Opinion
A146884
08-02-2017
DOMINIC SHING, Plaintiff and Appellant, v. REGENTS OF THE UNIVERSITY OF CALIFORNIA, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. RG13708631)
Dominic Shing is a former employee at the University of California's Lawrence Berkeley National Laboratory ("LBNL"). Shing sued the Regents of the University of California ("the University") for unlawful termination for taking medical leave under the California Family Rights Act ("the CFRA"). (Gov. Code, § 12945.2.) The trial court granted summary judgment for the University, concluding the University presented a legitimate, business reason for the termination, and Shing failed to demonstrate discriminatory or retaliatory animus, or pretext.
Unless otherwise noted, all further statutory references are to the Government Code.
Shing appeals. He claims the court erred in granting summary judgment, contending the evidence raised triable issues regarding animus and pretext. We affirm.
FACTUAL AND PROCEDURAL HISTORY
Shing was employed in the International Researchers and Scholars Office ("IRSO") at the LBNL as a Senior IRSO Advisor. The IRSO provides visa processing and immigration services to foreign nationals working at the LBNL, such as faculty, researchers, and scientists. Shing began working as an IRSO Advisor in 2002. In 2009, Shing became a Senior IRSO Advisor. Shing processed H1B and J1 visa applications.
The University faults Shing for citing his opposition to the University's separate statement of undisputed material facts, instead of citing directly to the evidence. In his reply brief, Shing contends he cited exclusively to the opposition to the separate statement only when the facts were not disputed. This statement is not accurate; Shing sometimes cited his opposition to the separate statement even when he claimed to dispute the University's statement of facts. Shing was required to "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears." (Cal. Rules of Court, rule 8.204(a)(1)(C).) Even where facts were not disputed, Shing was not relieved of this obligation. We will not, as the University requests, disregard the facts where Shing cites only to his opposition to the separate statement, but we strongly discourage the practice because it makes our review of the supporting evidence in the record much more difficult.
The IRSO consisted of three advisors. Shing and Larry Guo were Senior IRSO Advisors, and Ben Ortega was the Principal IRSO Advisor. Beginning in January 2011, Shing was supervised by Human Resources ("HR") Shared Services Manager Wade Crosson. Crosson reported to the Chief HR and Diversity Officer, Vera Potapenko, who reported, in turn, to the LBNL's chief operating officer, Jim Krupnick. The LBNL's Medical Leave, Sick Leave, and Vacation Leave Policies
At the LBNL, the Health Services Department determined whether employees were eligible for medical leave. The medical leave policy stated "[i]f sick leave is exhausted, an employee may elect to use accrued vacation time before taking leave without pay." The sick leave policy contained a similar provision, stating "[w]hen sick-leave credit is exhausted, vacation-leave or leave-without-pay rules apply . . . ."
The vacation leave policy provided "[e]mployees will coordinate their vacation leave in advance with their division. Employees must provide their supervisors with reasonable notice of at least one week in advance of the need to take time off from work for any reason when the need for leave is foreseeable. This notice must include the expected length of the vacation to ensure that their absence does not conflict with the needs of the division." It also provided "[a]lthough the purpose of vacation leave is rest and relaxation, employees may use accrued vacation for personal or family illness or disability, or for other personal reasons. . . ."
Shing's Requests to Use Vacation Time
On March 8, 2011, Shing sent an email to a HR analyst asking "If I don't have enough sick time for sick days, can I use my vacation time instead?" The analyst responded by providing the sick leave policy, which stated in part "[w]hen sick-leave credit is exhausted, vacation-leave or leave-without-pay rules apply . . . ." Later the same day, Shing's supervisor Crosson added: "However, sick leave and vacation leave are not interchangeable. For vacation leave to apply, a request must be submitted and approved in advance. If you do not have enough sick leave to cover your sick day and/or doctor's appointment, you would need to use leave without pay. [¶] However, since it seems your previous managers were not applying the vacation-leave as intended and to ensure that you are not disadvantaged by unexpectedly losing pay for this month, I will approve use of vacation leave this one time. But please know that, in the future, vacation leave can only be used if requested and approved in advance. Per policy, sick leave is intended to be used for illnesses and/or medical appointments." Shing thanked his supervisor for the clarification.
Early on July 27, 2011, Shing sent Crosson an email stating "I'm feeling very sick this morning[. I] think I need to stay home for the day. I don't have any sick day leave so if you can approve today as a vacation day it will be great." Crosson responded "I'm sorry to hear that you are not feeling well. . . . [A]s we talked about previously, vacation leave is intended to be used when requested and approved in advance. Per policy, sick leave is intended to be used for illnesses and/or medical appointments. If you do not have enough sick leave to cover your sick day, you will need to use leave without pay."
