Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. CGC-03-423075
Reardon, J.
In appellant Jason Miles’s wrongful termination action, the trial court granted summary judgment to respondents Banc of America Securities and others on all causes of action. Miles appeals the resulting judgment for the bank, contending that triable issues of material fact warranted trial on his allegations of wrongful termination, defamation, breach of contract and breach of the implied covenant of good faith and fair dealing. We affirm the judgment.
Except in part V., post, for convenience, this opinion refers to respondents Banc of America Securities LLC, Bank of America Corporation, Managing Director Jeff Berry and Vice-President Tom Kelly collectively as the “bank.”
I. FACTS
In February 1998, appellant Jason Miles—an African-American man—began working as a financial analyst for a subsidiary of respondent Bank of America Corporation. A San Francisco native, Miles had graduated from St. Ignatius High School and earned a bachelor of arts degree in business administration from Morehouse College, an historically African-American college. In July 1999, he began working for respondent Banc of America Securities LLC—a subsidiary of Bank of America Corporation—as a corporate and investment banking analyst. In 2000, Miles became a registered representative of the National Association of Securities Dealers (NASD) after passing a series of licensing examinations.
In July 2000, Miles was promoted to corporate and investment banking associate, reporting to the head of the equity private placements group. In addition to a $25,000 signing bonus and his annual salary, he was also guaranteed a bonus of at least $30,000 that year. He was employed on an at-will basis. Miles was one of a small class of analysts who were promoted to the associate level within this specialized investment banking unit that advised corporations about raising equity capital in private placement transactions. None of the members of this class of promoted analysts held a master of business administration (MBA) degree. At all relevant times, Miles was the only African-American in the equity private placements group. Between April 2000 and October 2001, he received three performance reviews rating him at least 3.5 out of a possible score of 5.0. During this time period, Miles also received regular bonuses.
In May 2001, management of the equity private placement group changed. Miles began reporting to the group’s new managing director, respondent Jeff Berry. Respondent Tom Kelly—a bank vice-president—began working with the group in June 2001. Berry observed some deficiencies in Miles’s work ethic and teamwork skills soon after they began working together. He coached Miles about his job performance and advised him about what was expected of a successful associate. During 2001, Berry received complaints that Miles had fallen asleep during a client meeting. Other bankers asked not to have Miles assigned to their deals, citing Miles’s inadequate preparation and his tendency to doze off during meetings.
In October 2001, Miles found Berry’s comments about his performance review to be “surprisingly negative” given his earlier positive reviews and promotions. In the midst of their discussion of this review, Berry told Miles “I’ve had people quit on me before, so you won’t be the first.” Miles—inferring that Berry thought he might be planning to leave the bank—said that he was happy in his work and hoped to be promoted again. Berry told Miles that he had been given a great opportunity at the bank through a “Morehouse scholarship,” suggesting that Berry believed that Miles had received special treatment as the result of a diversity program.
Berry said other things that made Miles think that his supervisor might be racially biased. Once, Berry volunteered to Miles that he had just seen the film “Ali,” saying that when he was growing up, “we didn’t even look at him the way . . . he’s being presented now.” Miles interpreted Berry’s comment as a criticism of someone who had made strides in the civil rights movement. Another time, the two discussed growing up in San Francisco. Miles recalled that Berry said that he grew up having “black guys chas[e] me to my bus every day.” Miles was taken aback by this comment.
In his declaration, Berry denied ever making this statement or ever being chased to the bus when he was growing up in San Francisco.
At the time of the October 2001 review, Berry also told Miles that he would need an MBA to progress further in his investment banking career. In December 2001, Miles decided to seek admission to the MBA program at the Stanford University (Stanford) Graduate School of Business. Berry wrote a letter to Stanford recommending Miles for admission to the program.
In January 2002, Berry again advised Miles to improve his job performance to succeed in the group. At the same time, he approved a salary increase for Miles that took effect in February 2002. By February 2002, Berry shared his concerns about Miles’s performance with Kristina Becker, the group’s personnel manager. Berry agreed to work with Miles on the issues that concerned him and Becker agreed to follow up with Berry about these matters.
In his declaration, Miles denied that he received any written or oral warning that his job might be in jeopardy for lack of performance. However, he did acknowledge that Berry gave him some negative feedback as early as his October 2001 performance review.
In May 2002, Miles learned that he had not been accepted to Stanford’s highly competitive MBA program. When Miles told Berry this news, Berry said that he “expected that,” as he knew “what kind of people Stanford takes.” Miles took this to mean that Berry did not think he was a good candidate for this program. He told Berry that he believed that he was a strong candidate for Stanford’s MBA program and indicated his intention to reapply. About this time, Berry complained that Miles needed to come into work earlier. As time went on, Berry noticed no significant improvement in Miles’s timeliness.
In June 2002, Kelly told Miles that he did not feel that Miles’s job performance was at the level expected of an associate. He conveyed this message to Berry. Kelly was particularly critical of Miles’s missed deadlines, poor communication, low level of commitment and lack of judgment. Berry spoke again with Becker, telling her that if Miles’s performance did not improve, he would be terminated. In July 2002, the bank sent Miles to New York for three weeks to work with its investment bankers. Before Miles went to New York, Berry told him that his work performance had to improve or his job would be in jeopardy.
Miles denied that he received any warning that his job was in jeopardy because of performance issues.
Kelly criticized Miles for preparing materials to send to potential investors that would have been “detrimental to investor appetite for the deal.” Miles regarded Kelly’s plan to exclude some of this material as misleading to potential investors.
Miles denied that he was told that the New York trip was for evaluation purposes.
At the end of July 2002, Kelly told Berry that Miles was still not performing at the level that the job required. Kelly cited several new examples of Miles’s poor job performance, including references to more than one instance of falling asleep during business meetings. He also complained that Miles appeared to be spending work time on personal matters. In mid-August 2002, Berry consulted a third time with Becker, advising her that he had decided to terminate Miles’s employment.
Miles admitted that he was drowsy during a meeting because he had worked late the night before preparing for the meeting and that he had dozed off—which he defined as closing his eyes, yawning, nodding his head. He denied that he fell asleep. He testified that he dozed off at more than one meeting with different clients.
On August 29, 2002, Berry told Miles that he was being terminated for poor job performance. Miles seemed surprised by this action. He asked for a written statement of the reason for termination, but was not given one. He expressed a belief that his termination was not based on his lack of performance, but for political or personal reasons. Miles indicated that he expected to consult an attorney about it. Later, he spoke with Becker about the termination, but never said that he thought that it was racially motivated. Bill Baker, a Caucasian, was hired soon after Miles was terminated.
In his declaration, Berry stated that his decision to hire Baker was unrelated to Miles’s termination—that he would have terminated Miles even if Baker had not presented himself for employment.
