2. Curran's Evidence

In opposition to School's motion for summary adjudication, Curran presented her own declaration. She described her education and history at Convent, including four years of teaching physical education, sociology and theology and 28 years as Dean of Students. As Dean of Students at Convent, Curran developed many programs and served on the "Full Administration" team for School. She supervised faculty, prepared performance evaluations, developed programs for faculty development, developed the admissions program and participated in all major decisions about admissions. During her deanship, Convent was honored by the Department of Education as a National Blue Ribbon School. Curran received performance evaluations that were uniformly positive, as well as awards and accolades.

At the November 2009 meeting in which Sharafinski told Curran the two Dean positions would be unified, she told him she believed she was "extremely well qualified" and would like to be considered for the single Dean position. Sharafinski became abusive, telling her in an insulting tone that she had been at Sacred Heart too long, had " 'had her turn,' " took up " 'too much of the spotlight' " and " 'should go to another school and re-invent [her]self.' " Sharafinski gave her no explanation for the failure to appoint her to the position other than the derogatory comments noted above. He offered her the newly created position, which was a demotion, in a " 'take-it-or-leave-it' manner" and threatened to cut her salary if she did not accept it. Curran's several discussions of the issue with Sharafinski over the next few months were fruitless. Eventually Simpson, who was younger than Curran, was appointed Dean of Convent without a formal search.

At the first faculty meeting of the 2010 school year, in August, Sharafinski was questioned by several teachers, who were concerned by recent developments at School. Sharafinski yelled at one young teacher for asking a question he deemed inappropriate and out of line. Curran viewed Sharafinski as "uncomfortable around women" who were "poised, confident, self-assured and self-reliant." She believed he preferred women who were "reserved, coy and demonstrated deference to and dependence upon him."

A meeting with Sharafinski on September 1, 2010, which Curran had requested, began cordially, but Sharafinski "quickly turned . . . to the August 19 faculty orientation meeting. In an ever increasingly hostile tone, he accused [her] of creating a culture in the CSH faculty that he disliked because it was the only faculty that asked him questions about the proposed closing of [Stuart Hall] and the [Convent] community and its future." Sharafinski "became more agitated and angry," "yelled" at her that a faculty member "had been insubordinate at the . . . faculty meeting and . . . insisted that [she] agree with him." When she did not, it "enraged him even more. His face turned bright red," and "[h]e lunged at [her] from his chair." She was frightened and felt "in imminent physical danger." She went and stood in the doorway and told him she "would never be alone in a room with him again." After that meeting, Curran sent the email to Devincenzi complaining of improper treatment. She wrote it to tell Devincenzi she wanted to "file a complaint" about Sharafinski's hostile treatment and discrimination against her.

The September 16 meeting with Devincenzi and Miller about her complaint was emotional and lasted over an hour. Curran does not recall Devincenzi taking notes as Curran was speaking. She told them about her meeting with Sharafinski in 2009, when he became "very loud and verbally abusive" and "in a derogatory and insulting tone indicated that [she] could not apply for the 'new' Dean position"; complained that she and Grant had been replaced by Simpson, "who was then approximately 40 years of age and did not have the experience and qualifications that [she] had"; told them about her September 1 meeting with Sharafinski at which he accused her of creating a culture among faculty that he disliked, yelled at her, erupted, turned bright red and lunged at her, and how that frightened her and made her feel she was in physical danger; told them "Sharafinski was like Jekyll and Hyde in meetings with [her] not only on November 3, 2009 and September 1, 2010 but also on a few other one on one meetings [she] had with him." Miller told Curran that Sharafinski was treating her very poorly and that he couldn't behave like that. After the meeting, Curran never received a written or verbal response to her complaint about Sharafinski's conduct, nor was she notified of any investigation.

Less than a week after the meeting, the nameplates of Curran and Grant were removed from their office doors. Curran wrote to Devincenzi complaining about this and about the lack of collaboration on administrative decisions affecting the high schools. At the subsequent meeting of Sharafinski, Curran and Devincenzi, Sharafinski's demeanor was "restrained anger," and his manner was curt. He didn't answer most of her questions.

Curran admitted the team building meetings took place in October and November 2010, but denied there was discussion of any incidents in which she did not go through proper channels or failed to support administration. Curran had suggested these meetings because she and Grant felt "Simpson did not want any input from us and . . . there had been little or no discussion or collaboration on Simpson's part regarding decisions made which impacted the work" she and Grant were doing. At the first meeting, she "discussed an interaction with Rachel Simpson that occurred around August 12 when I approached her to set up a meeting to plan faculty orientation and other events" and "Simpson curtly said in reply: 'you have nothing to do with this . . . you had your time to lead . . . I have the reins now.' "

Curran's performance review for the prior (2009-2010) school year, given by Shurley in January 2011, was laudatory. Curran was therefore shocked when she was presented with the January 21 memorandum regarding her performance. None of the events it listed had been brought to her attention before that date. No one told her the memorandum was intended to be a Formal Administrative Review as described in the Employee Handbook.