The following day, Shing emailed a response to Crosson. It stated in part: "First I want to say . . . I don't mean to challenge you on it, but rather I want[ ] to be treated as other employe[e]s from another division[ ] who are in the same position as me. [¶] I understand that you need to give advance notice for vacation, and that's why [in] my email to you I asked for your permission yesterday morning. It is impossible for me to give you a week['s] notice for a sick day. . . . [¶] . . . I just want to be fair and be treated like other employees who are in the same position[ ]. [¶] If you feel that this is still not going to work, I will apply for FMLA because of my medical condition and . . . to use my vacation in case I need to take days off for my health." (Emphasis omitted.)
Shing and others often referred in their emails and testimony to medical leave under the federal Family Medical Leave Act, 29 U.S.C. § 2601 et seq. (the FMLA), but Shing's complaint asserted a claim under the CFRA, not the FMLA. The FMLA "provides protections to employees needing family or medical leave similar to those provided by [the] CFRA. California courts applying [the] CFRA frequently rely on federal decisions applying [the] FMLA," but the "FMLA and [the] CFRA authorities may diverge in certain respects." (Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1254, fn. 8 (Avila).) Shing argues the CFRA and FMLA differ regarding an employee's use of vacation pay to cover medical leave. Nonetheless, Shing relies on references in the record to the FMLA to argue he engaged in protected conduct under the CFRA. The University does not contest Shing's reliance on references to the FMLA. Accordingly, like the trial court, and unless otherwise noted, we view references in the record to the FMLA as "functionally equivalent" to references to the CFRA.
A few days later Shing and Crosson discussed the matter in person. Crosson recapped the discussion in an email, stating "[n]otification the morning of your scheduled work day does not constitute advanced notice for the purpose of requesting vacation." (Underscoring omitted.) Crosson encouraged Shing to apply for medical leave, noting Shing mentioned he had already done so. Crosson added "FMLA provides job protected leave, but does not guarantee pay status—the same sick leave and vacation leave policies will still apply." The email concluded by noting Shing's sick day on July 27, 2011, would have to be corrected to reflect leave without pay.
Shing's request to use vacation time to cover his July 27 work absence prompted an internal discussion in August 2011 about use of vacation time during medical leave. Mari Cook, a HR manager, expressed the view employees needed supervisor approval for use of vacation time during medical leave. Cook argued "how are managers and supervisors suppose[d] to manage their staffing and workload issues if employees can take their vacation without approval?" Laurie Westphal, a disability manager and specialist managing family medical leave, disagreed. Westphal stated "in my 11 years here at LB[N]L, this has never come up as an issue until now. Employees have been using vacation for FMLA if chosen or instructed to by contract." Cook responded "I know it is our 'practice,' but there is a lot of abuse, so we need to iron it out, especially for 'intermittent' FMLA."
In response to an email asking for context, Westphal stated "[t]he case that started all this is Dominic Shing who works for Wade Crosson in HR. He has filed for annual FMLA intermittent leave the last 2 to 3 years and I think there are other Personnel issues they have with him. He is . . . on Provisionally approved Intermittent FMLA (he has to provide us the paperwork from his doctor still). . . . [O]ur past practice has been to allow the employee to choose to use Vacation for FMLA purposes and . . . [we have never] had to ask if their supervisor has approved the vacation usage for their leave. . . . He has not used any FMLA this year."
In October 2011, Shing sent an email to Madelyn Bello, a HR analyst, and Marquetta Rosser, a disability specialist in Health Services, seeking clarification "so that the lab can avoid any unnecessary, untrue/discriminate practices." (Emphasis omitted.) Shing stated: "I am currently on FMLA and I was told that I can not use FMLA Vacation time for sick time when FMLA sick time . . . [has] run out, because I have to give advance notice for FMLA Vacation Time. [¶] This is contrary to what I have been told by a great number of people before at the lab for the last 5 years. In addition, when my previous supervisor . . . was in charge of IRSO, she . . . had [no] problem with m[y] using FMLA Vacation Time for sick time because FMLA is approved by the doctor. [¶] If other employees at work can use their FMLA Vacation time without the need of advance notice, to me this would be bias against me. FMLA should apply to everyone . . . I would appreciate it if someone can clarify this for me, so that I don't have to take . . . [unpaid leave] when I don't have . . . FMLA sick time."
Shing also sent the email to the chief operating officer, Krupnick, who forwarded it to Chief HR and Diversity Officer Potapenko. Potapenko told Krupnick, "We will take care of this. I can brief you at our next 1-1." Potapenko told Bello and Rosser not to respond until Cook or Crosson provided additional guidance.