On September 6, 2002, the bank filed a standard NASD termination notice (U-5) stating that a reduction in workforce was the reason for Miles’s termination. This notice was filed with the federal Securities and Exchange Commission. Berry was not involved in the filing of this notice—no one at the bank seemed to know who filled it out or the source of that person’s information. Miles received a copy of this notice from the bank about September 10. This was the first written explanation that he received of the reason for his termination. He admitted in his deposition that he did not contact the bank to question its contradiction of its stated reason why he had been terminated, because he knew that there had not been a reduction in workforce. In October 2002, the bank issued its formal separation notice, stating that Miles had been involuntarily terminated for unsatisfactory performance.
We note that the notice itself lists two names—a contact person and a signatory. There is no evidence in the record on appeal about either of them.
The record on appeal does not reveal whether this was an internal document or whether Miles received a copy of it.
After termination, Miles decided to reapply to Stanford’s MBA program. In his application, he stated that he left the bank after August 2002 to pursue entrepreneurial ventures. Stanford reserved its right to withdraw an offer of admission if it found that Miles misrepresented himself in his application. It also indicated its intent to verify that the information Miles provided in the application was accurate and complete. In September 2002, he asked a managing director at the bank—Mark Epstein—to write a letter of recommendation to Stanford on his behalf. In October 2002, Epstein did so.
Also in October 2002, Miles filed a complaint with the federal Equal Employment Opportunity Commission (EEOC) and the state Department of Fair Employment and Housing—which enforces the Fair Employment and Housing Act (FEHA)—charging the bank with racial discrimination in violation of title VII of the Civil Rights Act of 1964 (title VII) and the FEHA. In December 2002, the bank advised the EEOC that Miles was terminated for poor performance, not for racial reasons. The letter stated that Kelly rejected materials that Miles proposed to send to potential investors after concluding that these materials would discourage investment.
Miles asserted that these statements were false.
This appears to be the basis of Miles’s retaliatory termination cause of action.
The bank paid Miles his salary through October 31, 2002. He was also offered an additional lump sum of six weeks’ salary in exchange for signing a separation agreement, but he did not sign it. At the end of the year, the bank did not award Miles a bonus. Berry later stated that he did not award a bonus to Miles because the bonus was discretionary, because his job performance had been poor and because he was not someone that the bank sought to have in its continued employment.
In March 2003, the bank offered the EEOC an additional written response to Miles’s charge of racial discrimination. It asserted that Miles failed to meet reasonable work deadlines, missed a telephone conference with a client, was regularly late to work and had general communication problems. The bank urged the EEOC to find that Miles’s allegations were meritless and to close the case. On May 6, 2003, Miles received a dismissal letter from the EEOC, which concluded that it was unable to establish any statutory violation.
On August 6, 2003, Miles also received an FEHA notice of case closure.
Early in 2003, Stanford had offered Miles admission to its MBA program as a result of his second request for admission. Sometime in the spring of 2003, Caroline Jamry—then, an administrative assistant with the bank’s personnel department in New York—had received an inquiry from the Stanford MBA admissions office about Miles’s employment with the bank. She consulted bank records, which told her that Miles had been involuntarily terminated because of unsatisfactory performance. She conveyed this information to the admissions office. She did not have access to the U-5 notice. On May 30, 2003, the Stanford MBA admissions office asked Miles to explain why his application stated that he left the bank to pursue entrepreneurial ventures, but the bank stated that he had been involuntarily terminated.
On August 4, 2003, Miles filed a civil action against Bank of America LLC and Bank of America Corporation. He alleged causes of action for breach of contract, breach of the implied covenant of good faith and fair dealing, wrongful termination based on racial discrimination in violation of federal and state law, and wrongful termination in violation of public policy. Miles sought compensatory and punitive damages, reinstatement in his position at the bank with back pay, and attorney fees. (See 42 U.S.C. § 2000e-2(a)(1); Gov. Code, § 12940, subd. (a).)
In his original complaint, Miles named Bank of America Corporation and Bank of America LLC as defendants, alleging that Banc of America Securities LLC was a subsidiary of Bank of America Corporation. In his first amended complaint, Miles correctly named both Banc of America Securities LLC and Bank of America Corporation as defendants.
On August 15, 2003, Stanford withdrew its offer of admission to Miles to enter its MBA program. Having evidence that Miles misrepresented himself in his application for admission, the admissions office concluded that his conduct indicated a serious lack of judgment and/or integrity.
In December 2003, Miles filed his first amended complaint, adding a cause of action for defamation and naming Jeff Berry and Tom Kelly as additional defendants. Berry and Kelly were only sued for defamation, while Banc of America Securities LLC and Bank of America Corporation were sued on all six causes of action. In March 2004, the bank filed its answer to the first amended complaint on behalf of all four defendants. In October 2004, Miles reapplied to Stanford a third time, without success.
In February 2005, the bank moved for summary judgment. By April, Miles opposed the motion. Both sides filed objections to each other’s evidence. On April 22, the bank challenged the trial judge originally assigned to the case, who accepted the peremptory challenge. (See Code Civ. Proc., § 170.6.) A week later, Miles attempted to challenge the judge who had been assigned to replace the first judge, but his motion was rejected as untimely. (See ibid.)
All subsequent dates refer to the 2005 calendar year unless otherwise indicated.
Miles suggests that the bank’s peremptory challenge was motivated by an April 21 tentative ruling denying its motion for summary judgment. The bank does not dispute the repeated references made by Miles’s counsel to a tentative ruling, but we note that the record on appeal contains no objective evidence of such a ruling.
All subsequent statutory references are to the Code of Civil Procedure unless otherwise indicated.
On April 29, the trial court heard argument on the motion for summary judgment. In June, it granted the bank’s motion for summary judgment, ordering that judgment be entered against Miles. A judgment consistent with this order was filed on June 24 and on July 15, notice of entry of judgment was given.
II. STANDARD OF REVIEW
The general standard of review of an order granting a motion for summary judgment is well settled. A trial court must grant a motion for summary judgment if all the moving papers show that there is no triable issue of material fact and that the moving party is entitled to summary judgment as a matter of law. The bank meets its burden on its motion for summary judgment if it establishes a complete defense to each of Miles’s causes of action or demonstrates the absence of an essential element of each of those causes of action. Once the bank meets that burden of proof, the burden shifts to Miles to show that a triable issue of material fact exists with respect to that defense or that element of the cause of action. If Miles does not meet this burden, then the bank is entitled to summary judgment. (See, e.g., Van Dyke v. Dunker & Aced (1996) 46 Cal.App.4th 446, 450-451; Stratton v. First Nat. Life Ins. Co. (1989) 210 Cal.App.3d 1071, 1083; see § 437c, subd. (o).)
