Whiteheadv.Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIADec 18, 2012
D059501 (Cal. Ct. App. Dec. 18, 2012)

D059501

12-18-2012

TIFFANY WHITEHEAD, Plaintiff and Appellant, v. CORPORATION OF THE PRESIDING BISHOP OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 37-2009-00077560-CU-WT-SC)

APPEAL from a judgment of the Superior Court of San Diego County, William S. Cannon, Judge. Affirmed.

In this action for wrongful termination in violation of public policy, plaintiff Tiffany Whitehead asserts that defendant Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints, doing business as Deseret Industries (Deseret Industries), terminated her employment with them in retaliation for her complaints about unsafe conditions in her workplace. Deseret Industries brought a motion for summary judgment, arguing that Whitehead could not show a "causal nexus" between her termination and her complaints because it fired her because of performance issues that predated her complaints. The court granted summary judgment in favor of Deseret Industries.

On appeal, Whitehead asserts the court erred by (1) applying a higher burden of proof on plaintiff than required by law; (2) failing to make reasonable inferences from the evidence in her favor; and (3) sustaining Deseret Industries' objections to her evidence and overruling all of her objections, without explanation. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Deseret Industries

Deseret Industries is a division of the Welfare Services Department of The Church of Jesus Christ of Latter-Day Saints that operates a chain of nonprofit thrift stores throughout the United States. Deseret Industries sells new and refurbished clothing and household items at discounted prices. The two purposes of the thrift store sales are to help fund a vocational rehabilitation program provided to disadvantaged individuals and to serve as the training grounds for the program. The program offers individuals who have psychological, social, physical and/or vocational challenges the chance to acquire skills and training that will enable them to find stable employment.

Individuals who participate in the vocational training program are called "associates." Associates work in Deseret Industries' thrift stores for approximately one year while receiving training and counseling designed to help them become self-reliant and employable. In addition to the associates, the stores also employ several permanent staff members, including store managers, development coordinators, and job coach trainers.

B. Evidence Submitted in Support of Motion for Summary Judgment

1. Deseret Industries hires Whitehead

In December 2007 Deseret Industries hired Whitehead as a part-time development coordinator for its Chula Vista store. Although Whitehead testified that she was "embarrassed" at the thought of working in a thrift store, she became interested in the position because "it's something that I hadn't done before and it . . . paid more." Typically, Deseret Industries hires development coordinators who have experience in social service or vocational rehabilitation work since they work so closely with disadvantaged associates. Kirk Chapman, a development manager based in Los Angeles, hired Whitehead despite her lack of experience in vocational rehabilitation because she was one of only two applicants and he was hopeful he could train her.

As development coordinator, Whitehead was responsible for overseeing the mentoring and training of the Chula Vista store associates, including enrolling new associates, conducting vocational assessments, administering "in-service" trainings, tracking associate development through monthly reports, and monitoring associate placement after they left the program. The development coordinator, who is critical to the success of the vocational rehabilitation program and its associates, must be able to create meaningful relationships with the associates to effectively mentor and train them. In addition to reporting to Chapman, Whitehead also worked with Chula Vista store manager, Joseph Ayers.

Although Whitehead did not formally report to Ayers, as store manager he had ultimate authority over operational matters in the store, and Whitehead, as the development coordinator, was expected to defer to the store manager's decisions on associate screening and enrollment, associate discipline, and other operational issues.

2. Concerns arise about Whitehead's performance

From the outset, Chapman was concerned about Whitehead's ability to do the job she was hired to do. He observed Whitehead resist his direction, act disinterested, tell him and others who were asked to train her that she did not need training, and deliberately avoid him by not working her standard schedule when he visited the store.

On February 6, 2008, Chapman e-mailed his supervisor, field group manager Scott Todd, about his "concerns about whether [Whitehead] is going to work out as the Development Coordinator" and to inquire about the procedures for terminating her employment. Todd and Chapman met with Whitehead to discuss their concerns about her performance in February 2008. They discussed Whitehead's poor interactions with and insubordination towards Chapman, her failure to work her selected schedule of hours, her failure to seek Chapman's approval for changes to her schedule, and the need for Chapman to approve training and reports. In addition, Chapman expressed concern that these issues would affect other staff and associates and team unity.

Chapman saw no improvement after the meeting. Whitehead continued to work more than her scheduled hours without approval, failed to seek his approval in modifying her schedule, and avoided talking to him. His primary concern was that her poor performance and erratic behavior would negatively impact the associates.

In April 2008 Chapman again recommended that Whitehead's employment be terminated. Consistent with the principles of its vocational rehabilitation program, however, Deseret Industries chose not to terminate Whitehead's employment, after which Chapman drafted a letter to Todd expressing his frustration at "not [being] supported by management" and for "[Whitehead being] rewarded for insubordination and general poor behavior and performance."

In April 2008 Deseret Industries underwent a reorganization of its field groups. As a result, the Chula Vista store was assigned to Salt Lake City-based field group manager Richard Turnbow, who oversaw nine stores in three states. At a meeting in Salt Lake City about the reorganization, Todd, the previous field group manager for the Chula Vista store, advised Turnbow he believed Whitehead was a "mis-hire."