The following day, Crosson responded to Shing: "I am informed . . . you have requested an interpretation of the vacation policy in relation to FMLA leave. The Lab is in process of clarifying this policy and our current practice. In the meantime and until the policy is clarified, I wanted to let you know that you can use FMLA vacation for bona fide FMLA leave if your sick leave balance has been exhausted (so long as you have provided proper medical certification) without prior approval. Please be advised that the current practice is subject to change as a result of the policy clarification."
Shing asked what Crosson meant by "medical certification." Shing stated "I am not sure how I can provide that every time I feel sick and stay in bed at home. I thought the written authorization from my doctor . . . indicates that I can take intermittent[ ] leave under FMLA. Can you clarify if that is good enough?"
After sending this email to Crosson, Shing also forwarded the email string to Krupnick, stating "I understand you have an open door policy. That's why I am forwarding these emails to you. . . . [¶] I am not here to create any trouble for the lab. I have been at the lab for 10 years and have been doing a good job. I just want to be treated fairly like everyone else." Krupnick forwarded the email string to Potapenko, stating "we should discuss this afternoon." Potapenko responded "Yes, it was on my agenda." The following day, Rosser, from Health Services, clarified for Shing "Your FMLA was Designated and Wade [Crosson] has the information."
About four months later, in February 2012, Shing emailed Crosson about using vacation time for a prior sick day and for an upcoming doctor's appointment. Crosson emailed Cook asking "Are we still status quo with this issue?" There is no indication Shing was denied the ability to use vacation time to cover the requests.
The University's Decision to Terminate Shing
In June 2011, Potapenko had emailed Crosson and others proposing eliminating a number of positions, including Shing's, as part of a budget reduction for fiscal year 2012. Crosson responded "I am concerned about the effort it will take to figure out the re-distribution of IRSO's workload or alternate solutions." Potapenko replied "we should consider re-distribution to [Ortega and Guo] except for green cards that can be outsourced to the lawyers. I continue to not have enough data to be convinced that we need three in this area. [¶] . . . I just don't know what type of asset Dominic is to IRSO." (Emphasis omitted.) Potapenko testified this budget reduction planning is an exercise the directors go through every year. She picked the IRSO advisor position because she knew the cut would have a high impact and, therefore, was unlikely to occur. Shing's position was not eliminated at that time.
In late 2011 or early 2012, Potapenko directed Crosson to "look at the IRSO organization." Around January 17, 2012, Crosson completed a draft of the "IRSO Service Delivery Improvement Plan." The plan indicated the problem stemmed from the results of surveys in April and November 2011. The April 2011 survey indicated "notable concerns over customer service, communications, transparency of processes, and timelines." The November 2011 survey revealed visa services ranked high as an area needing improvement. The plan proposed a number of options to improve IRSO service delivery; it stated the IRSO "has not been effectively managed," and it proposed reorganizing the IRSO staff. The objective was to "[e]liminate one IRSO Advisor position and replace with a Supervisor/Manager position."
No later than June 2012, Potapenko, Crosson, and Krupnick decided to eliminate one of the two Senior IRSO Advisor positions, and "convert[ ]" the position into a new "supervisor manager role." Ortega's position was not eliminated because he was the most senior member of the group, possessed a greater level of institutional knowledge, was recognized as a subject matter expert for visa and immigration matters, and maintained a strong professional network outside LBNL.
Potapenko, Crosson, and Krupnick were involved in the decision to terminate Shing. Even though they decided to eliminate one of the Senior IRSO Advisor positions around June 2012, the layoff did not occur until May 2013. Crosson provided a number of explanations for the delay. First, an outside consulting firm was assessing HR service delivery for the entire department, and Crosson felt it would be "shortsighted and premature to make a reorganization change before we got the results from that assessment." The assessment was a six-month engagement that started around April 2012. Second, Crosson was planning changes to other business processes and he was concerned too many changes at once would be disruptive and compromise the quality of service in IRSO. Third, there were funding issues that had to be addressed because HR would be increasing the salary for the new supervisor position. The funding was obtained by October 1, 2012, the beginning of the 2013 fiscal year. Fourth, Crosson had to write the job description for the new position. Fifth, the payroll office had to validate whether Shing or Guo had more seniority, and payroll did not perform the official calculation until April 2013.