On appeal after a motion for summary judgment has been granted, we review the record de novo, considering all the evidence set forth in the moving and opposition papers—except that to which objections have been made and sustained—and any uncontradicted inferences that may reasonably be deduced from that evidence. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 [racial discrimination case] (Guz); see § 437c, subd. (c); Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 612.) We independently determine the effect of this evidence. (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 807 (Horn).) On each of Miles’s causes of action, we determine whether the bank—as the party seeking summary judgment—has conclusively negated a necessary element of the cause of action or has demonstrated that under no hypothesis is there a triable issue of material fact, such that it is entitled to judgment as a matter of law. (See Guz, supra, 24 Cal.4th at p. 334; see also § 437c, subd. (o).)
We review the trial court’s legal rulings de novo on appeal, as well. (See, e.g., Crocker National Bank v. City and County of San Francisco (1989) 49 Cal.3d 881, 888; Harustak v. Wilkins (2000) 84 Cal.App.4th 208, 212.)
We make this determination on the basis of evidence offered for and against the motion for summary judgment. Neither Miles nor the bank may rely on the allegations or denials in the first amended complaint or the answer, but must set forth specific facts showing that a triable issue of material fact exists. (See § 437c, subd. (p)(1); Horn, supra, 72 Cal.App.4th at p. 805; Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590.) A triable issue of material fact is not raised by speculation or mere possibility. (Horn, supra, 72 Cal.App.4th at p. 805; Lyons v. Security Pacific Nat. Bank (1995) 40 Cal.App.4th 1001, 1014.) Supporting and opposing affidavits or declarations must be based on personal knowledge, must set forth admissible evidence and must make an affirmative showing that the affiant is competent to testify on the matters stated in them. (See § 437c, subd. (d); Stratton v. First Nat. Life Ins. Co., supra, 210 Cal.App.3d at p. 1083.)
III. RACIAL DISCRIMINATION
A. Contentions on Appeal
First, Miles contends that the trial court erred in granting summary judgment on his causes of action for wrongful termination based on racial discrimination. He had alleged in two causes of action—the third grounded in the state FEHA and the fourth based on federal title VII—that the decision to terminate him was based on race and that the bank’s asserted reason for terminating him—his poor performance—was a pretext. (See 42 U.S.C. § 2000e-2; Gov. Code, § 12940, subd. (a).) The trial court found that Miles did not meet his burden of proof overcoming the bank’s evidence of legitimate nondiscriminatory reasons for termination, such that he could not prove that these reasons were a pretext for racial discrimination. On appeal, Miles argues that the evidence underlying these legal conclusions is in conflict, such that he met his burden of raising triable issues of material fact sufficient to overcome a motion for summary judgment and to establish his right to bring these issues to a jury.
Miles also alleged in his third cause of action that his termination was the result of racial harassment. The trial court rejected this FEHA claim, as well, noting that Miles did not contest this aspect of the bank’s motion for summary judgment. He did not challenge the trial court’s determination on racial harassment in his opening brief, but mentions it for the first time in his reply brief. It is unfair for an appellant to raise issues for the first time on appeal in a reply brief, as it deprives the respondent of any opportunity to respond. (See Smith v. Board of Medical Quality Assurance (1988) 202 Cal.App.3d 316, 329 fn. 5; see also 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 616, pp. 647-648.) We will not consider this issue, deeming it to have been waived. Even if this issue was properly pursued in the trial court and properly preserved for our review on appeal, we would find that the alleged comments that Miles cited as evidence racial harassment do not meet the required threshold for sufficiently severe, extreme or pervasive conduct that would constitute racial harassment for purposes of stating a racial discrimination cause of action. (See Etter v. Veriflo Corp. (1998) 67 Cal.App.4th 457, 463-465 [applying federal and state law].)
B. Legal Analysis
1. Overview
Miles alleged causes of actions for racial discrimination in violation of both federal and state law. (See 42 U.S.C. § 2000e-2(a)(1); Gov. Code, §§ 12900-12996.) Although the specific wording of the two statutory schemes differs, the antidiscriminatory objective and the overriding public policy purpose of the state FEHA mirror those of title VII. (See 42 U.S.C. § 2000e-2(a)(1); Gov. Code, § 12940, subd. (a).) The similarities between these state and federal employment discrimination laws allow California courts to look to pertinent federal precedent when applying state law. (Guz, supra, 24 Cal.4th at p. 354; Mixon v. Fair Employment & Housing Com. (1987) 192 Cal.App.3d 1306, 1316; see 42 U.S.C. § 2000e-2(a)(1); Gov. Code, § 12940, subd. (a).)
California has adopted the three-stage burden-shifting approach established by the United States Supreme Court for trying discrimination claims based on disparate treatment claims. (Guz, supra, 24 Cal.4th at p. 354; Horn, supra, 72 Cal.App.4th at pp. 805-807; see Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248, 252-260 (Burdine); McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802-805 (McDonnell).) This approach reflects the principle that direct evidence of intentional discrimination is rare, requiring most such claims to be proven by circumstantial evidence. By applying successive steps of increasingly narrow focus, the three-part test allows discrimination to be inferred from facts that create a reasonable likelihood of bias and that are not satisfactorily explained. (Guz, supra, 24 Cal.4th at p. 354.) Under thisanalysis, the burden of producing evidence shifts between the parties. However, the plaintiff always has the ultimate burden of persuading the trier of fact by a preponderance of the evidence that he or she was the victim of intentional racial discrimination. (See St. Mary’s Honor Center v. Hicks (1993)509 U.S. 502, 507, 514 (St. Mary’s); Burdine, supra, 450 U.S. at pp. 254, fn. 7, 256; Guz, supra, 24 Cal.4th at p. 356.)
Miles alleges a disparate treatment type of discrimination case, in which the employer treats some employees less favorably than others because of a protected characteristic such as race. Proof of discriminatory motive is critical to such a case, although it can sometimes be inferred from the mere fact of differences in treatment. (Hazen Paper Co. v. Biggins (1993) 507 U.S. 604, 609.) Ultimately, the question of liability turns on whether the protected characteristic actually motivated the bank’s termination of Miles. A disparate treatment claim cannot succeed unless Miles’s race actually played a role in the bank’s decisionmaking process and had a determinative influence on its outcome. (See id. at p. 610.) With these principles in mind, we apply the specific facts of this case to the three-part legal analysis set out for us.