Turnbow visited the Chula Vista store shortly after the reorganization to assess store operations and to meet the staff. He told the store manager, Ayers, that the store was cluttered and not as clean as he would like. Ayers acknowledged these issues and stepped up his efforts to clean the store.

In late April 2008, Turnbow assigned Glenna Sweat, a development manager based in Salt Lake City, to become Whitehead's supervisor. Approximately one month later, Turnbow assigned Chris Petrick, another development manager based in Salt Lake City, to become Whitehead's permanent supervisor, with Sweat continuing to train Whitehead through June 2008.

In May and June of 2008, Sweat arranged for Whitehead to receive training. Sweat emphasized to Whitehead that the development coordinator was a service provider to store management and staff and that she needed to follow the store manager's final decision on matters such as what trainings to hold and which associates to hire. Whitehead would often call Sweat several times per week to complain that the associates, job coaches, the store manager, and other employees in the store were not doing what she told them to do or were not doing things the way she thought they ought to be done. Whitehead complained to Sweat about the furniture in her office, but she never expressed concerns to Sweat about unsafe conditions in the store.

Sweat invited Whitehead to Utah in or about May 2008 to receive training from her and other experienced staff members. Whitehead appeared distracted and disinterested during the Utah trainings, did not ask questions, and did not take notes.

Sweat developed concerns about Whitehead's ability to empathize with the associates. Whitehead asked Sweat if she could fire associates who showed up late, made mistakes, or did not do what she told them to do. Sweat reminded Whitehead that Deseret Industries' mission is to provide associates, many of whom suffer from physical and/or mental disabilities, with training and support to get back on their feet and hold down a job. Sweat also encouraged Whitehead to be more empathetic to the associates, told Whitehead that she did not have the authority to remove an associate from the program, and reminded her that "[w]e are not the normal industry job," "[w]e do give people extra chances and try to help them increase their ability to get and keep a job elsewhere." Sweat also thought that Whitehead was too harsh with the associates. Sweat admonished her to be empathetic in communicating vocational assessment results to associates, reminding her that "this information is sensitive and you need to be careful that you do not destroy the associate during this meeting."

During Whitehead's training in Utah, one of the job coaches assigned to train her observed an example of Whitehead's lack of empathy towards associates. While the job coach was working with Whitehead on the production floor, an associate with Down syndrome accidently brushed Whitehead with a trash bin as he was taking out the trash. Although it was obvious that the associate had Down syndrome and had no intention to brush into her, Whitehead expressed extreme displeasure with the associate and appeared extremely upset to the job coach. The job coach was concerned because these types of incidents are not unusual when working with associates.

Petrick became Whitehead's new supervisor in or about May 2008. Petrick reviewed Whitehead's personnel file and was surprised to learn that she had no prior experience in social service work. Sweat had told Petrick of other concerns relating to Whitehead's performance and attitude toward the associates. Petrick became concerned about her ability to perform well as a development specialist when he first met with Whitehead and observed her interactions with associates. Whitehead appeared to be unable to connect with the associates and interacted with them in a mechanical and uncaring manner. It appeared to Petrick that there was a significant absence in Whitehead's skill set as to her ability to interact meaningfully with people. Instead of providing the "helping hand" that the disadvantaged associates needed, Whitehead seemed to pride herself on giving them the "smack down," a phrase that she used to describe her style of communicating with them.

3. Conflicts between Whitehead and Ayers

Over the first few months of her employment, Whitehead had a good relationship with the store manager, Ayers. During Whitehead's training with Sweat in May 2008, however, she complained about Ayers and appeared to question his authority to hire and discipline associates, and to control store scheduling and expenditures. Sweat had to remind Whitehead to respect the authority of the store manager.

Over the next several months, the relationship between Whitehead and Ayers deteriorated. Whitehead thought Ayers was explosive and temperamental. Ayers accused Whitehead of scheduling meetings that he had not approved; purchasing supplies without his approval, refusing to communicate with him, failing to work her standard schedule, inappropriately inserting herself into operational issues, and undermining and circumventing his authority. As they began to clash over minor issues, Whitehead often resorted to calling or e-mailing Petrick and/or Turnbow to ask who was "right," even though such issues are usually handled at the store level.

To Petrick, it seemed that Ayers and Whitehead were embroiled in a personality conflict and power struggle. At Deseret Industries, the store manager has ultimate authority on all operational and human resources decisions pertaining to associates. Whitehead seemed to have difficulty accepting that Ayers had ultimate authority over such decisions. Petrick repeatedly reminded her to focus on her job serving the associates.

In June 2008 Whitehead continued her pattern of wanting to terminate associates for minor issues like being late or not completing tasks she had assigned to them. Whitehead wanted to terminate associates for the very struggles that had led them to enroll in the associate training program and seek the help of Deseret Industries. Petrick continued to counsel Whitehead about the need to be empathetic with associates.