Curran acknowledged incidents that occurred on the dates described in the January 21 memorandum, but said she had not heard complaints about them until the January 2011 meeting. She disagreed with the way her conduct was described.²² She did not dispute the incidents that occurred in the ensuing months, either. Curran responded to the memorandum by meeting on February 4, 2011, with Devincenzi, who suggested she put her responses in writing. Curran did so on May 3, 2011, the day she was told her employment would be terminated.

22 She denied yelling or wagging a finger at Simpson during the August 19 faculty meeting or at any time or contradicting Simpson at that meeting but admitted telling Simpson privately, during a break in the meeting, "You need to listen to the faculty; this is not working." She moved the check-in materials for Back-to-School night to a different location after they had been set up in a hall by others, but did so because she assumed they had been placed in the hall mistakenly. She did not speak to Simpson "loudly and aggressively" after the trustees' retreat in September but did discuss the location for a faculty in-service day with Simpson that day, a subject on which they apparently disagreed. She spoke during the faculty in-service program in September after Simpson had advised the schedule was tight, but she was "on the agenda" and spoke for about 30 minutes, not 45 as indicated in the January 21 memorandum. She attended all admission tours after Shurley decided they would be led by the Head of Convent and Admissions Staff and does not deny she "fielded a majority of the questions," but she had never been told not to attend. She raised the topic of a canopy for the cross-country team with Farrell repeatedly and believed his decision not to order one "was a poor decision." She ordered a shuttle service between high schools on a trial basis, but first denied doing so and later said Farrell authorized her to do it. She sent a student home from an evening event for using "filthy language" but called the girl's mother and left a message. She failed to tell Shirley or Simpson about it, but that was an oversight. She suggested that a parent donate to a particular program, but did so because the parent said no one got back to her and she needed to transfer the stock she was donating within 20 minutes.

In mid-February 2011, Curran learned from Shurley she would not be receiving a "Statement of Intent," a formal letter sent by School to its employees inquiring whether they intended to return for the next school year. Shurley was reluctant to discuss the issue frankly with Curran, and characterized the letter as unnecessary because Shurley already knew Curran's intent to return. Later, Shurley acknowledged the omission was Sharafinski's idea. Curran became emotional and left the meeting before receiving an explanation. In May 2011, Curran was told by Sharafinski that she would not be offered a contract for the next school year.

Curran did not contradict Sacred Heart's evidence that Shurley, Simpson, Farrell and Marquette reported to Devincenzi, on numerous occasions over the period from the fall of the 2010-2011 school year until May 2011 when Curran's employment was terminated, that their interactions with Curran were problematic, that in their view she did not respect their authority and was not collaborative, and that she was not fulfilling the role she had been assigned.

C. Application of the Legal Framework to the Evidence

Curran's complaint alleges the failure to renew her contract and events leading up to it were motivated by retaliation for her September 2010 email to Devincenzi, in which she complained about Sharafinski's treatment of her and various other concerns.

1. Curran's Prong 1 Showing

School contends it showed that Curran could not establish a prima facie case, specifically her burden of showing a "causal connection between [her protected activity] and the decision not to renew her contract." School focuses on the fact that the email was "sent four months before her first written warning and eight months before [it] decided not to offer her a contract" and that "[d]uring this time period administrators reported multiple serious performance concerns" about Curran. School further posits there was no evidence these complaints "were unjustified" or that the people who made them "possessed any improper motive." Finally, School contends, "[e]ven after all of these complaints were received, [School] made a concerted effort to help Curran improve her performance" by meeting with her repeatedly.

School misperceives the showing required for an employee to establish a prima facie case. As we have said, the plaintiff's initial burden is not onerous. At this stage, temporal proximity between the protected activity and the adverse employment action generally suffices. (Loggins, supra, 151 Cal.App.4th at p. 1112.) While the courts have varied on how close in time the two must be (see Chin, et al., supra, Cal. Practice Guide: Employment Litigation, ¶¶ 5:1621 to 5:1623, pp. 5(II)-27 to 5(II)-28), Curran claims the January 2011 performance memorandum and related meeting were part and parcel of the retaliation. This was four-and-a-half months after she complained about Sharafinski at the beginning of September 2010. This degree of temporal proximity, while not especially close, sufficed to meet Curran's prong one burden under McDonnell Douglas.