2. Prima Facie Case of Racial Discrimination
The plaintiff’s initial burden is to prove a prima facie case of racial discrimination by a preponderance of evidence. (See Burdine, supra, 450 U.S. at pp. 252-253; McDonnell, supra, 411 U.S. at p. 802; Guz, supra, 24 Cal.4th at p. 354; Horn, supra, 72 Cal.App.4th at p. 806.) Miles must establish actions taken by the bank for which one could infer—if the actions were unexplained—that it is more likely than not that they were based on a prohibited discriminatory criterion. (See Guz, supra, 24 Cal.4th at p. 355.) He may establish a prima facie case of racial discrimination by showing evidence that (1) he belongs to a protected class; (2) his job performance was satisfactory; (3) he was discharged; and (4) his job was filled by an individual of comparable qualifications who was not in the protected class. (See Burdine, supra, 450 U.S. at pp. 253-254 fn. 6, 258; see also McDonnell, supra, 411 U.S. at p. 802; Guz, supra, 24 Cal.4th at p. 355.)
The burden of establishing a prima facie case is not difficult to meet, as it is only intended to eliminate the most patently meritless claims at the outset of the case. (Burdine, supra, 450 U.S. at pp. 253-254; Guz, supra, 24 Cal.4th at pp. 354-355.) The adequacy of the plaintiff’s prima facie case is initially a question of law for the trial court to resolve. (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 201-202.) On appeal, we consider anew whether Miles has established his prima facie case. (See Guz, supra, 24 Cal.4th at p. 334; Horn, supra, 72 Cal.App.4th at p. 807.) The bank does not contend otherwise and we agree that Miles has met this minimal requirement. (See Guz, supra, 24 Cal.4th at p. 355.)
3. Nondiscriminatory Reason for Termination
Miles’s establishment of a prima facie case gives rise to a mandatory rebuttable presumption of discrimination. (See Guz, supra, 24 Cal.4th at p. 355; see also St. Mary’s, supra, 509 U.S. at p. 506; Burdine, supra, 450 U.S. at p. 254 fn. 7.) That presumption requires us to conclude that unlawful discrimination occurred unless the bank offers an explanation that rebuts the prima facie case. (See St. Mary’s, supra, 509 U.S. at pp. 506-507.) Thus, at this stage, the burden of producing evidence shifts to the bank to offer admissible evidence that its termination of Miles’s employment was made for a legitimate, nondiscriminatory reason. (See Guz, supra, 24 Cal.4th at pp. 355-356; Horn, supra, 72 Cal.App.4th at p. 806; see also § 437c, subd. (c) [requiring competent, admissible evidence on summary judgment].)
The bank must clearly set out its explanation. (Burdine, supra, 450 U.S. at p. 255.) At this stage, it need not persuade the trier of fact that it was actually motivated by the proffered reasons. It is sufficient if the bank’s evidence raises a genuine issue of fact about whether it discriminated against Miles. The explanation must be legally sufficient to justify judgment for the bank, if believed by the trier of fact. (See id. at pp. 254-255; Guz, supra, 24 Cal.4th at pp. 355-356; Horn, supra, 72 Cal.App.4th at p. 806; see also St. Mary’s, supra, 509 U.S. at pp. 506-507, 509-510; McDonnell, supra, 411 U.S. at pp. 802-803.) Legitimate reasons for employer action are those that are facially unrelated to prohibited bias which, if true, would preclude a finding of discrimination. (Guz, supra, 24 Cal.4th at p. 358; see St. Mary’s, supra, 509 U.S. at p. 514.)
The adequacy of the bank’s evidence rebutting Miles’s prima facie case is a question of law for the trial court to resolve in the first instance. (See Caldwell v. Paramount Unified School Dist., supra, 41 Cal.App.4th at pp. 201-203.) On appeal, we consider the evidence before us and determine that legal question anew. (See Guz, supra, 24 Cal.4th at p. 334; Horn, supra, 72 Cal.App.4th at p. 807.) The bank’s separation notice and Berry’s in-person advisement on August 29, 2002, constitute admissible evidence supporting the claim that Miles was terminated for poor performance. (See, e.g., Guz, supra, 24 Cal.4th at pp. 355-356; Horn, supra, 72 Cal.App.4th at p. 806.) Another possible reason for the bank’s termination decision is found in its U-5 form—evidence that could be held to be an admission against the bank. The form states that Miles’s termination was the result of a reduction in workforce. As neither of these reasons is discriminatory, we conclude that the bank offered sufficient legitimate, nondiscriminatory reasons for Miles’s termination to meet its burden of producing evidence to rebut the prima facie case of racial discrimination. (See Guz, supra, 24 Cal.4th at pp. 355-356; Horn, supra, 72 Cal.App.4th at p. 806.)
4. Pretext
a. Required Showing
Once the bank has met its burden of producing evidence of a legitimate nondiscriminatory reason for its action, the presumption of discrimination that resulted from Miles’s prima facie case is rebutted and disappears. (See Guz, supra, 24 Cal.4th at p. 356; see also St. Mary’s, supra, 509 U.S. at pp. 507, 510-511; Burdine, supra, 450 U.S. at p. 255.) At this third stage, Miles must meet the burden of proving by a preponderance of evidence that the bank’s stated reasons were not its true reasons, but a pretext for discrimination. (See St. Mary’s, supra, 509 U.S. at pp. 508, 515; Burdine, supra, 450 U.S. at p. 256; Guz, supra, 24 Cal.4th at p. 356; Horn, supra, 72 Cal.App.4th at p. 806.)
This appeal arose after an order granting summary judgment—a fact that also plays a part in our analysis of this final aspect of the three-part test for racial discrimination. On a motion for summary judgment, the moving party must establish entitlement to judgment as a matter of law. (Guz, supra, 24 Cal.4th at p. 356; see § 437c, subd. (c).) The bank made a facially dispositive showing of nondiscriminatory reasons for termination, entitling it to summary judgment if Miles does not rebut its evidence by demonstrating a triable issue of material fact about the bank’s reason for termination. (See Guz, supra, 24 Cal.4th at pp. 357, 360; see also Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 951 [FEHA case]; Caldwell v. Paramount Unified School Dist., supra, 41 Cal.App.4th at p. 203 [same].)
At a minimum, Miles’s rebuttal evidence must raise a permissible inference that the bank actually acted for a discriminatory purpose. (See Guz, supra, 24 Cal.4th at p. 362.) His racial discrimination causes of action may withstand summary judgment if he offers substantial evidence that the bank’s stated legitimate reason for termination was untrue or pretextual, or if he offers evidence that the employer acted with a discriminatory animus, or both. (Horn, supra, 72 Cal.App.4th at pp. 806-807; Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1004-1005 (Hersant).) As in all such cases, the ultimate issue is whether Miles’s evidence would allow a reasonable trier of fact to rationally conclude that the bank engaged in intentional discrimination. (Horn, supra, 72 Cal.App.4th at p. 807; Hersant, supra, 57 Cal.App.4th at p. 1005.)