4. Whitehead raises concerns about conditions at the Chula Vista store

After his first visit to the Chula Vista store, Turnbow remained concerned about the general store conditions under Ayers's management. Turnbow had shared those concerns with Petrick and so when Whitehead sent an e-mail to Petrick on June 30, 2008, complaining about store conditions, Petrick thanked her and promptly forwarded her e-mail to Turnbow. In a June 30, 2008 e-mail to Petrick, Whitehead stated that the associate break room was "very dirty and possibly unhealthy" and that the furniture was old and discolored. She also raised concerns that there might be mold in the staff bathroom due to a previous water leak in that bathroom.

5. Deseret Industries' response

Turnbow appreciated Whitehead raising such concerns. In a reply e-mail to Whitehead, Ayers thanked her for "being alert" about conditions at the store and informed her that he and Turnbow had been working on making repairs and improvements to the building.

Turnbow suggested to Ayers that he engage a vendor to do a major cleaning and sterilization of the associate break room, stating "[i]t can only help long term." Turnbow also directed Ayers to work with the local Deseret Industries' facility manager to address Whitehead's concerns. Ayers hired an outside vendor to conduct a deep cleaning and sterilization of the break room and purchased new furniture for the associates. Ayers also hired an outside vendor to test the staff bathroom for mold. Although test results demonstrated that the mold levels were minute and therefore posed no health concerns, Ayers hired a mold abatement company to make all necessary repairs, including removing/replacing part of the wall, treating the area with a mold inhibitor, replacing the baseboard, and repainting.

On July 28, 2008, Whitehead e-mailed Turnbow directly to report that a seldom used custodial closet also had a water leak and possible mold. Two days later, she e-mailed Petrick to report that some of the store electrical wall plates in the store were missing or broken. Ayers and Turnbow thanked her and arranged to have the custodial closet cleaned, the drain in the custodial closet repaired, and the electrical outlets recovered.

In addition to testing the restroom, Ayers had the outside vendor test for mold in the custodial closet, and again the test showed that the mold levels were not harmful. Nonetheless, Deseret Industries requested and received bids for remedial work in the custodial closet. Because the cost of the proposed work exceeded the store's operational budget, and given no safety issues, it was submitted to be paid out of the following fiscal year's (2010) budget and was completed in August 2010. In the meantime, in October 2008, preventative work was performed in the custodial closet.

Whitehead testified she did not believe the mold abatement company removed and replaced the wall because they finished the job in one day, but she submitted no evidence to support this belief.

During a meeting with Petrick and Whitehead in August 2008, Turnbow again thanked Whitehead for raising her concerns about the store and compared her favorably to "Norma Rae," the famous female union organizer. Whitehead was flattered by the comparison, which she considered a compliment.

In August 2008 Whitehead acknowledged that Deseret Industries' management was addressing her concerns about the store conditions. By November 2008 she expressed her appreciation for the "great improvements" made in the buildings and stated that she no longer viewed store operations as an issue.

6. Continued concerns over Whitehead's performance

Over the summer and continuing into the fall, Whitehead and Ayers continued to get into disagreements over associate hiring and disciplinary matters. On August 5, 2008, Ayers called Petrick to seek direction after Whitehead would not allow Ayers to remove associate job applications from her office. During the call between Ayers and Petrick, Petrick could hear Ayers calling for Whitehead to come into his office to talk to Petrick, which she refused to do. Whitehead falsely told Ayers that she was meeting with his boss, Turnbow, that night. When Turnbow found out about her comment, Turnbow asked Whitehead why she had lied. Whitehead admitted to Turnbow that her remark was an "overstatement to [Ayers] to make him nervous" and that she wanted to stress the importance of her position to Ayers. Turnbow told her that it was a "flat out lie" and unacceptable.

On August 21, 2008, Whitehead e-mailed Turnbow to complain that Ayers asked her to enroll an associate he had scheduled to start working that day, telling him that she was too busy to do this. Turnbow then e-mailed Ayers to remind him to communicate with Whitehead on such issues, to which Ayers responded that Whitehead refused to talk to him that morning, including shutting her door on him, and hanging up the phone on him. Turnbow investigated the incident by asking Nathan Cressall, a job coach at the store, what had happened. Cressall wrote to Turnbow that Whitehead walked away from Ayers in the middle of the conversation. Whitehead then left the facility without telling Ayers. When Whitehead complained to Petrick and Turnbow about the incident, they made it clear that she "must communicate with [the store manager] and make this partnership work." Turnbow told Whitehead she was "having a hard time with the fact that even if [Ayers] is not your direct supervisor, he is in charge of the Chula Vista store." Turnbow's view of the incident was that Whitehead had engaged in insubordination.

Petrick reiterated to Whitehead his concerns about her poor working relationships during a quarterly results meeting with her in September 2008, when he told Whitehead that her repeated complaining about Ayers was creating a negative atmosphere at the store and that her supervisors were "growing fatigued with continuously returning to issues that had already been relayed." He reminded her that the purpose of Deseret Industries, to assist the associates, was impacted by the negative store atmosphere.