2. Sacred Heart's Showing on Prong 2

School "proceeded . . . to the second step of the McDonnell Douglas formula" by providing evidence of "its reasons, unrelated to [retaliation]," for declining to renew Curran's employment. (See Guz, supra, 24 Cal.4th at p. 357.) School carried its burden of demonstrating a legitimate, non-retaliatory reason for its decision. The accounts of Devincenzi and Sharafinski and the contemporaneous emails and other documents illustrate that School's leadership, including Sharafinski and the Heads and Deans of the high schools to whom Curran was responsible in her new position, viewed Curran's behavior as unsupportive and disruptive and concluded she was unwilling to accept the decision not to appoint her to the unified Dean position and to function in a subordinate role.

In October 2010, Devincenzi and Sharafinski met with Curran about her " 'continued concerns.' " Curran complained about Simpson's appointment and her sense of being excluded from certain decisions, and Sharafinski explained that certain decisions were no longer part of her role but were for Simpson to make. Curran does not dispute that her new role required her to work under the supervision of the Deans and Heads of both high schools. In October and November, Sharafinski, Devincenzi, and those Heads and Deans—Shurley, Simpson, Farrell and Marquette—met with Curran and Grant several times to engage in team building and discuss their new roles. Devincenzi also met with Curran and Sharafinski separately during that period to "check in and see how things were going."

At the December 6, 2010 meeting, near the end of the first semester after the restructuring, Sharafinski and the Heads and Deans of the high schools expressed the view that Curran was not performing well in her new position. They commented she was " 'divisive,' " "obstructionist, defied legitimate authority, and could not live with decisions made by others." Sharafinski "had major concerns about her ability to be a subordinate, to be able to be part of the team and support leadership." In response to Devincenzi's follow up request for specific information about the bases for the criticisms voiced at the meeting, Shurley, Simpson and Farrell provided accounts of multiple incidents in which Curran, in their view, failed to consult and collaborate with them, behaved in ways that disrespected their decisions, undermined their leadership, and sowed confusion among the Sacred Heart's parents, students and donors.

The subsequent decision not to renew Curran's contract was not sudden or impulsive. It followed another four months during which there were more incidents, documented in emails, and continuing friction between Curran and the Heads and Deans. It was based on their observations of her conduct through the Fall and Spring semesters of the 2010-2011 school year and numerous meetings, in two of which (January 21, 2011, and February 18, 2011) she was warned verbally and in writing that her conduct was not acceptable and had to change. Nor were shifting or inconsistent reasons given for the decision. Throughout the school year following the restructuring, Sacred Heart's leadership expressed the view that Curran was failing to adapt to her subordinate role and continuing to challenge her superiors' decisions. Even before Curran lodged any complaints, Sharafinski had expressed similar concerns. As he put it, she took up too much of the spotlight and prevented others from leading.

This evidence satisfied Sacred Heart's burden to show reasons, unrelated to retaliation, for its decision not to renew Curran's employment contract. The "presumption of retaliation thus 'drop[ped] out of the picture,' and the burden shif[ted] back to [Curran] to prove intentional retaliation." (Yanowitz, supra, 36 Cal.4th at p. 1042.)

I pause to note that the majority's description of the facts bears little resemblance to the above-described evidence. Because the majority's inference-laced recitation of the facts bears more heavily on the prong 3 showing under Guz and McDonnell Douglas, I will address its defects in the following section.

3. Curran's Showing on Prong 3

Curran argued below and argues now that School's reasons for terminating her employment were pretexts. She proffered evidence of Sharafinski's animus toward her, and theorized that he and School's other leaders acted on that animus in building a case to terminate her employment. To raise a triable issue of motive, however, the evidence must not only show animus, it must show animus that arose out of her complaint of discrimination. (McGrory v. Applied Signal Technology, Inc., supra, 212 Cal.App.4th at p. 1530, fn. 14 [inference is reasonable only if evidence implies unlawful motive is more or at least equally likely as defendant's proffered explanation]; cf. Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1038 [more likely].) Curran contends that before she complained about Sharafinski she was viewed as a valuable employee and that afterward Sacred Heart's treatment of her dramatically changed as he began a "deliberate campaign to gather 'evidence' to support her termination."

The major premise of Curran's pretext theory—that School changed its treatment of her after she complained about Sharafinski—is refuted even by her own evidence. That evidence shows Sharafinski disliked her and was hostile toward her long before she complained in September 2010. In November 2009, nearly a year before Curran complained, he rejected her for the unified Dean position, expressed unambiguous disdain for her and suggested she should leave. By her own account, after he told her she would no longer be Dean and she stated she was "extremely well qualified" and wanted to be considered for the unified Dean position, he told her "[i]n a derogatory insulting tone" she had "been here too long," "had [her] turn," "[took] up too much of the spotlight" and should "go to another school and re-invent [herself]." Shurley confirmed they were not considering her for Dean. Instead, Sharafinski offered her the Student Life Coordinator position "[i]n a 'take it or leave it' manner" and said if she did not take it her salary would be " 'cut in half.' " This, in her own words, was a "demotion."