In May 2013, Crosson delivered a "business case" for the layoff to Michelle Lee, a HR manager. The document stated "we will eliminate one of the Senior IRSO Advisor individual contributor positions and convert that [full time employee] into a working supervisor with immigration technical expertise and responsibility for direct oversight of day-to-day execution as well as identifying and implementing process improvements. The new role will be classified as an IRSO Supervisor." Lee approved the business case. Crosson and Lee met with Shing to inform him of his layoff. The University posted the new "Immigration Services Team Lead/Supervisor" position in June 2013, and hired someone to fill the position in November 2013. In the interim, a temporary contract employee performed H1B visa work at the IRSO.
Shing's Complaint
In December 2013, Shing sued the University asserting two causes of action for "Termination for Taking Medical Leave" under the CFRA, and "Tortious Termination in Violation of Public Policy." Shing alleged "[f]rom June 2007 through the end of his employment on May 20, 2013," he "was approved for and used intermittent medical leave." Shing alleged Crosson would not allow him to use a vacation day to cover a sick day in July 2011 but, as a result of further discussion, Shing clarified "employees who exhausted sick leave could use vacation time to cover a sick day." Shing alleged "Crosson did not like being corrected . . . about medical leave policies." Shing was discharged in May 2013. Shing claimed his "use of medical leave" and his "assertion of his rights to use medical leave" was "a motivating reason" for his discharge.
Shing requested dismissal of the tortious termination cause of action, and the court dismissed it.
The University's Motion for Summary Judgment
The University filed a motion for summary judgment, arguing Shing could not establish a prima facie case of discrimination or retaliation, and there was a legitimate business reason for Shing's layoff unrelated to his requests for medical leave. Shing argued in opposition there were genuine issues of material fact as to whether there was a nexus between his protected status or conduct and his termination, and the University's proffered reason for Shing's termination was a pretext. In reply, the University argued Shing failed to produce specific, substantial evidence of pretext, relying instead on unreasonable inferences. The University reiterated there was a business need to restructure the IRSO.
Following a hearing, the court granted the University's summary judgment motion. The court assumed Shing made a prima facie showing his layoff constituted retaliation for his exercise of CFRA rights. However, the court determined the University demonstrated a legitimate, nonretaliatory reason for the layoff, and Shing did not respond "either by providing direct evidence of retaliatory motive or animus or by providing substantial evidence—as opposed to speculative inferences—that the University's proffered reason for the layoff was a pretext." The court determined it was unreasonable to infer Cook was talking specifically about Shing when she discussed "abuse" of intermittent FMLA. According to the court, "while it is undisputed that the HR team began looking at the issue of using vacation time to cover FMLA/CFRA leave in August 2011 because [Shing] had raised the issue . . . , [Shing] has identified no evidence from which the court could draw a reasonable inference that anyone in the HR Department suggested, during that inquiry, that [Shing] was abusing FMLA leave, or expressed retaliatory or discriminatory animus toward him." In addressing Shing's argument that the University's changes to the IRSO had not yielded benefits, the court found Shing's evidence was in part inadmissible, not convincing, and hindsight assessments of business judgment are irrelevant.
DISCUSSION
On appeal, Shing contends the court erred in granting the University's motion for summary judgment because triable issues of material fact exist as to whether the University terminated Shing for availing himself of, and asserting his rights under, the CFRA. We disagree.
I.
The CFRA and the Standard of Review
"The CFRA, which is contained within the [Fair Employment and Housing Act] (§ 12900 et seq.), 'is intended to give employees an opportunity to take leave from work for certain personal or family medical reasons without jeopardizing job security.' " (Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 878 (Faust).) The CFRA makes it an unlawful employment practice for an employer of 50 or more persons to refuse to grant an employee's request "to take up to a total of 12 workweeks in any 12-month period for family care and medical leave." (§ 12945.2, subds. (a), (c)(2)(A).) It is also an unlawful employment practice "to refuse to hire, or to discharge, fine, suspend, expel, or discriminate against, any individual because of" his or her "exercise of the right to family care and medical leave . . . ." (§ 12945.2, subd.
" 'Violations of . . . [the] CFRA generally fall into two types of claims: (1) "interference" claims in which an employee alleges that an employer denied or interfered with her substantive rights to protected medical leave, and (2) "retaliation" claims in which an employee alleges that she suffered an adverse employment action for exercising her right to CFRA leave.' " (Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 233.) " '[T]he elements of a cause of action for retaliation . . . are as follows: (1) the defendant was an employer covered by CFRA; (2) the plaintiff was an employee eligible to take CFRA leave; (3) the plaintiff exercised her right to take leave for a qualifying CFRA purpose; and (4) the plaintiff suffered an adverse employment action, such as termination . . . because of her exercise of her right to CFRA leave.' " (Avila, supra, 165 Cal.App.4th at p. 1254.)