Within a few weeks, Petrick and Turnbow received additional complaints from Ayers that Whitehead had a very poor attitude, continued to schedule meetings when he was out of the office, made purchases without his approval, and failed to work her scheduled hours. In response, Turnbow counseled Ayers that "the key principle here is [not] who is [] right or wrong or who is in charge, just that we partner for the good of the associate."

Whitehead responded to the criticisms of her performance by telling Turnbow that the associates were very unhappy with Ayers's leadership, asking Turnbow to meet individually with the associates about Ayers. Turnbow agreed and visited the Chula Vista store on October 11, 2008. When Turnbow met with the associates, however, most of them had only positive things to say about Ayers, revealing that Whitehead had asked them to tell Turnbow "bad things" about Ayers. Turnbow reported that most of the associates described Whitehead as "mean" or "rude" and/or stated that she did not like them. This was particularly alarming to Turnbow given the need for the development coordinator to be empathetic to associates.

On October 11, 2008, Turnbow wrote his boss, Rich McKenna, an e-mail summarizing what he had learned during his meetings with the associates and recommending that they terminate Whitehead's employment. Learning of Whitehead's poor relationship with the associates confirmed to Turnbow what Todd had previously told him about Whitehead being a "mis-hire." Up until this visit, Lurnbow had held out judgment on whether Whitehead or Ayers was the cause of their poor interactions, but, as he stated to McKenna in the e-mail, "It was very obvious during this trip who is the common denominator in creating the problems," and "[t]here is a clear picture where the moral[e] problem in the store is coming from and it is from [Whitehead]." He wrote to McKenna that both he and Petrick "have addressed the problem of not supporting management with [Whitehead] many times," but "she is not the right fit for the position" and "she cannot accept authority giving directions to her."

7. Whitehead is placed on probation

Despite Turnbow's recommendation, Deseret Industries decided to give Whitehead one more chance to improve her performance. On October 27, 2008, Petrick and Turnbow notified Whitehead she was being placed on probation and that, if she did not significantly improve her performance within 30 days, her employment might be terminated. The probation letter identified several concerns, including Whitehead's unwillingness to engage and interact with the store manager, her interference with store operations and associate disciplinary actions, and a perception within the store that she shows a lack of respect.

Of relevance to this appeal, the letter stated, "We have specifically reviewed with you that it is not your responsibility to take over or involve yourself in operational situations that do not apply to your specific role as a Development Specialist. To this point, you continue to overstep your authority by dealing with operational concerns in the store." The letter identified five specific concerns about Whitehead's performance: "1. Being unwilling to engage and interact with the Store Manager. [¶] 2. Over advocacy for Associates with performance issues. [¶] 3. Interfering in operational situations where store management has made decisions. [¶] 4. Showing a tendency to overstate concerns. [¶] 5. A perception within the store that you show a lack of respect."

The probation letter also set forth specific requirements to assist her in meeting job expectations, to improve her level of service to associates and management, and to dismiss any perceptions of not showing respect to associates and coworkers. The probation letter did not address her complaints about the sanitary conditions at the store.

One week after being placed on probation, Whitehead became embroiled in a dispute with two job coaches and the store manager over associate job applications where she refused to talk to them, stormed out of the office, and slammed the door. She then called Petrick to complain about the incident. Petrick directed her to go back to the office and work with the coaches and the store manager to select the associates. Whitehead later admitted to Petrick that she had not followed his instruction, which he considered to be insubordination. Turnbow investigated the incident, and both job coaches reported that Whitehead had overreacted to the situation and acted in an "abrasive," "defensive," and/or "slightly unprofessional" manner. Job coach Jovany Escobar reported he was "glad no associates witnessed" the incident.

On November 17, 2008, Whitehead held an in-service training while Ayers and Lorin Parks, a Deseret Industries employee visiting from Utah, were out of the office for lunch. Parks reported to Turnbow that Whitehead appeared to have waited until Ayers and he had left for lunch to hold the in-service training with the associates and staff. When they returned, Whitehead ignored Ayers's request to let him know when she would be scheduling future in-service trainings, and walked away. Parks stated his "impression was that [Whitehead] clearly blindsided [Ayers]'' and that Whitehead "should have coordinated the meeting with him." He also observed that "[Ayers] tried to address the concern, but [Whitehead] appeared agitated and seemed to not want to discuss the matter."

The next day, during Turnbow's investigation of the in-service incident, Whitehead falsely claimed in an e-mail to Turnbow that Petrick had authorized her to conduct in-service training by telephone. In fact, Petrick had not authorized Whitehead to conduct trainings by telephone and told her he was disturbed by her misrepresentation of the truth.

Turnbow's investigation of the incident increased his concerns about how Whitehead's conduct negatively impacted the associates and the store environment. In his e-mail to Whitehead about the incident, he said the "big problem here [is] you not notifying [Ayers] when you are holding inservice" and her lack of communication with Ayers, as witnessed by Parks, "is showing us that you will not engage with [Ayers] and that you refuse to work in a respectful manner."