Between November 2009 and March 2010, again months before she complained, Curran attempted several more times to convince Sharafinski to consider her for the new Dean position, to no avail. Each time, she says, he treated her with the same derogatory and insulting demeanor and tone and repeated the statements that she had "had [her] turn" and "needed to go to another school." In April 2010, he announced the new leadership team, including the selection of Simpson as the new Dean of Convent.

At the faculty meeting in August 2010, at which several faculty members asked Sharafinski questions about the changes at School, Sharafinski accused a Convent teacher of being "out of line" and asking an inappropriate question. Soon afterward, again before Curran complained, he and Curran met. "In an ever increasingly hostile tone, he accused [her] of creating a culture in the [Convent] faculty that he disliked because it was the only faculty that asked him questions about the proposed closing of [Stuart Hall] and the [Convent] community and its future." He became "more agitated and angry" and "yelled at" her that the teacher who asked the question had been insubordinate. When she disagreed, he became "enraged," "turned bright red" and "lunged at [her] from his chair." He "threaten[ed] [her] renewal of contract."

All of this—Sharafinski's rejection of Curran for the Dean position, suggestion she should go to another school, demoting her to a subordinate role, harsh and derogatory comments, threat not to renew her contract and accusations that she took up "too much of the spotlight" and encouraged insubordination—took place before she complained to Devincenzi. And that is not all.

In the email she sent accusing him of discrimination, she told Devincenzi she had "been subjected" to "conversations with Gordon Sharafinski that have given me great concern and now great distress in the manner in which I have been addressed, spoken to and treated," and that this had occurred over the preceding "months (actually 2 years)." She had "kept silent too long regarding this treatment."

Thus, Curran's own evidence makes plain that Sharafinski treated her in a hostile way for "months (actually 2 years)" before she ever complained about him. It is in the context of the entire record, including this evidence, that we must evaluate Curran's claim of retaliatory motive. Sharafinski's ongoing hostility toward and mistreatment of Curran, as she describes it, was harsh and inappropriate. But it is also powerful undisputed evidence of a non-retaliatory reason, going back years, as to why she was eventually discharged, which Curran was required to rebut with more than speculation and conjecture. Contrary to the majority's apparent assumptions, that Sharafinski's reasons for disliking Curran may have been unmerited or unjust or that his conduct was inappropriate or even abusive does not make his or School's reasons illegitimate. "A personal grudge can constitute a 'legitimate, nondiscriminatory reason' for an adverse employment decision." (Slatkin v. University of Redlands, supra, 88 Cal.App.4th at p. 1157.) " ' "[FEHA] addresses discrimination.". . . "[I]t is not a shield against harsh treatment at the workplace." ' " (Arteaga, supra, 163 Cal.App.4th at p. 344.) Given that Sharafinski's negative views, harsh words and adverse treatment of Curran long preceded her complaint, continued hostility and adverse treatment after she complained does not establish retaliation. (Slattery v. Swiss Reinsurance America Corp. (2d Cir. 2001) 248 F.3d 87, 95 [no inference of retaliation can be drawn where "gradual adverse job actions began well before the plaintiff had ever engaged in any protected activity"].)

We now turn to Curran's evidence of pretext and whether, considered in the context of the entire record, any or all of it is sufficient to raise an inference of retaliatory motive despite this two-year history of personal friction between her and Sharafinski.

a. "Manufactured" Performance Issues

Curran contends School "manufactur[ed] performance issues" in December 2010. She asserts that Sharafinski called the December 6, 2010 meeting to solicit negative feedback about [her]." The majority adopts this characterization wholesale (Maj. Opn., p. 19 ["Sharafinski solicited negative feedback about Curran regarding her performance"]). It relies on evidence not in the record²³ and inferences (which it fails to identify as such) that are not reasonably deducible from the record. The majority uses this further inference of fabricated complaints as the foundation for its holding there was a triable issue of causation, i.e., of whether School terminated Curran's employment to retaliate against her for complaining of discrimination. The majority goes so far as to claim "[t]here was not one complaint about Curran" up to this point. (Maj. Opn., p. 10.) From its recitation of "The Facts as They Must be Seen," one would be led to believe there was no hint of any problem between Curran and her superiors prior to December 6, 2010. This version of the "facts" is puzzling, to say the least.

23 Curran's appellate brief cites notes of the meeting proffered by Sacred Heart to which she objected on hearsay grounds, and to which her objection was sustained, in the trial court. The majority relies on the notes notwithstanding that her objection to them was sustained and they are therefore not part of the record. (Maj. Opn., p. 11.) Even if I considered the notes, they do not support the majority's characterization of the meeting.