We emphasize that, to avoid summary judgment, Miles must offer substantial and specific evidence that the bank’s stated reasons were pretextual. He cannot meet this burden of proof by merely reciting the facts in his prima facie case and denying the credibility of the bank’s evidence. An issue of fact can only be created by an actual conflict of evidence, not by speculation or conjecture. (Horn, supra, 72 Cal.App.4th at pp. 807, 817; see St. Mary’s, supra, 509 U.S. at p. 509.) We cannot draw an inference of intentional discrimination solely from evidence that the bank offered nondiscriminatory but inconsistent reasons for termination. The applicable federal and state statutes prohibit discrimination, not inconsistency. (See Guz, supra, 24 Cal.4th at pp. 360-361 [employee must demonstrate discrimination even if employer’s stated reason was untrue]; see also St. Mary’s, supra, 509 U.S. at pp. 507, 510-511, 514-518.) Even if the bank’s articulated reason for terminating Miles seemed false, he would still be obligated to establish that the reason that the bank terminated his employment was discriminatory, not merely untrue. (Green v. Rancho Santa Margarita Mortgage Co. (1994) 28 Cal.App.4th 686, 694-695 [trial]; see St. Mary’s, supra, 509 U.S. at pp. 507, 511, 514-519.) If Miles does not show a triable issue of material fact about whether his termination was actually made for discriminatory reasons, then the bank is entitled to summary judgment. (See Guz, supra, 24 Cal.4th at p. 360.)
b. Miles’s Actual Showing
On appeal, Miles asserts that he met his burden of demonstrating that the bank’s stated reason for his termination was pretextual, sufficient to withstand a motion for summary judgment. The bank counters with its own argument that Miles did not establish that its proffered reason for termination lacked credibility. It asserts that the record contains no evidence suggesting that its decision was based on Miles’s race. After a careful examination of the record on appeal, we find that Miles has failed to offer admissible responsive evidence to rebut the bank’s evidence of a legitimate reason for his termination with substantial, specific evidence that its reason was pretextual. None of the facts that Miles cites, whether considered separately or in combination, constitute evidence rising to the level needed to overcome the bank’s motion for summary judgment.
First, Miles cites the fact that the U-5 form stated that he was terminated as part of a reduction in workforce as evidence that his termination was racially based. We disagree. As Miles himself admitted, he was told at the time of termination—before the U-5 form was filled out—that his termination was based on poor performance. Undisputed evidence showed that the form was incorrect and Miles did not establish that anyone related to his employment termination decision had any awareness of or influence over the completion of this form. (See, e.g., Horn, supra, 72 Cal.App.4th at pp. 808-810 [intent of decision maker is critical].) The incorrect ground stated in the U-5 form appears to have been the result of a clerical error—an insufficient basis for establishing the intentional misleading that a reasonable trier of fact might deem to be evidence of pretext. (See Kulumani v. Blue Cross Blue Shield Ass’n (7th Cir. 2000) 224 F.3d 681, 684.)
Miles also notes that he was the only African-American in his group. This fact, while relevant to the showing he was required to make at the prima facie case stage, is not sufficient to rebut the bank’s evidence that he was terminated for poor performance. (See Horn, supra, 72 Cal.App.4th at p. 807; Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1118 [no evidence to connect fact of gender difference between employee and supervisor to desire to discriminate; summary judgment correct in face of speculation]; Gonzales v. MetPath, Inc. (1989) 214 Cal.App.3d 422, 425-426 [no prima facie case of racial discrimination based on weak circumstantial evidence].)
Miles also cites the fact that as he was being terminated, the bank was in the process of luring and then hiring Baker—a Caucasian. He connects these two events, impliedly inviting a trier of fact to speculate that he was specifically terminated to make room for Baker. However, speculation is not evidence. (Horn, supra, 72 Cal.App.4th at pp. 807-808; Guthrey v. State of California, supra, 63 Cal.App.4th at p. 1118; see Hersant, supra, 57 Cal.App.4th at p. 1009.) While these independent facts may assist an employee in demonstrating a prima facie case of racial discrimination at an earlier stage of such a case, they do not constitute evidence sufficient to demonstrate a triable issue of material fact on pretext and thus overcome the bank’s motion for summary judgment. (See Horn, supra, 72 Cal.App.4th at p. 817; Hersant, supra, 57 Cal.App.4th at pp. 1003-1005.) In this matter, the bank produced uncontroverted, admissible evidence that Baker’s hiring was not connected to Miles’s termination. The suspicion that Miles attempts to raise cannot overcome the bank’s admissible evidence that its termination decision was unrelated to Baker’s hiring.
Next, Miles cites his good performance evaluations in support of his general impression that his work was excellent. Some of this evidence is irrelevant to the issue of his termination because the earliest referenced evaluation relates to Miles’s performance as an analyst—the position he held before his associate position from which he was later terminated. As an analyst, Miles also reported to a supervisor who was not involved in the challenged termination decision. (See Radue v. Kimberly-Clark Corp. (7th Cir. 2000) 219 F.3d 612, 618 [no prima facie case; different supervisors and different decisions are not comparable].) Thus, this early evidence is not relevant to the issue of why Berry, acting on behalf of the bank, decided to terminate Miles.
Some of Miles’s evidence that his work performance was not lacking is contradicted by his own admissions. For example, Miles admits that he dozed off during at least two meetings and that on at least one occasion, Kelly and Berry discussed their dissatisfaction with Miles’s work performance. Miles also admitted in his deposition that he was told that his work did not meet the bank’s expectations. These admissions are most damaging to his claim. When deposition testimony offers an admission against the interest of the opponent of a motion for summary judgment and that evidence is relevant to the determination of the motion, courts give that admission strong deference. (See D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21-22 [under prior law, before summary judgment statute specifically authorized use of deposition testimony and admissions in support of motion]; see also 6 Witkin, Cal. Procedure, supra, Proceedings Without Trial, § 207, pp. 618-620.) Overall, Miles fails to appreciate that it is the employer’s sense of the employee’s abilities—not that of the employee—that is determinative of whether there is a triable issue of material fact. (See Horn, supra, 72 Cal.App.4th at pp. 807, 816; Hersant, supra, 57 Cal.App.4th at pp. 1005, 1009; see also Bradley v. Harcourt, Brace and Co. (9th Cir. 1996) 104 F.3d 267, 270.)
Miles also cites comments suggesting a general bias against African-Americans, claiming that these comments constituted evidence of racial discrimination. The race-based comments that he cites in support of this claim were ambivalent and unrelated to the bank’s termination decision. They do not create an inference that Berry—who made the decision to terminate Miles—did so with a discriminatory intent. (See Nesbit v. Pepsico, Inc. (9th Cir. 1993) 994 F.2d 703, 705; Horn, supra, 72 Cal.App.4th at pp. 808-809.) As such, they do not rise to the level of evidence sufficient to establish a triable issue of material fact on pretext. (See, e.g., Nesbit v. Pepsico, Inc., supra, 994 F.2d at p. 705; DeHorney v. Bank of America Nat. Trust and Sav. (9th Cir. 1989) 879 F.2d 459, 467; Dong Van Nguyen v. Dobbs Intern. Services, Inc. (W.D.Mo. 2000) 94 F.Supp.2d 1043, 1049.)