At the conclusion of Whitehead's probationary period, on November 25, 2008, Turnbow returned to the Chula Vista store and spoke with the staff members and several associates about Whitehead. In an e-mail to Petrick, Turnbow wrote the "overwhelming feeling" was that Whitehead is "stern," "rude," "unfriendly," had a "bad personality," "favors certain people," "only talks to some," "never talks to me," "insubordinate," "ignores [Ayers]," and is a "poor fit to work with people." He also reported that Cressall, a job coach with whom Whitehead is still friendly, stated that Ayers was being much better in trying to interact with Whitehead, but that Whitehead is "hyper sensitive, "abrasive to Ayers," and "ignores" Ayers even though he talks to her in a civil manner. Cressall also stated the "associates feel that [Whitehead] does not have their best interest at heart." A clerk named Terrisita told Turnbow that Whitehead was "very stern" and "not a good personality for working with people." These comments affirmed Turnbow's belief that, even setting aside Whitehead's insubordination, lies, and unprofessional behavior, she could no longer continue in the development specialist position because she was unable to help the associates when she was perceived so poorly by so many of them.

Based on what Turnbow heard during this visit, Turnbow concluded that Ayers had in fact made significant improvement in attempting to communicate with Whitehead, whereas Whitehead had not made improvement and instead had rebuffed Ayers's efforts.

On November 26, 2008, Petrick and Turnbow met with Whitehead. They expressed to her their serious concerns about her lack of improvement while on probation and explained that she was not a good fit for the development specialist position. Whitehead refused to take any responsibility for how she was perceived by the associates and instead blamed Ayers for her problems and lack of communication.

8. Whitehead's termination

On December 13, 2008, Petrick and Turnbow recommended to McKenna and McFadden that Whitehead's employment be terminated because she had failed to make significant improvement after being placed on probation and was unable to provide associates with the mentoring and training they needed. McFadden and McKenna agreed with and approved the recommendation, and on January 7, 2009, Petrick and Turnbow informed Whitehead that her employment was terminated.

During the discussion of whether to terminate Whitehead's employment, McFadden, McKenna, Petrick, and Turnbow did not mention or consider Whitehead's complaints about the store's condition from six months prior. Ayers was not consulted regarding the decision to terminate Whitehead's employment. Ayers did not find out that Whitehead's employment had been terminated until Petrick arrived at the store to communicate the decision to Whitehead.

9. Whitehead's complaint

In her complaint, Whitehead included one cause of action for wrongful termination in violation of public policy. She alleged she was terminated in violation of the public policy set forth in California Labor Code section 6310, which prohibits discharging an employee for making an oral or written complaint about unsafe working conditions or work practices in a place of employment.

10. Deseret Industries' motion for summary judgment

Deseret Industries moved for summary judgment on the ground that Whitehead could not demonstrate a causal nexus between her complaints about the facility and her termination. Deseret Industries argued that Whitehead was disciplined and terminated due to her long history of performance problems, which predated her complaint about safety issues; that Deseret Industries thanked Whitehead for raising concerns about the Chula Vista store, remedied the issues, and did not hold any retaliatory intent towards her; that the lack of a causal nexus was underscored by the fact that documented performance problems predated her complaint and by the fact that the termination occurred nearly six months after she complained; and that Whitehead had proffered no evidence of any connection between her complaint and the termination.

C. Whitehead's Evidence in Opposition to Summary Judgment Motion

In response, Whitehead relied on two items of evidence in attempting to raise a triable issue of fact: (1) the language of her probation letter; and (2) declarations from some associates and employees that they never told Turnbow they disliked Whitehead.

Specifically, she argued that the following inferences could be drawn from the probation letter (1) to avoid advocacy for associates; (2) to avoid interfering in operational situations where store management has made a decision; and (3) to not overstate concerns.

As to the alleged complaints about how she interacted with others, she submitted declarations from three associates (Siam Saunders, Jim Cortez, and Kim Alvarado) and one employee (Sheila Mancera), who stated that they never told Turnbow that Whitehead was "mean, rude, uncaring, unfriendly or a poor fit." They also denied that Whitehead ever told them to say "bad things" about Ayers.

D. Court's Ruling

After hearing oral argument by counsel for the parties, the court granted Deseret Industries' motion. The court found that Whitehead had not raised a triable issue of whether a causal link existed between her complaints about the health conditions in the workplace and her termination. The court also concluded that there was no evidence to support Whitehead's speculation that she was terminated for complaining about workplace safety. The court found she had performance issues prior to her complaints and that her performance failed to improve sufficiently after being placed on probation. The court considered and rejected the two main bases for Whitehead's argument on appeal that a triable issue was created by (1) declarations of former associates and a staff member submitted by Whitehead and (2) the wording of Whitehead's probation letter.