CFRA discrimination or retaliation claims are subject to the burden-shifting analysis of McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802-805 (McDonnell Douglas). (Faust, supra, 150 Cal.App.4th at p. 885.) "Once an employee 'establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. [Citation.] If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation " ' "drops out of the picture," ' " and the burden shifts back to the employee to prove intentional retaliation.' " (Faust, supra, 150 Cal.App.4th at p. 885, quoting Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)
Summary judgment shall be granted if the court finds there is "no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) On appeal from a grant of summary judgment, we review the record de novo. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 (Guz).) "[W]e must view the evidence in the light most favorable to plaintiff, as the nonmoving party, liberally construing [his] evidence while strictly scrutinizing defendant's." (Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th 1088, 1098.) "We accept as true the facts . . . in the evidence of the party opposing summary judgment and the reasonable inferences that can be drawn from them." (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 254 (Nazir).) "[T]he evidence must be incapable of supporting a judgment for the losing party in order to validate the summary judgment. . . . [A] summary judgment cannot properly be affirmed unless a contrary view [of the evidence] would be unreasonable." (Faust, supra, 150 Cal.App.4th at p. 877.)
II.
Shing Fails to Create Triable Issues of Animus or Pretext
Shing contends the court erred when it determined he did not present evidence sufficient to create triable issues as to whether the University's reason for his termination was a pretext to hide its discriminatory or retaliatory intent. We are not persuaded.
A. Shing's Prima Facie Case of CFRA Discrimination or Retaliation
First, Shing contends the court erred by assuming, rather than expressly determining, Shing established a prima facie case of discriminatory or retaliatory discharge. His argument is meritless. When an employer moves for summary judgment of a discrimination claim, it is common for courts to proceed directly to the second and third steps of the McDonnell Douglas test; namely, to determine if the employer articulated a legitimate, nondiscriminatory reason for the adverse employment action, and if the employee rebutted this showing by pointing to evidence raising a rational inference of intentional discrimination. (Guz, supra, 24 Cal.4th at pp. 356-357; see Reid v. Google, Inc. (2010) 50 Cal.4th 512, 520, fn. 2 (Reid); Nelson v. United Technologies (1999) 74 Cal.App.4th 597, 613 (Nelson).)
Shing suggests the court's approach was error because "[t]he prima facie case may be considered in deciding whether there is sufficient evidence to find unlawful motive, and sometimes may suffice." (Italics added.) Shing relies on Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248 (Burdine), but, in that case, the United States Supreme Court stated "there may be some cases where the plaintiff's initial evidence, combined with effective cross-examination of the defendant, will suffice to discredit the defendant's explanation." (Id. at p. 255, fn. 10, italics added.) In other words, "an employee seeking to avoid summary judgment cannot simply rest on the prima facie showing, but must adduce substantial additional evidence from which a trier of fact could infer the articulated reasons for the adverse employment action were untrue or pretextual." (Loggins v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102, 1113 (Loggins).) Citing Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 806-807 (Horn), Shing concedes as much in his reply brief. The court committed no error in assuming Shing made a prima facie case.
In his reply brief, Shing also contends, for the first time, the University may have had mixed motives in terminating him. In Harris v. City of Santa Monica (2013) 56 Cal.4th 203, the California Supreme Court indicated the McDonnell Douglas framework does not apply in mixed-motive cases. (Id. at pp. 214-215.) But Shing did not argue below this case involved mixed motives. On an appeal challenging a trial court's grant of summary judgment, a reviewing court will not consider theories not advanced in the trial court. (DiCola v. White Brothers Performance Products, Inc. (2008) 158 Cal.App.4th 666, 676.) In any event, in his reply brief, Shing concedes the McDonnell Douglas framework applies.
B. The Court Did Not Err In Concluding Shing Failed to Create a Triable Issue of Discriminatory or Retaliatory Animus
Shing's request to use vacation time sparked an internal discussion in August 2011 about whether employees on medical leave could use vacation time without prior supervisor approval. During this discussion, Westphal, a disability manager, stated "[e]mployees have been using vacation for FMLA if chosen or instructed to by contract." Cook, a HR manager, responded "I know it is our 'practice,' but there is a lot of abuse, so we need to iron it out, especially for 'intermittent' FMLA."
Shing wonders "why now," and why "the sudden urgency to change 11 years of policy"? But the policy did not change. And while Shing's emails sparked the internal discussion, it does not follow he was being "targeted" for some form of adverse employment action.