Contrary to the majority's "not one complaint about Curran" assertion, it is undisputed, as I have already pointed out, that Sharafinski expressed concerns about Curran long before she ever complained about him and before the December 2010 meeting. He complained as early as November 2009 that she " '[took] up too much of the spotlight,' " that she should "let others lead," that Shurley could "not come into her own with [Curran's] strong leadership" and that Curran was "not open to ideas from [Stuart Hall]." Curran's response proved the point: Shurley, her direct superior at that time, lacked "strong leadership skills and social awareness graces," "[o]ur faculty meetings and Faculty orientations have not been good," she hoped Shurley's "leadership [would] improve" and she was trying "to give [Shurley] guidance."

Sharafinski's decision, which he communicated to Curran in 2009, that he would not consider her for the position of Dean and was demoting her to a subordinate position reflected his view that she lacked important qualifications. His actions in 2009 spoke volumes. There was also Sharafinski's complaint to Curran in August 2010 about being questioned by Convent faculty during a meeting and his accusation that Curran had created a culture in which his decisions were questioned and faculty were "insubordinate." And Curran made no bones about her disagreement with him on that point and her view that it was Sharafinski, not Convent faculty, who was the problem.

Maybe, as Curran hypothesizes, Sharafinski did not like strong or outspoken women, or people who challenged his decisions. Or maybe he viewed her as holier-than-thou and a know-it-all who believed she was the embodiment of Sacred Heart. Or maybe, as his declaration states, he simply thought her qualifications as a former physical education teacher, coach and Dean in charge of student activities were unimpressive and inadequate for the new single Dean position. The reasons for Sharafinski's negative views about Curran do not matter; the point is, he disliked her, complained about her and demoted her long before she complained about him. This seriously undermines her retaliatory motive theory.

There was also Curran's complaint to Devincenzi in September 2010 that Shurley was not qualified for her position and that Simpson was not qualified either, her expression of unhappiness about Simpson's appointment as Dean at Convent, her complaint about working for Simpson, who she believed was "keeping her down," and her demand for an explanation of the changes Sacred Heart was implementing. There was her complaint that there was " no collaboration on any administrative decisions" at Convent and that she was being excluded. There was another complaint by Curran in October 2010 "about Simpson's appointment as Interim Head and [Curran's] perception she was being excluded from decision making," and Sharafinski's response that it was no longer Curran's job to make certain decisions because they were Simpson's responsibility rather than hers. There were the numerous meetings in October and November 2010 "to clarify [Curran's] job description and her role" and the "job descriptions and the role of the new administration," and regular meetings by Devincenzi with Curran and Sharafinski "to check in and see how things were going." And there were Curran's continued complaints about Simpson during these meetings.

Finally, there was Simpson's complaint about Curran, well before the December 2010 meeting, that Curran had contradicted her and undermined her authority at a faculty meeting. Curran disputes Simpson's account of the meeting, but admits telling Simpson she " 'need[ed] to listen to the faculty' " and that her approach was " 'not working.' " Curran does not contradict School's evidence that Simpson made this complaint on September 17, 2010. Nor does she offer any evidence Simpson was aware of Curran's complaint about Sharafinski at that (or any other) time. Curran's evidence also confirms that she had little regard for Simpson and believed her to be unqualified for her position, that she and Simpson had serious difficulty communicating and that there was a great deal of friction between them. Nor does she make any bones about her belief that Shurley was not an effective administrator or that Farrell made poor decisions.

It is not reasonable to infer, on this record, that Simpson's and the other administrators' complaints about Curran were, as Curran postulates, drummed up by Sharafinski, much less made in retaliation for Curran's complaint about him. Both School's and Curran's evidence shows there were many differences of opinion and hard feelings between Curran and the administrators that were unrelated to, and at least some of which pre-dated, Curran's complaint against Sharafinski.

The majority, accepting Curran's characterizations, states Sharafinski "call[ed] a meeting for December 6 with Devincenzi, Shurley, Simpson, Anthony Farrell, and Ren Marquette." Actually, the record is silent on who called the meeting, and while it could have been Sharafinski, it is just as likely Devincenzi called it. More problematic, the purpose the majority attributes to Sharafinski—to solicit negative comments about Curran in retaliation for her complaint—is not a reasonable inference. The majority asserts the meeting "began by Sharafinski leadingly asking 'Has Celine fulfilled the role, living within the boundaries of the [job description], so much that you would want her to continue in that role?' " It goes on to attribute all comments made about Curran at the meeting, such as that she would not collaborate, "railroads discussions" and could not "live with decisions that have been made by others," to Sharafinski, characterizing them as his "answer to his own question." The majority further contends that "[a]t the end of the meeting, each participant was asked to compile a list of Curran's transgressions and send them to Devincenzi." (Maj. Opn., p. 11.)