In this regard, the court stated as to the alleged complaints about Whitehead from staff and associates, "Plaintiff argues a triable issue of fact exists because Turnbow falsely stated that the associates and staff told him that they did not like plaintiff and that plaintiff asked them to say bad things about Ayers. Plaintiff submits declarations from former associates Saunders, Cortez, Alvarado and senior clerk Mancera wherein they state they never told Turnbow that plaintiff was mean, rude, uncaring or unfriendly or that plaintiff told them to tell Turnbow bad things about Ayers. However, Turnbow did not testify that each and every staff member and associate spoke poorly of the plaintiff. Turnbow gave a list of the people he met with but he did not recall during his deposition which person . . . described plaintiff as 'mean' or 'rude.' [Citation.] His November 25, 2008 email says he visited each staff member and several associates and the 'overwhelming feeling' is that plaintiff is 'stern,' 'rude,' etc. Moreover, he acknowledged not everyone was critical of the plaintiff. The fact that a few associates and one staff member did not consider plaintiff to be rude, etc. does not make Turnbow's testimony false."

As to the probation letter, the court stated, "Plaintiff also contends the probation letter 'can reasonably be inferred to stop complaining'. This case turns on whether plaintiff was terminated because she complained about unsafe working conditions. Plaintiff was being taken to task for her inability to forge an effective working relationship with the store manger. Plaintiff was directed to improve her 'professional interaction with the store manager', to 'work with management as a partner in managing associate performance issues', to 'interact with store management' without it becoming 'a battle of who is right and wrong', and to show respect to associates and coworkers. None of the concerns identified in the probation letter relate to plaintiff's complaints about workplace safety."

DISCUSSION


I. STANDARDS GOVERNING MOTIONS FOR SUMMARY JUDGMENT

The summary judgment procedure is directed at revealing whether there is evidence that requires the fact-weighing procedure of a trial. "'[T]he trial court in ruling on a motion for summary judgment is merely to determine whether such issues of fact exist, and not to decide the merits of the issues themselves.' [Citation.] The trial judge determines whether triable issues of fact exist by reviewing the affidavits and evidence before him or her and the reasonable inferences which may be drawn from those facts." (Morgan v. Fuji Country USA, Inc. (1995) 34 Cal.App.4th 127, 131.) However, a material issue of fact may not be resolved based on inferences if contradicted by other inferences or evidence. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 856.)

"The evidence of the moving party [is] strictly construed, and that of the opponent liberally construed, and any doubts as to the propriety of granting the motion [are to] be resolved in favor of the party opposing the motion." (Branco v. Kearny Moto Park, Inc. (1995) 37 Cal.App.4th 184, 189.) The trial court does not weigh the evidence and inferences, but instead merely determines whether a reasonable trier of fact could find in favor of the party opposing the motion, and must deny the motion when there is some evidence that, if believed, would support judgment in favor of the nonmoving party. (Alexander v. Codemasters Group Limited (2002) 104 Cal.App.4th 129, 139.) Consequently, summary judgment should be granted only when a moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)

Because a motion for summary judgment raises only questions of law, we independently review the parties' supporting and opposing papers and apply the same standard as the trial court to determine whether there exists a triable issue of material fact. (City of San Diego v. U.S. Gypsum Co. (1994) 30 Cal.App.4th 575, 582; Southern Cal. Rapid Transit Dist. v. Superior Court (1994) 30 Cal.App.4th 713, 723.) In practical effect, we assume the role of a trial court and apply the same rules and standards governing a trial court's determination of a motion for summary judgment. (Lopez v. University Partners (1997) 54 Cal.App.4th 1117, 1121-1122.) We liberally construe the evidence in support of the party opposing summary judgment (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142) and assess whether the evidence would, if credited, permit the trier of fact to find in favor of the party opposing summary judgment under the applicable legal standards. (Cf. Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.)

II. APPLICABLE AUTHORITY

In Silo v. CHW Medical Foundation (2002) 27 Cal.4th 1097, 1104, our high court explained the foundations of the public policy-based wrongful discharge cause of action: "'[W]hile an at-will employee may be terminated for no reason, or for an arbitrary or irrational reason, there can be no right to terminate for an unlawful reason or a purpose that contravenes fundamental public policy.' [Citations.] We have held that this public policy exception to the at-will employment rule must be based on policies 'carefully tethered to fundamental policies that are delineated in constitutional or statutory provisions . . . .' [Citation.] This requirement 'grew from our belief that "'public policy' as a concept is notoriously resistant to precise definition, and that courts should venture into this area, if at all, with great care and due deference to the judgment of the legislative branch" in order to avoid judicial policymaking.' [Citation.] It also serves the function of ensuring that employers are on notice concerning the public policies they are charged with violating. 'The employer is bound, at a minimum, to know the fundamental public policies of the state and nation as expressed in their constitutions and statutes . . . .' [Citations.] The public policy that is the basis of this exception must furthermore be '"public" in that it "affects society at large" rather than the individual, must have been articulated at the time of discharge, and must be "'fundamental'" and "'substantial.