Finally, Miles argues that he was terminated in retaliation for his criticism of the new management’s practice of promoting investment in a manner that he believed was misleading to potential investors. (See pt. IV., post.) This is not necessarily evidence of a termination decision based on race. (See Hazen Paper Co. v. Biggins, supra, 507 U.S. at pp. 609-610.) Miles has provided no evidence of any link between the alleged retaliation and his race, other than to allow a trier of fact to speculate that the connection existed. Again, we find that such speculation cannot constitute sufficient evidence to overcome a motion for summary judgment on a racial discrimination cause of action. (See Horn, supra, 72 Cal.App.4th at pp. 807-808, 817; Guthrey v. State of California, supra, 63 Cal.App.4th at p. 1118; see also Hersant, supra, 57 Cal.App.4th at pp. 1003-1005, 1009.)
In essence, Miles argues that the bank’s evidence of his poor performance was not credible in light of his written performance evaluations and regular bonuses. He reasons that he should be entitled to put his evidence before a jury to allow it to decide whether the bank acted based on a prohibited racial basis. The evidence that he asserts in support of his racial discrimination claim amounts to no more than his prima facie case, an attack on the credibility of the bank’s statement that he was terminated for poor performance, and speculation that the bank must have had a discriminatory motive for terminating his employment given his competence.
As a matter of law, such evidence is insufficient to withstand summary judgment. (See Guz, supra, 24 Cal.4th at p. 362 [circumstantial evidence sufficient to show prima facie case may be too weak to raise inference of discrimination]; Horn, supra, 72 Cal.App.4th at pp. 807, 816-817; see also St. Mary’s, supra, 509 U.S. at pp. 509-510.) When an employee’s evidence raises only a weak suspicion that discrimination was a likely basis for the employer’s action and the employer offers a plausible, largely uncontradicted explanation for that action for reasons unrelated to a prohibited basis for the employer action, the employee has not raised a triable issue of material fact and the employer is entitled to a summary judgment as a matter of law. (See, e.g., Guz, supra, 24 Cal.4th at pp. 369-370.) The weight of federal and state authority entitles an employer to summary judgment if, considering the employer’s innocent explanation for its action, the evidence as a whole is insufficient to permit a rational trier of fact to infer that the employer’s actual motive was discriminatory. (Id. at p. 361.)
This is the situation presented by the case before us. Miles offers no direct evidence and little if any circumstantial evidence to support a rational inference that the bank’s proffered reason was false. As he has not materially contradicted the bank’s claim, Miles has not demonstrated a triable issue of material fact on this issue. (See Guz, supra, 24 Cal.4th at pp. 363-366; see also § 437c, subd. (b)(1) [requiring supporting evidence].) As such, we find that the trial court properly granted the bank’s motion for summary judgment on his racial discrimination causes of action.
IV. WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY
Miles next contends that the trial court erred in granting summary judgment on his fifth cause of action against the bank for wrongful termination in violation of public policy. (See U.S. Const., 1st Amend.; Cal. Const., art. I, §§ 3, 8, 16; 42 U.S.C. § 2000 et seq.; Gov. Code, §§ 12920, 12940.) As with the racial discrimination claims, the trial court found that the bank offered evidence of a legitimate, nondiscriminatory reason for Miles’s termination that he could not overcome by a showing that these reasons were a pretext for discrimination. It also found that Miles did not make a prima facie case of termination in retaliation for opposing conduct he reasonably believed to violate the law. Third, it found that Miles failed to timely identify the statutory basis of his claim of wrongful termination in violation of public policy. The trial court also found that Miles could not show any causal connection between any alleged protected activity and his termination, because the process leading to his termination began before he began engaging in that protected activity.
Miles alleged wrongful termination in violation of public policy on two potential bases—as a means of racial discrimination and in retaliation for opposing the bank’s alleged failure to make full disclosure of material information to its potential securities clients. The bank was entitled to summary judgment on the wrongful termination in violation of public policy cause of action if there was no triable issue of material fact as a matter of law. The burden-shifting approach of this aspect of the motion for summary judgment is similar to that used on the racial discrimination cause of action. Miles had the initial burden of showing a prima facie case of wrongful termination. If he established this prima facie case, the bank was required to show either that one or more elements of the cause of action could not be established or that it had a complete defense to that cause of action. If the bank did so, then the ultimate burden of proof shifted back to Miles to show that a triable issue of material fact existed sufficient to overcome summary judgment. (See Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 67.) On appeal, we make an independent review of the trial court’s summary judgment ruling. (Ibid.)
On the racial discrimination basis of wrongful termination in violation of public policy, the FEHA makes it an unlawful employment practice for an employer to retaliate against an employee for opposing any discriminatory practice forbidden by FEHA or for making a complaint of discrimination. (See Gov. Code, § 12940, subd. (f).) An employee establishes a prima facie case of retaliation under FEHA by showing that he or she engaged in an activity protected by FEHA; he or she was then subjected to an adverse employment action; and a causal link existed between the protected activity and the adverse action. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 614.) Miles’s inability to demonstrate that his termination was based on race necessarily compels the further conclusion that the bank was entitled to summary judgment on his wrongful termination cause of action, to the extent that it was grounded in his FEHA claim. (See Stevenson v. Superior Court (1997) 16 Cal.4th 880, 904 [common law cause of action for wrongful termination in violation of public policy subject to underlying statutory limits on nature and scope of statutory prohibition]; see also pt. III., ante.)
Miles’s alternative basis of wrongful termination in violation of public policy was retaliatory termination. An employee who is terminated in retaliation for challenging an employer’s illegal conduct may bring a cause of action for wrongful termination against that employer. (Collier v. Superior Court (1991) 228 Cal.App.3d 1117, 1119-1125.) To establish a prima facie case of retaliation, Miles must show that he engaged in protected activity, that he was thereafter subjected to an adverse employment action by the bank, and that there was a causal link between the two. (See Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042; Morgan v. Regents of University of California, supra, 88 Cal.App.4th at p. 69.) Even if we were to assume arguendo that Miles established that he engaged in protected activity, he cannot show any causal link between that activity and his termination. The bank demonstrated that Berry began exploring the possibility of terminating Miles’s employment by February 2002. The protected activity arose as a result of Miles’s work on an account, and undisputed evidence established that he did not begin working on that account until after April 23, 2002—two months after the termination process was well underway. (See Clark County School Dist. v. Breeden (2001) 532 U.S. 268, 272.) As Miles cannot establish that his termination was the result of his engagement in protected activity, there is no causal link to show a prima facie case for retaliatory wrongful termination. Thus, the bank was entitled to summary judgment on this aspect of Miles’s wrongful termination cause of action. (See Yanowitz v. L’Oreal USA, Inc., supra, 36 Cal.4th at p. 1042; Morgan v. Regents of University of California, supra, 88 Cal.App.4th at p. 69.)