These "facts" find no support in the record. The record evidence about the December 6 meeting, which consists of Devincenzi's and Sharafinski's declarations and is undisputed by Curran, reflects this question was not posed at the outset of the meeting, as the majority states, but after a discussion about how to proceed with Curran that included comments regarding her obstructionism, failure to collaborate, defiance of authority, inability to live with decisions made by others and railroading of discussions. The evidence belies the majority's contentions that these criticisms all came from Sharafinski. After the meeting, Devincenzi "began gathering information about the specific incidents that were behind the criticisms expressed in the meeting so that they could be presented to Curran." The information she sought and obtained was not from Sharafinski but from the Heads and Deans. The information involved incidents between Curran and the Heads and Deans—incidents Curran admits occurred even if she denies any fault. Finally, the majority fails to mention that at the meeting, the Heads and Deans responded to the question about whether Curran was performing within the limits of her job and said she was not, observing that she wasted time, could not be trusted, was divisive and did not support leadership.

In short, the story told by the majority consists of one conjectural inference after another that cannot be squared with the undisputed evidence in the record. The majority ignores all evidence that undercuts or contradicts its fabricated-complaints hypothesis, including most significantly the history of conflict between Curran and Sharafinski and the adverse employment action he took a year before she complained. In doing so, the majority disregards the directive of Guz that courts evaluate inferences in light of the summary judgment record "as a whole." (Guz, supra, 24 Cal.4th at p. 361; see also id. at p. 362.) The record as a whole does not support the majority's inference that Sharafinski's negative views of Curran were based on her having complained that he was discriminating against her. Even less does it support the inference that the Deans and Heads of the high schools, with the complicity and assistance of the Human Resources Director, provided false or exaggerated complaints at Sharafinski's behest.

Curran does not deny that the Deans and Heads stated at the December 2010 meeting that she was not fulfilling her new role and that she wasted time, could not be trusted, was divisive, had trouble being a subordinate and was unable to be part of the team and support leadership. She does not dispute that Farrell, Shurley and Simpson sent emails describing numerous instances of conduct by Curran they perceived as "undermining," unsupportive of leadership, not collaborative, "divisive" and "insubordinate." As we have indicated, she disputes some of the specifics in their descriptions of her conduct and provides her own versions of the events they described, which she saw very differently. But she does not deny there were continuing frictions between her and her superiors during the Spring semester or that they reported these ongoing issues to Devincenzi, including Simpson's report of feeling "judged, not trusted to lead," and "insulted" by Curran.

Curran's differing accounts of the events reported by the Deans and Heads of the high schools do not support the inference these incidents were "manufactured" or that they were pretextual. Which of the accounts are more accurate, the Heads' and Deans' or Curran's, is not the issue. Our job is not to decide whether Sacred Heart's reasons for terminating her were fair or correct or wise. (Guz, supra, 24 Cal.4th at p. 358.) The cause of action is not for "general unfairness" but for retaliation under FEHA. (Hersant, supra, 57 Cal.App.4th at p. 1005.)

Finally, even if there were a triable issue about the genuineness of Sacred Heart's stated reasons, which in my view there is not, the record still would not support a finding of retaliatory motive. " 'Logically, disbelief of an Employer's stated reason for a termination gives rise to a compelling inference that the Employer had a different, unstated motivation, but it does not, without more, reasonably give rise to an inference that the motive was a prohibited one.' " (Serri, supra, 226 Cal.App.4th at p. 863.) The evidence does not support the theory that Sharafinski's motive was retaliatory because, as we have explained, his hostility toward her arose long before she complained about him. On this record, there is no logical basis for inferring his motive was retaliation for her complaint rather than his preexisting belief that she was unwilling to accept and defer to him and to the new leaders he had chosen.²⁴

24 The majority compares this case to Yanowitz, in which the Supreme Court reversed summary judgment in a FEHA retaliation case because the evidence showed the plaintiff's supervisor had actively solicited negative information about her from her subordinates after she declined to engage in discriminatory conduct at another supervisor's request, strongly suggesting the employer was engaged in a search for a pretextual basis for discipline. (Maj. Opn., p. 16.) The majority says this "is 'exactly what happened in this case . ' " (Ibid.) It is not even close.
In Yanowitz there was direct evidence that a month after she declined to engage in discrimination, Yanowitz's supervisor contacted her subordinate asking whether she or other employees had problems with Yanowitz and requesting names. (Yanowitz, supra, 36 Cal.4th at p. 1039.) Two weeks later, he contacted the subordinate again, saying it was "urgent that she help him persuade individuals to come forward with their problems concerning Yanowitz." (Ibid.) Weeks later, he contacted her a third time, again asking her to notify him of negative incidents involving Yanowitz. (Ibid.) The supervisor used that information to criticize Yanowitz, threatened to end her career and screamed at her in front of her staff. (Ibid.) During the two-year period before then, Yanowitz had the same supervisor, and he had generally been positive about her and had never solicited feedback about her, threatened to terminate her or screamed at her. (See id. at pp. 1037-1038, 1062.) This evidence created a triable issue of pretext. (Id. at p. 1062.)
Here, the evidence does not show Sharafinski was at all positive about Curran in the years preceding her complaint. Far from it. According to her, he acted terribly toward her for two years before she complained, speaking harshly to her, threatening to fire her and demoting her. The meeting at which he supposedly solicited negative feedback" about her took place not one month, but three months, after she complained, and in the interim many meetings were held to address her concerns and discuss her role in the new administration. During this same period, there were numerous incidents of friction between Curran and her new superiors, and she repeatedly complained about her supervisors and expressed her views that they were unqualified for their positions and performing their duties poorly. Finally, here there is no direct evidence that Sharafinski solicited negative feedback about Curran, and the inference that he did so is not supported by the record.