"Tort claims for wrongful discharge typically arise when an employer retaliates against an employee for '(1) refusing to violate a statute . . . [,] (2) performing a statutory obligation . . . [,] (3) exercising a statutory right or privilege . . . [, or] (4) reporting an alleged violation of a statute of public importance.'" (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1256, italics added; see also Green v. Raley Engineering Co. (1998) 19 Cal.4th 66, 76; Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1090-1091, overruled in part on other grounds by Green, at p. 80, fn. 6; Stevenson v. Superior Court (1997) 16 Cal.4th 880, 889.) Thus, courts have recognized tortious wrongful discharge claims where an employee establishes he or she was "terminated in retaliation for reporting to his or her employer reasonably suspected illegal conduct by other employees that harms the public as well as the employer. " (Collier v. Superior Court (1991) 228 Cal.App.3d 1117, 1119-1120, italics added.)

III. ANALYSIS

As we have discussed, ante, although the evidence must be viewed in the light most favorable to the plaintiff, the plaintiff's subjective beliefs "do not create a genuine issue of fact." (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433.) Nor can a plaintiff avoid summary judgment by merely providing some evidence suggesting an improper motive for her termination. (Ibid.)Rather, the "plaintiff's evidence must relate to the motivation of the decision makers to prove, by nonspeculative evidence, an actual causal link between prohibited motivation and termination." (Id. at pp. 433-434, italics added.) "[A] plaintiff's 'suspicions of improper motives . . . primarily based on conjecture and speculation' are not sufficient to raise a triable issue of fact to withstand summary judgment." (Kerr v. Rose (1990) 216 Cal.App.3d 1551, 1564.)

Whitehead cites two federal cases, Payne v. Norwest Corp. (9th Cir. 1997) 113 F.3d 1079 and Chuang v. University of California Davis (9th Cir. 2000) 225 F.3d 1115 for the proposition that the court applied a higher burden on her to raise a triable issue of fact than is required by law. However, as federal cases, they are not controlling on California law regarding the burdens applicable to summary judgment motions.

Here, Deseret Industries does not dispute Whitehead met her prima facie burden that she suffered an adverse employment action, and that she engaged in a protected act based upon her complaints about alleged unsafe work conditions. However, Deseret Industries contends that she cannot raise a triable issue of fact that there is a causal nexus between her complaints and her termination. We conclude that Deseret Industries is correct.

As detailed, ante, it is undisputed that Whitehead's first supervisor, Chapman, was so disappointed in her poor interactions with him, her insubordination, her lack of regard for him as his supervisor, her avoidance of his trainings, and her failure to have him review or approve paperwork or schedule changes that he considered terminating her employment in February 2008 (two months after he hired her) and again advocated for her termination in April 2008. It was apparent to her supervisors from the start that she was a "mis-hire" and was not the right fit for serving the associates she was hired to help.

In May 2008 Whitehead began having conflicts with the store manager, Ayers, which continued through her employment. Sweat, Petrick and Turnbow had to repeatedly remind Whitehead to partner with the store manager, that it should not be about who is right or who is wrong, and that the store manager had the final decision concerning associate hiring and disciplining decisions, trainings, and all other store operational issues.

Sweat, who trained Whitehead in May and June of 2008, was concerned about her ability to interact professionally with the store manager and her ability to empathize with and serve the needs of the associates.

When Petrick took over as her supervisor in May 2008, he observed that Whitehead was abrupt and harsh towards associates, quick to recommend discipline, and had difficulty connecting with them. Whitehead even bragged to him that she liked to give the associates "the smack down." Beginning in May 2008 Petrick often had to mediate the personality conflict and power struggle that took place between Whitehead and Ayers, reminding her repeatedly that the store manager had ultimate authority in the store with respect to all operational and human resources issue pertaining to associates, and for her to focus on development activities and improving her relationship with the associates.

Thus, it is undisputed that Whitehead had performance issues long before she voiced her complaints about conditions at the store. An employer may defeat a claim for wrongful termination by demonstrating that it raised concerns about the employee's abilities and performance before the employee engaged in protected activity and the subsequent termination was based upon those performance issues. (Arteaga v. Brinks, Inc. (2008) 163 Cal.App.4th 327, 353.)

Moreover, it is also undisputed that Deseret Industries promptly responded to Whitehead's concerns about conditions at the store. An employer's timely response to an employee's complaint and reasonable efforts to remedy the situation preclude an employee's claim that she was subjected to unlawful retaliation for complaining. (Casenas v. Fujisawa USA, Inc. (1997) 58 Cal.App.4th 101, 118 [employer promptly investigated and addressed employee's harassment claim; employer's proper handling of complaint precluded claim for wrongful constructive termination].)

Deseret Industries addressed every issue Whitehead raised, responding promptly to her concerns about the facility, including conducting a deep cleaning of the associate break room, ordering new furniture; testing, removing mold from, and repairing the staff restroom, and replacing the wall plates on the electrical outlets.