Shing focuses on Cook's testimony concerning the phrase "a lot of abuse," and asserts email evidence "demonstrates animus against Shing for his perceived abuse of intermittent CFRA leave." Having considered Shing's analysis, we are not persuaded it is sufficient to create a triable issue regarding whether the University harbored discriminatory or retaliatory animus against him. Based on Cook's reference to "a lot of abuse," we can reasonably infer she viewed the practice of employees using vacation time to cover intermittent medical leave without prior supervisor approval as inconsistent with the University's vacation policy. But, after an internal discussion where different viewpoints were expressed, the University maintained its practice of allowing employees to do so, and it permitted Shing to do so in October 2011. We must consider the probative value of Cook's remark alongside all the evidence. (Reid, supra, 50 Cal.4th at pp. 541-542.) This evidence does not support a reasonable conclusion the University viewed Shing as a medical leave "abuser" or sought to retaliate against him for using medical leave. (See Horn, supra, 72 Cal.App.4th at p. 807 [an "issue of fact . . . is not created by speculation or conjecture"].)
Shing also argues the court should have "deemed unlawful" Crosson's refusal to allow Shing to use a vacation day to cover his July 27, 2011 sick day. The CFRA provides "[a]n employee taking a leave . . . may elect . . . to substitute, for leave . . . any of the employee's accrued vacation leave . . . . If an employee takes a leave because of the employee's own serious health condition, the employee may also elect . . . to substitute accrued sick leave during the period of the leave." (§ 12945.2, subd. (e).) Shing argues a jury should decide whether he requested, and was denied, CFRA-qualifying leave in July 2011.
The University responds that Shing "did not plead a claim that the University denied him any CFRA rights or interfered with his leave." The University contends we can "presume" Crosson should have permitted Shing to use vacation time "on each requested occasion," but "[s]uch a finding would still have no bearing on whether the University laid [Shing] off in May 2013 for exercising protected rights." Shing replies that "Crosson and the Potapenko HR Team sought to put a policy in place that was unlawful. . . . [and] [t]his contravention of [the] CFRA is evidence of animus towards Shing's exercise of rights under it." Shing argues his disagreement with Crosson is relevant to his "retaliation case," and "any conduct which tends to show . . . [the University] did not approve of, or sought to curb [his] CFRA use is relevant and to be considered . . . ."
We agree in part with the University and in part with Shing. On an appeal from summary judgment, we identify the issues framed by the pleadings. (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1252.) "[A] plaintiff wishing 'to rely upon unpleaded theories to defeat summary judgment' must move to amend the complaint before the hearing." (Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 648.)
Here, Shing's only cause of action was for "[t]ermination for taking medical leave." Shing alleged his "use of medical leave and [his] assertion of his rights to use medical leave was a motivating reason for Crosson's treatment . . . and . . . [the] discharge of [Shing's] employment." Because Shing did not expressly assert a cause of action for interference with his CFRA rights, we offer no opinion whether it was unlawful, under the CFRA, for Crosson to deny Shing's request to use vacation time to cover a requested sick day on July 27, 2011. Shing "cannot challenge a judgment on the basis of a new cause of action" he "did not advance below." (United States Golf Assn. v. Arroyo Software Corp. (1999) 69 Cal.App.4th 607, 623.)
But, as Shing notes, the CFRA's implementing regulations blur the distinction between an interference claim and a retaliation claim. They provide as an example of interference with CFRA rights "[t]erminating an employee when it anticipates an otherwise eligible employee will be asking for a CFRA-qualifying leave in the future." (Cal. Code Regs. tit. 2, § 11094, subd. (a).) They also provide the "CFRA's prohibition against 'interference' prohibits an employer from discriminating or retaliating against an employee or prospective employee for having exercised or attempted to exercise CFRA rights." (Id., § 11094, subd. (b).) These regulations suggest one way to show an employer interfered with CFRA rights is to show the employer retaliated against an employee for exercising those rights. But Shing did not plead an interference claim. Since Shing pled only a cause of action for retaliation or discrimination, the court was not required to determine whether Crosson's denial of the use of vacation time on July 27, 2011 constituted unlawful interference with Shing's exercise of his rights under the CFRA.
Nevertheless, we will take Crosson's conduct into account in determining whether the record reflects discriminatory or retaliatory animus against Shing such that the University was motivated to terminate Shing for asserting his CFRA rights. We will assume Crosson's conduct, especially his denial of Shing's request to use vacation time to cover a sick day in July 2011, supports the inference that Crosson, like Cook, disagreed with the University's policy of permitting employees to use vacation time during medical leave without prior supervisor approval.