V. DEFAMATION
Miles also contends that the trial court erred in granting summary judgment on his defamation cause of action. In his sixth cause of action, he alleged that Berry defamed him with malice when he told representatives of the Stanford University Graduate School of Business that Miles had been terminated because of his poor work ethic, poor judgment and dishonest work performance. Miles also alleged that his offer of admission to the MBA program was rescinded as a result of Berry’s statement to Stanford representatives. In his declaration, he asserted that Kelly and Berry contacted Stanford and made false statements about his work performance. In his deposition, Miles explained that the defamatory statement was that he had been terminated for poor performance.
The trial court found that Miles could not prove defamation by the corporate defendants because the allegedly defamatory statement—that he was terminated for poor performance—was true; because they did not intentionally publish a statement that he was terminated due to a reduction in workforce; and because their communication with Stanford was privileged and Miles did not establish that the statement made to Stanford was made with malice. With regard to the individual defendants, the trial court found that Miles did not identify any defamatory statement made by Berry or Kelly by the time he filed his first amended complaint. As to all defendants, the trial court found that the communications were nonactionable opinion.
Summary judgment is a favored remedy in defamation cases. (See Couch v. San Juan Unified School Dist. (1995) 33 Cal.App.4th 1491, 1498.) We conclude that the trial court properly granted summary judgment to all respondents on Miles’s cause of action for defamation. First, Miles did not demonstrate that the bank made any false statement about him. The evidence on this matter shows that, while acting on behalf of the bank, Jamry advised Stanford that Miles was terminated for poor performance—the reason that Miles was given by Berry when he was terminated and the reason stated on the bank’s formal separation notice. This aspect of Miles’s defamation claim turns on his ability to demonstrate that he was not actually terminated for poor performance but because of racial discrimination. We have already concluded that the record on appeal does not show any evidence from which a reasonable trier of fact could conclude that the bank’s stated reason for his termination was pretextual. (See pt. III., ante.) Truth is an absolute defense to any defamation action. (Campanelli v. Regents of University of California (1996) 44 Cal.App.4th 572, 581; see Civ. Code, §§ 45, 46 [defining libel and slander as false publications].) As we have already upheld the trial court’s grant of summary judgment on Miles’s racial discrimination cause of action because he failed to show that his termination was not made because of his poor performance, we also conclude that this lack of evidence warrants summary judgment in the bank’s favor on his defamation cause of action against the corporate respondents. (See § 437c, subd. (c).)
In his brief, Miles also criticizes Jamry for repeating the allegedly defamatory statement that he was terminated for poor performance. He asserts that she did so despite her access to the U-5 form stating the true reason for his termination—because of a reduction in workforce. However, the only evidence before the trial court on this factual issue was Jamry’s declaration that she did not have access to the U-5 form when she responded to the inquiry from Stanford’s admissions office. In the face of this undisputed evidence, Miles has not established a triable issue of material fact about whether Jamry had access to the reason stated on the U-5 form. (See § 437c, subds. (d), (p)(1); Horn, supra, 72 Cal.App.4th at p. 805; Union Bank v. Superior Court, supra, 31 Cal.App.4th at p. 590; Stratton v. First Nat. Life Ins. Co., supra, 210 Cal.App.3d at p. 1083.)
Miles also criticizes the bank for providing incorrect employment dates to Stanford. Although his last day of work at the bank was August 29, 2002, Miles continued to be on the bank payroll through October 31, 2002. It appears that the ending date of his term of employment as stated on Miles’s application and as provided by the bank to the admissions office differed, based on different interpretations of which day was Miles’s actual ending date of bank employment. Regardless of any discrepancy about that actual date, it is clear that Stanford questioned Miles’s integrity because of discrepancies about the reason that he left the bank, not different reports of the timing of his departure. As no reasonable jury could find that Stanford withdrew its offer of admission from Miles based on the timing of his departure from bank employment, any such discrepancy has no causal link to any damage Miles allegedly suffered from any defamatory statement.
In his reply brief, Miles contends for the first time on appeal that the bank’s false statements about him were made in retaliation for his EEOC complaint. Miles may not raise issues for the first time on appeal in a reply brief. To do so is unfair, as it deprives the bank of an opportunity to respond to his assertions. (See, e.g., Smith v. Board of Medical Quality Assurance, supra, 202 Cal.App.3d at p. 329 fn. 5; see also 9 Witkin, Cal. Procedure, supra, Appeal, § 616, pp. 647-648.)
In his defamation cause of action against individual respondents Kelly and Berry, Miles’s first amended complaint—coupled with his declaration and his deposition testimony—alleges that these two men did more than merely pass along inaccurate information to the bank’s human resources department that he had been terminated for poor performance. He asserts that Kelly and Berry spoke directly with someone at Stanford in order to speak against his admission to the MBA program. However, Miles’s evidence does not establish that either of them made any statement to anyone at Stanford about him. The evidence in the record on appeal demonstrates that Miles could not identify any statement made by either man and includes uncontradicted evidence that Berry did not speak with Stanford about Miles’s 2002 application to its MBA program.
The bank notes that Miles did not depose Berry or Kelly.
Defamation is the intentional publication of a false and unprivileged statement that has a natural tendency to injure or that causes special damage. (See Ringler Associates Inc. v. Maryland Casualty Co. (2000) 80 Cal.App.4th 1165, 1179; see also Civ. Code, §§ 45, 46.) Without evidence of a statement that Kelly or Berry made to the Stanford admissions office, Miles cannot establish any specific cause of action for defamation against either of them beyond that asserted more generally against the corporate respondents. As his evidence is entirely speculative, Miles has not raised a triable issue of material fact sufficient to survive a motion for summary judgment. (See Horn, supra, 72 Cal.App.4th at p. 805; Lyons v. Security Pacific Nat. Bank, supra, 40 Cal.App.4th at p. 1014.)