b. Other Claimed Evidence of Retaliatory Motive

The majority also relies on a positive performance review Shurley gave Curran in January 2011 for the preceding (2009-2010) academic year, pointing out the review was given shortly before the January 2011 meeting at which Curran was given the first letter documenting problems with her performance and stating that she needed to improve. The review, given late because Shurley had been on maternity leave, addressed Curran's performance in her prior position as Dean of Students at Convent, before Sacred Heart changed its structure and, as she puts it, "demoted" her to a non-Dean position. The problems reported by her superiors during the 2010-2011 school year concerned her failure to collaborate with and support them the next year when she was no longer Dean and was subordinate to Farrell, Shurley and Simpson, whom Curran viewed and treated as incapable. The review's positive comments pertain to Curran's dedication to School and caring approach to students and faculty. If the reasons given for her termination concerned her devotion to the schools or relationships with students and faculty, the review might support an inference of pretext. But the reasons School gave for not renewing her contract concerned her relationships with her new superiors in the administration (including Sharafinski), her inability to play a subordinate role and her failure to collaborate with and support them. There was nothing inconsistent or suspect about this earlier performance review from which a jury could reasonably infer pretext. (See Pottenger v. Potlatch Corp. (9th Cir. 2003) 329 F.3d 740, 746; Guyton v. Novo Nordisk (C.D. Cal. 2015) 151 F.Supp.3d 1057, 1088; see also Hicks, supra, 160 Cal.App.4th at pp. 1010-1011.)

Curran, again echoed by the majority, contends School failed to undertake an "effective, thorough and objective investigation" of her complaints about Sharafinski, violating School's policy. This argument too finds no support in the record. Devincenzi, promptly upon receiving her September 1 complaint, met with Curran and attorney Miller for two hours and heard about the "14 topics" Curran raised, including those focused on Sharafinski's mistreatment of her. Devincenzi also met with Simpson, the subject of some of Curran's complaints. There is every reason to believe Devincenzi, and perhaps Miller, met with Sharafinski as well. Miller told Curran Sharafinski could not treat her the way he had been. Tellingly, the record reflects no further angry outbursts by Sharafinski thereafter.

Curran contends Devincenzi failed to take notes during their September and October meetings and that the notes she contends were prepared afterward are deficient. This argument, which the majority again adopts (Maj. Opn., pp. 10, 17), is non-cognizable because the notes are not part of the record. Curran objected they were "hearsay without exception" (italics added), and the trial court excluded the evidence. Curran also forfeited the argument by failing to raise it in the trial court. (Roberts v. Assurance Co. of America (2008) 163 Cal.App.4th 1398, 1408.) But even if the notes were in evidence and Curran had not forfeited the issue, they would create no triable issue of fact. The record contains no School policy specifying how detailed such notes must be or what they must contain.²⁵ In any event, evidence that a human resources professional took less than complete notes at meetings or prepared the notes after, rather than during, meetings is not indicative of retaliatory motive. (See Hicks, supra, 160 Cal.App.4th at p. 1010 [absence of documentation does not raise an inference of pretext where no evidence that employer concealed or destroyed evidence].)

25 The majority quotes slides from an "Interactive Training Course for Supervisors" presented by a law firm that "stress[ed] 'the importance of good documentation' when conducting an investigation." (Maj. Opn., pp. 9, 17.) This can hardly be described as a policy.