But even so, it does not follow there is a triable issue the University retaliated or intentionally discriminated against Shing for exercising his rights to CFRA medical leave. The University did not side with Cook and Crosson. Instead, the University maintained its previous practice. One day after Shing's October 2012 inquiry, Crosson told him "you can use FMLA vacation for bona fide FMLA leave if your sick leave balance has been exhausted . . . without prior approval." Shing does not argue the University denied his subsequent requests for medical leave or to substitute vacation days for medical leave. Under these circumstances, the record does not support a reasonable inference the University sought to terminate him because of his use of vacation time during medical leave. (See Guz, supra, 24 Cal.4th at p. 360 [plaintiff must create triable issue that decision was "actually made" for prohibited reason]; Nelson, supra, 74 Cal.App.4th at p. 614 [where nonmoving party relies on "improbable inferences, and unsupported speculation," then "summary judgment may be appropriate even where intent is an issue"].)
To show the decision to terminate him was really motivated by discriminatory or retaliatory animus, Shing points to Potapenko's October 11, 2011 emails to Krupnick asking "he sent this to you?" and telling Krupnick, "We will take care of this. I can brief you at our next 1-1." Potapenko told others not to respond until Cook or Crosson provided additional guidance. According to Shing, these emails show "Potapenko and Crosson saw Shing as a problem." Shing also considers it suspicious that "upper management" did not "directly respond" to his emails, despite its "open door policy."
It is speculation to view these emails as indicating the University saw Shing as a problem or as an expression of "clear alarm over Shing having complained to Krupnick." Potapenko told the HR analyst and disability specialist not to respond because "we typically follow the traditional line of supervision," and Crosson was Shing's direct supervisor. The same reasoning explains why the chief operating officer did not respond. When asked if she thought Shing was "a little too bold in sending these emails and copying Mr. Krupnick," Potapenko responded "[a]t our laboratory employees feel very comfortable reaching out to senior management." During her meeting with Krupnick, Potapenko "explained the circumstances and the situation and that we were looking at our practices and our policies and that we were looking to make sure that they were consistent and fair for all employees." Potapenko testified no one at LBNL ever expressed to her Shing was abusing the medical leave policy. One day after Shing's email, Crosson confirmed Shing could use vacation time during medical leave without prior supervisor approval.
Relying on Nazir, supra, 178 Cal.App.4th at p. 283, Shing points out very little evidence of discriminatory intent is necessary to defeat summary judgment. But in Nazir, the plaintiff's work colleagues repeatedly subjected him to years of harassment based on his national origin, and the plaintiff was fired after an inadequate investigation of a sexual harassment claim. (Id. at pp. 257-258, 276-281.) Here, the circumstances are far different. Even if a reasonable juror could conclude Crosson and Cook disagreed with the practice of permitting use of vacation time during medical leave without prior supervisor approval, the University did not change its practice. The University's reaction to Shing's emails does not suggest animosity or ill-will against Shing, or otherwise suggest the University was motivated to terminate him because of his assertion of CFRA rights. A contrary view of the evidence is unreasonable. (Faust, supra, 150 Cal.App.4th at p. 877.)
C. The Court Did Not Err In Concluding Shing Failed to Create a Triable Issue of Pretext
According to the University, Shing was laid off as part of a planned reorganization of the IRSO to improve service delivery, to create a new supervisor position in the IRSO, and Shing had less seniority than the other Senior IRSO Advisor. To avoid summary judgment, Shing was required to adduce evidence the "proffered explanation is unworthy of credence." (Burdine, supra, 450 U.S. at p. 256; Guz, supra, 24 Cal.4th at p. 363 ["in an appropriate case, an inference of dissembling may arise where the employer has given shifting, contradictory, implausible, uninformed, or factually baseless justifications for its actions"].)
Relying on Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467 (Flait), Shing argues "a factfinder could reasonably deduce that the decision to terminate Shing was made within approximately two months of his October 12, 2011, complaints to the HR team, including COO Krupnick." In Flait, the court stated "[p]retext may . . . be inferred from the timing of the company's termination decision, by the identity of the person making the decision, and by the terminated employee's job performance before termination." (Id. at p. 479.)
Flait is factually distinguishable. In that case, the plaintiff complained that a corporate officer's comments sexually harassed another employee, and the plaintiff was fired a few months later. (Flait, supra, 3 Cal.App.4th at pp. 472-473.) There was substantial evidence the proffered justification for the termination was "bogus." (Id. at p. 479.) The company's stated reasons for terminating the plaintiff did not ring true, the plaintiff had increased sales by 60 percent, and he was a recent candidate for promotion. (Id. at p. 480.)