With regard to all four respondents, the alleged defamatory statement—that Miles was terminated for poor performance—was an opinion that, as a matter of law, cannot form the basis of a defamation action. A defamatory statement must be a statement of fact, not an opinion. (Jensen v. Hewlett-Packard Co. (1993) 14 Cal.App.4th 958, 970-971 [nonsuit]; see Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1154.) The trial court is charged with making an initial assessment of whether a statement is defamatory. The determination of whether an allegedly defamatory statement is a statement of fact or an expression of opinion is a question of law for the trial court to determine. (See Jensen v. Hewlett-Packard Co., supra, 14 Cal.App.4th at pp. 965, 969, 971.) Case law has clearly established that a manager’s evaluation of an employee’s work performance is a statement of opinion, not a statement of fact. (Id. at p. 970; see Gould v. Maryland Sound Industries, Inc., supra, 31 Cal.App.4th at pp. 1153-1154.) For this reason, courts do not favor defamation actions based on statements made during an employee’s performance review. (See, e.g., Jensen v. Hewlett-Packard Co., supra, 14 Cal.App.4th at pp. 965, 969.) Thus, we find that the trial court properly granted summary judgment to all respondents on Miles’s sixth cause of action for defamation.
In support of his argument that an employer’s statement about an employee’s poor work performance is not opinion and can be defamatory, Miles cites a case in which an appellate court held that a plaintiff’s allegation of defamation could survive a demurrer. (See Kelly v. General Telephone Co. (1982) 136 Cal.App.3d 278, 283-285.) However, the issue before us arises at a significantly later procedural stage, after summary judgment. Thus, Kelly is distinguishable from the case before us on appeal, in which the trial court considered not simply the allegations of the first amended complaint but also the evidence that Miles and the bank offered in support of or in opposition to summary judgment.
VI. CONTRACT CLAIMS
A. Breach of Contract
Finally, Miles contends that the trial court erred in granting summary judgment on his breach of contract and breach of implied covenant causes of action. In the first cause of action of his first amended complaint, Miles alleged that the bank breached its contract by failing to give him a guaranteed pro rata bonus for the eight months that he worked in 2002. At various times, he estimated the value of this bonus at between $30,000 and $100,000. On this cause of action, the trial court found that Miles was unable to establish a contractual obligation to pay a bonus; that he did not show more than an agreement to pay a bonus that was discretionary, such that any contract for a bonus would have been unenforceable; and that he could not demonstrate any breach of contract, given his poor job performance.
The evidence does not prove the existence of a contract guaranteeing that the bank would pay Miles a bonus in 2002. In his declaration in opposition to the motion for summary judgment, Miles stated that he was guaranteed an annual bonus of $30,000 as a term of employment. However, the evidence that he cited in support of this claim—a letter from the bank—only guaranteed him a bonus in 2000, not in 2002. This unsupported aspect of Miles’s declaration does not constitute evidence in support of his underlying claim that the bank had contracted to pay him a guaranteed bonus in 2002. (See § 437c, subd. (d).)
The bank was entitled to rely on Miles’s failure to produce opposition evidence during discovery to support its motion for summary judgment on a cause of action. Once Miles failed to adduce evidence to support the factual allegations of his complaint, the burden shifted to him and the motion for summary judgment could be granted if Miles failed to set forth specific facts that show a triable issue of material fact. (See Union Bank v. Superior Court, supra, 31 Cal.App.4th at p. 590.) As Miles failed to meet his burden of showing that a contract existed, the bank was entitled to summary judgment on the breach of contract cause of action as a matter of law. (See, e.g., Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107, cert. den. sub nom. Holy Spirit Association for the Unification of World Christianity v. Molko (1989) 490 U.S. 1084.)
Even if we found that Miles’s declaration constituted evidence that tended to support his breach of contract claim, that declaration was undermined by his own admission in his deposition testimony. In his deposition, Miles admitted that he was not guaranteed a bonus in 2002, but that a bonus was discretionary, depending on his manager’s appraisal of his work. Such an admission is strong evidence against Miles. (See D’Amico v. Board of Medical Examiners, supra, 11 Cal.3d at pp. 21-22.) His declaration is insufficient to create a triable issue of material fact in the face of his admission in his deposition that no bonus was guaranteed for 2002. (See id. at p. 21.)
Miles also argued that he was entitled to a pro rata share of the 2002 bonus awarded, suggesting in his opposition to the motion for summary judgment that even if the award was discretionary, he deserved his part of it. That claim is grounded on his underlying assertion that he was wrongfully terminated despite his good job performance in 2002. As we have already found that Miles was not wrongfully terminated but was terminated for poor job performance, this breach of contract claim necessarily fails. (See pt. III., ante.) Thus, the trial court properly granted the bank summary judgment on Miles’s first cause of action for breach of contract.
B. Breach of Implied Covenant of Good Faith and Fair Dealing
Finally, Miles argues that the bank breached its implied covenant of good faith and fair dealing by using his bonus money to pay a signing bonus to Baker, the man he alleges was hired in his place. Thus, he reasons that the trial court should have denied the bank’s motion for summary judgment as it related to his second cause of action for breach of the covenant of good faith and fair dealing. Miles did not allege this factual basis for his cause of action for breach of the implied covenant of good faith and fair dealing. The underlying complaint serves to identify and frame the issues in the case. (B.L.M. v. Sabo & Deitsch (1997) 55 Cal.App.4th 823, 834.) A plaintiff may not successfully defend against a summary judgment motion on a theory that was not pled. (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541.) In order to assert a new theory, the complaint must be amended before the hearing on the motion for summary judgment. (See Sweat v. Hollister (1995) 37 Cal.App.4th 603, 607, disapproved on other grounds in Santisas v. Goodin (1998) 17 Cal.4th 599, 609 fn. 5; 580 Folsom Associates v. Prometheus Development Co. (1990) 223 Cal.App.3d 1, 18.) Miles did not do so and thus, cannot prevail on his breach of implied covenant of good faith and fair dealing on this theory.
Even if this were not so, two other grounds offer independent bases supporting our conclusion that there was no breach of implied covenant in this matter. First, a covenant of good faith and fair dealing does not stand alone but depends on the existence of the underlying contract in which it is implied. (See Guz, supra, 24 Cal.4th at pp. 348-352.) We have already concluded that no contract for a bonus existed, which also dooms Miles’s claim for breach of a covenant implied in the nonexistent contract. (See pt. VI.A., ante.) Second, the undisputed evidence demonstrated that Baker received no signing bonus. Miles’s assertion that Baker was given such a bonus is speculation, not sufficient to constitute a triable issue of material fact. (See Horn, supra, 72 Cal.App.4th at p. 805; Lyons v. Security Pacific Nat. Bank, supra, 40 Cal.App.4th at p. 1014.) Thus, the trial court properly granted the bank summary judgment on Miles’s second cause of action for breach of the implied covenant of good faith and fair dealing.
VII. CONCLUSION
As we find that the bank was entitled to summary judgment on each of the six causes of action that Miles alleged in his first amended complaint, we conclude that the trial court properly granted summary judgment to the bank and entered judgment against Miles.
In light of this conclusion, Miles’s request that we disqualify the trial judge from participating in further proceedings is moot.
The judgment is affirmed.
We concur: Ruvolo, P.J., Rivera, J.