Curran claims she "never received any response, written or verbal, to her complaints of discrimination and hostile work environment." Her conclusory assertion ignores the undisputed evidence of the many meetings that followed, including her initial two-hour meeting with Devincenzi and Miller in September 2010, at which her complaints about Sharafinski and other concerns were discussed at length; her email thanking Devincenzi for that meeting "which provided me the arena to address my great concerns" and raised additional concerns; Devincenzi's prompt response suggesting they meet again and also meet with Sharafinski; and Devincenzi and Curran's meetings with Sharafinski on October 14, 2010, and regularly thereafter, at which Devincenzi "check[ed] in" to "see how things were going." It also ignores that, at Curran's suggestion, Devincenzi and Sharafinski scheduled a series of "team building meetings" with the leaders of the high schools. In these meetings, Curran's concerns about Sharafinski's behavior, her dissatisfaction with the process that led to Simpson's promotion, her belief that Simpson should not have been chosen over her to be Dean of Convent and her belief that Simpson was excluding her from decisions, were all discussed. And, again, there is no evidence that following Curran's complaint there was any further yelling, lunging or similarly abusive behavior by Sharafinski that would indicate Curran's concerns about his behavior were ignored. That Devincenzi participated in the meetings between Curran and Sharafinski indicates she was responsive to Curran's complaint that his conduct had frightened her.²⁶ This evidence shows Sacred Heart responded to Curran's wide-ranging concerns, including those about purported discriminatory conduct. In the face of this specific and undisputed evidence, the majority errs in accepting Curran's conclusory assertion that she received no response. (See 6 Witkin, Cal. Procedure (5th ed. 2008) Proceedings Without Trial, § 227, p. 668 [recital of conclusions or ultimate facts not sufficient in declarations supporting or opposing summary judgment].)

26 The majority suggests there was something wrong or suspect about Devincenzi arranging a meeting with Curran and Sharafinski. (Maj. Opn., p. 10.) I disagree. Sharafinski was School's Director and absent his removal, which School obviously did not conclude was merited, Curran as an employee would remain ultimately responsible to him. Facilitating and participating in meetings between the two of them after she complained and said she was afraid of him was entirely appropriate.

Curran also contends School "fail[ed] to follow its own policies regarding employee discipline" in addressing her performance issues, claiming the policy "requires that an employee be afforded a Formal Administrative Review consisting of a three-step process," including notice that she will be undergoing a process to improve her performance, a conference to assess deficiencies and develop objectives to address them, a timeline to monitor progress and a final review conference to inform the employee of the outcome. (Italics added.) Again the majority echoes this contention, and again the majority disregards the evidence. The handbook describes such a process, but frames it as one the administration "may" undertake. Further, in substance Sacred Heart followed the policy: the January 21 memorandum informed Curran her performance was unacceptable, identified the problems and required changes, and warned that if she did not improve her contract would not be renewed. It informed her the Heads and Deans would closely monitor her performance and School would not issue a contract to her in March 2011 because it needed more time to evaluate her performance. The administrators met with her more than once after the January 21 meeting and memorandum and provided her a second written warning before eventually deciding not to offer her a contract for the following school year. Curran did not show School violated its own policies. Nor, even if she had, would this support an inference of retaliation. "A mere failure to follow formal internal policies does not support a discrimination [or retaliation] claim." (Guz, supra, 24 Cal.4th at p. 377 (Chin, J., concurring).) It " 'does not even hint that the real motive was' " retaliation. (Id. at p. 378.)

c. Conclusion

In my view, Curran's evidence, in the context of the entire summary judgment record, fails to show " ' "such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in [School's] proffered legitimate reasons for its action that a reasonable factfinder could rationally find them 'unworthy of credence,' [citation], and hence infer 'that [it] did not act for the [the asserted] non-[retaliatory] reasons.' " ' " (Serri, supra, 226 Cal.App.4th at p. 863.) Nor does her evidence provide a basis other than speculation for concluding the non-renewal of her contract was the product of retaliatory motive on Sharafinski's part, rather than his view, shared by four other members of the administration, that she was unable or unwilling to perform in a subordinate role, collaborating with and supporting him and the new administration. I would therefore affirm the trial court's grant of summary adjudication.

SACRED HEART'S APPEAL FROM VACATION PAY VERDICT

I also disagree with the majority's affirmance of the vacation pay verdict. I will not go into detail about the evidence, except to say there was none to support the verdict that Curran was entitled to 40 days' vacation pay. There was no dispute that Sacred Heart's policy in effect during the last seven years of Curran's employment capped the number of days an employee of Curran's seniority could accrue vacation at 35, such that once an employee accrued that amount she could not accrue any more vacation time until she used some of that already accrued. Sacred Heart's evidence indicated Curran had taken 15 days of vacation time in her final year of employment and it paid her for 20. In my view, Curran presented no substantial evidence of any prior policy allowing her to accrue a greater number of days than 35, nor of having been paid for less than the maximum possible number of days she could accrue. Her theory that she had accrued additional vacation days under a prior policy that capped accrual at 14 months, and proffered an interpretation of that policy to mean she could accrue 14 months' worth of vacation days, i.e., well over a year of paid time off, was unsupported by evidence and an absurd interpretation of the prior policy's language. I would reverse the judgment on this vacation-pay tail and the half million dollar attorney-fee dog that goes with it. With respect, I dissent.

/s/_________

STEWART, J.