Here, unlike in Flait, Shing fails to present evidence indicating the University's IRSO reorganization plan was a pretext for terminating Shing for asserting his right to CFRA medical leave. Shing points to the timing of the decision to reorganize the IRSO, which occurred within months of Shing's emails. But temporal proximity does not suffice to create a triable issue of pretext. (Loggins, supra, 151 Cal.App.4th at p. 1112.) Moreover, the University's plan stemmed in part from the results of two surveys conducted in April and November 2011 that revealed concerns about IRSO customer service. The April 2011 survey predated Shing's emails. And Shing was not terminated until May 2013, nineteen months after his emails regarding use of vacation time during CFRA medical leave, because he had less seniority than Guo, the other Senior IRSO Advisor. Shing fails to create a triable issue that the University's consistent explanation for his termination was false. (See Horn, supra, 72 Cal.App.4th at p. 813-814 [finding reason for termination was not pretextual in part because explanation was consistent].)
Shing offers a number of other arguments why we should not give credence to the University's explanation for his termination, including the lack of documentation associated with the reorganization plan, the decision not to terminate Ortega, Ortega's testimony the "IRSO didn't need any more rearranging as far as the visa processing was concerned," Shing's contention "the new supervisor . . . is doing the same work that Shing did" and she has not "done anything to innovate," and Shing's suggestion the real reason he was not terminated sooner was because of a hiring freeze.
We are not persuaded these arguments create a triable issue of pretext. The IRSO Service Delivery Improvement Plan was a document associated with the reorganization, and Ortega's position was not eliminated in part because he had more seniority than Shing. We find no error or abuse of discretion in the court's evidentiary ruling that Ortega's opinion was inadmissible as speculative and lacking foundation, and even if the new supervisor has not made the IRSO more efficient or improved customer service, the University's true reason for terminating Shing "need not necessarily have been wise or correct." (Guz, supra, 24 Cal.4th at p. 358.)
Shing contends the University must have known from the beginning Shing's position would be the one eliminated because of events that occurred in 2011, including a proposed cut to Shing's position as part of a budget reduction exercise. There was also evidence Potapenko provided ten-year service awards to Ortega and Guo in 2009, and to Shing in 2012, so she must have known Shing had less seniority. Shing contends it would have taken Crosson five to ten minutes to use software to determine Shing's and Guo's length of service. On the other hand, Crosson believed Shing's and Guo's ten-year anniversaries occurred around the same time, and he testified merely knowing an employee's start date was not sufficient to determine seniority because any leave taken during the course of employment could impact the payroll department's calculation.
Based on this evidence, a juror could reasonably infer Potapenko and Crosson knew or suspected when they began considering a reorganization of the IRSO that Shing's position would be the one eliminated. However, the court specifically addressed this point when it stated "[e]ven assuming that its decisionmakers did know or strongly suspect that [Shing's] position would be the one eliminated, that fact alone does not constitute evidence that the reorganization was motivated by a desire to remove him. Knowing that an action will have a certain effect is not the same as being motivated to take the action because of that effect."
We agree with the reasoning. Even if Crosson or Potapenko knew Shing was the least senior IRSO advisor, we still cannot conclude there is a triable issue the IRSO reorganization plan was motivated by the desire to terminate Shing for his use of CFRA medical leave. After all, the University did not change its policy regarding use of vacation time during medical leave and permitted Shing to do so in October 2011. It is unreasonable to infer Shing's emails caused the University to devise this long-term plan to terminate him. (See Kidron v. Movie Acquisition Corp. (1995) 40 Cal.App.4th 1571, 1580-1581 [inferences from the evidence must be reasonable and cannot "be based on mere possibility or flow from suspicion"].)
In his reply brief, Shing criticizes the University for citing federal cases that rely on the "honest belief" defense to claims of wrongful termination. In the Seventh Circuit, a reason honestly believed is not a pretext for unlawful discrimination or retaliation even if it is mistaken. (Kariotis v. Navistar Intern. Transp. Corp. (7th Cir. 1997) 131 F.3d 672, 676-677.) In Richey v. AutoNation, Inc. (2015) 60 Cal.4th 909, the California Supreme Court declined to decide whether employers can rely on the doctrine when defending against claims of CFRA retaliation and failure to reinstate following CFRA leave. (Id. at pp. 915, 921.) Richey is distinguishable because it concerned a termination based on the employer's belief the employee was violating company policy while on CFRA or FMLA leave. (Ibid.) Here, the University's explanation for Shing's termination did not concern the University's beliefs about Shing's conduct while on medical leave. Shing fails to create a triable issue the University's explanation was a pretext, and that he was actually terminated in retaliation for exercising his CFRA rights. The court properly granted the University's motion for summary judgment.
DISPOSITION
The order granting the University's motion for summary judgment is affirmed. The University is entitled to costs on appeal. (Cal. Rules of Court, rule 8.278(a).)
/s/_________
Jones, P. J. We concur: /s/_________
Simons, J. /s/_________
Needham, J.