As to the custodial closet, Deseret Industries engaged a vendor, which tested the closet for mold and found the levels low and non-threatening to human health. Deseret Industries requested and received bids for renovation of the custodial closet. Because the cost of the proposed work exceeded the store's operational budget, and given the lack of a safety issue, it was submitted to be paid out of the following fiscal year's budget, and it was completed in August 2010. Immediate preventative work was performed in the custodial closet, including deep cleaning the floor and clearing the drain.

Whitehead asserts several times in her opening brief that Deseret Industries did not remediate the mold or did not clean up the mold conditions due to cost. In part this is based upon her speculation that it could not have been remediated in one day. However, her speculations do not create a triable issue of fact. (LaChapelle v. Toyota Motor Credit Corp. (2002) 102 Cal.App.4th 977, 981 [a party cannot avoid summary judgment by asserting facts based upon speculation and conjecture].) Deseret Industries has presented undisputed evidence that that the mold was tested and remediated. Indeed, Whitehead acknowledged in August 2008 that her concerns were being addressed by Deseret Industries' management. In November 2008 Whitehead expressed her appreciation for "the great improvements in the condition of the building" and admitted that she no longer considered store operations to be an issue.

Whitehead also cannot show a causal nexus between her complaints and her termination because she was terminated almost six months after those complaints were made. The probation letter was given to her nearly four months after she complained. (See Loggins v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102, 1110, fn. 6.) In order to prove such a causal nexus, Whitehead must show that her termination occurred "'"within a relatively short time"'" after her complaints. (Morgan v. Regents of the University of California (2000) 88 Cal.App.4th 52, 69.) We conclude that a gap of six months is not a "relatively short time."

Further, to establish a causal link between protected activity the employee must establish that the decision makers responsible for her termination were aware of, and motivated by, the employee's past complaints. (King v. United Postal Service, Inc., supra, 152 Cal.App.4th at p. 434 [no causal link where the supervisors alleged to have discriminatory intent were not involved in termination decision].)

Here, the decision to place Whitehead on probation and then to terminate her was made by Turnbow, Petrick, McFadden, and McKenna. The only person person she identified as having hostility towards her about her complaints is Ayers. However, it is undisputed that Ayers was not involved in the decision to terminate her employment. He did not have the authority to terminate Whithead and was not asked for input into the decision. Ayers was not informed of Whitehead's termination until after the decision had been made.

The declarations from three former associates and one former staff member Whitehead filed in opposition to the motion for summary judgment also do not create a triable issue of fact. Whitehead asserts this shows Turnbow lied about the reasons for her termination because he claimed that all associates told him they disliked her.

However, Turnbow never made such a claim. Indeed, after his meeting with several associates he noted that a "couple of associates . . . did support Tiffany." Further, Turnbow never claimed that Saunders and Cortez told him they disliked her. Further, there is no evidence that Turnbow ever met with the other two declarants, Mancera and Alvarado.

Whitehead's argument that a memo from Ecobar to Turnbow undermines his credibility is likewise unavailing. While in that memo Escobar stated that he believed that morale in the store was "by and large positive," in that same memo Escobar also states that "Whitehead was unable to keep her personal feeling aside and acted slightly unprofessional." Also, on November 25, Escobar told Turnbow that Whitehead was "cold and too strick [sic] with associates" and that "[Whitehead] has been insubordinate."

The wording of Whitehead's probation letter also does not raise a triable issue of fact. There is no mention anywhere in that letter of her previous complaints concerning store conditions. Rather, the letter focuses on her history of unprofessional and unproductive interactions with the store manager, her voicing of concerns in a manner that it became a battle of who is right and who is wrong, and her lack of respect for coworkers and associates.

The probation letter also does not warn Whitehead against over advocacy for associates' health concerns as she claims in her opening brief. Instead, the letter advises her to avoid "over advocacy for associates with performance issues." (Italics added.) As to the statement regarding her "[i]nterfering in operational decisions where store management has made decisions," there is no mention of mold repairs as Whitehead claims. Rather, this referred to the fact that her supporting operational situations made by management "will be measured by your demonstrated ability to positively support decisions" and that she needed to "work with store management to diffuse disagreements and dissent when you are confronted by it." "Showing a tendency to overstate concerns" means that she should "[e]nsure that when voicing or stating concerns, that [she is] specific" and that she should "not allow [her] approach to become a battle of who is right and wrong."

Whitehead asserts, without citation to the record, that the only "operational issue" she was involved in was the safety issue, and this therefore must have been referring to her safety complaints. Rather, this was referring to the fact that she was responsible for development activities, and Ayers, as store manager, was responsible for operational activities, and reminding her to defer to him as to those decisions.

In a one-paragraph section of her opening brief Whitehead complains that the court "overruled all of [her] objections [to Deseret Industries' evidence] without explanation." However, she fails to provide any authority or evidence to support her contention that this ruling was in error.
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DISPOSITION

The judgment is affirmed. Deseret Industries shall recover its costs on appeal.

NARES, J. WE CONCUR: BENKE, Acting P. J. AARON, J.