Opinion
NOT TO BE PUBLISHED
City & County of San Francisco Super. Ct. No. CGC-08-472789.
Siggins, J.
Richard Moss sued PG&E Corporation, Pacific Gas and Electric Company and two of its employees (collectively PG&E) for wrongful termination and related causes of action. He alleged that PG&E terminated his employment because of his age and physical disability. Moreover, he claimed his termination was in retaliation for his complaints of discrimination and in violation of an implied contract that he would not be terminated without cause. PG&E successfully moved for summary judgment on the grounds that Moss could show neither a discriminatory motive for terminating his employment, a causal connection between his discrimination complaint and his termination, nor a breach of implied contract. The trial court granted summary judgment for PG&E on all of Moss’s claims. Our de novo review confirms the trial court’s assessment of the evidence, and we affirm the judgment.
DISCUSSION
I. Summary Judgment Standards
Summary judgment is proper when there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) We review a ruling granting summary judgment de novo. (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798.) “We accept as true the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences that can be drawn from them. [Citation.] However, to defeat the motion for summary judgment, the plaintiff must show ‘ “specific facts, ” ’ and cannot rely upon the allegations of the pleadings.” (Id. at p. 805.) We review the court’s ruling, not its rationale, and we affirm if it is correct for any reason. (Ibid.)
II. Burden Shifting in Employment Discrimination Cases
The Fair Employment and Housing Act (FEHA) prohibits an employer from discriminating on the basis of an employee’s age or physical disability. (Gov. Code, § 12940.) Because direct evidence of intentional discrimination is rare, California has adopted the three-stage burden-shifting test established by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354; Brundage v. Hahn (1997) 57 Cal.App.4th 228, 236.) First, the plaintiff must establish a prima facie case of discrimination. “While the plaintiff’s prima facie burden is ‘not onerous’ [citation], he must at least show ‘“actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were ‘based on a [prohibited] discriminatory criterion....’ ” ’ ” (Guz, supra, at p. 355.) Generally, this requires the plaintiff to establish a prima facie case that: “(1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action..., and (4) some other circumstance suggests discriminatory motive.” (Ibid.)
If the employee satisfies this burden, a presumption of discrimination arises and the burden shifts to the employer to show that its action was taken for a legitimate, nondiscriminatory reason. If the employer does so, the presumption of discrimination disappears and the employee then must prove the employer’s proffered reason was pretextual, or produce other evidence of discriminatory motive. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at pp. 353, 355-356; Horn v. Cushman & Wakefield Western, Inc., supra, 72 Cal.App.4th at p. 807.) The ultimate burden of persuasion on the issue of discrimination remains with the plaintiff. (Guz, supra, at p. 356.)
III. Application of the Burden Shifting Test to Summary Judgment in FEHA Cases
In a FEHA case, when an employer moves for summary judgment and “presents admissible evidence... that the adverse employment action was based on legitimate, nondiscriminatory factors, the employer will be entitled to summary judgment unless the plaintiff produces admissible evidence which raises a triable issue of fact material to the defendant’s showing.” (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203.) If the employer meets its burden of showing a legitimate reason for its actions, to avoid summary judgment the employee “ ‘must offer substantial evidence that the employer’s stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination.’ ” (Horn v. Cushman & Wakefield Western, Inc., supra, 72 Cal.App.4th at pp. 806-807, quoting Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1004-1005; accord, Le Bourgeois v. Fireplace Manufacturers, Inc. (1998) 68 Cal.App.4th 1049, 1058; Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 154; Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1735.) “[S]ummary judgment for the employer may thus be appropriate where, given the strength of the employer’s showing of innocent reasons, any countervailing circumstantial evidence of discriminatory motive, even if it may technically constitute a prima facie case, is too weak to raise a rational inference that discrimination occurred.” (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 362.)
IV. Application
A. Moss’s Age Discrimination Allegations
Moss was hired as an attorney by PG&E in 1976. Over the next 30 years he received positive performance reviews and received promotions, raises and commendations for his work, but he says that when he reached his late 50’s PG&E harassed and discriminated against him because of his age by offering him early retirement, writing him up for poor performance, and ultimately firing him. Moss also alleges that PG&E harassed, discriminated and retaliated against him because he suffered from sleep apnea. The complaint states claims for age and disability discrimination, harassment and retaliation in violation of the FEHA, wrongful discharge in violation of public policy, breach of employment contract, bad faith, and intentional infliction of emotional distress.
The trial court determined that Moss met his initial burden and established a prima facie case of age discrimination. Although PG&E contests that determination, we see no reason to revisit it. The resolution of this appeal turns instead on the sufficiency of PG&E’s nondiscriminatory justification for Moss’s termination, and whether Moss can show that PG&E’s justification was just a pretext for discrimination.
1.PG&E’s evidence of legitimate reasons for termination
PG&E opposed the age and disability discrimination claims with evidence that it terminated Moss because his performance was below standard for nearly two years, despite both informal and formal efforts to help him improve. In the end, Moss was fired because fewer and fewer clients were willing to work with him. PG&E sought summary judgment on Moss’s breach of contract and bad faith claims on the grounds that Moss was an at-will employee who could not show either the existence of an implied-in-fact employment contract or its breach. PG&E also asserted the intentional infliction of emotional distress claim was preempted by the California Workers’ Compensation Act and that Moss had no evidence of discrimination, harassment or retaliation.
PG&E’s justification for Moss’s termination was based on the following evidence: Moss was an attorney in the environmental section of PG&E’s law department from 1976 until December 31, 2007. Moss was supervised by Barbara Benson from April 2005 until April 2006, because his regular supervisor, John Busterud, was on a military duty leave of absence. At that time, PG&E was implementing a company wide “transformation” process designed to improve company operations. Part of the process focused on institutional knowledge management in order to improve the retention of information within the company and eliminate situations where critical knowledge was reposed solely in one employee. Benson suggested to a “Knowledge Transfer Team” that Moss participate in the process in order to preserve and share his knowledge of the company’s water rights. The team accepted Benson’s proposal and Moss agreed to participate.
Another part of the company’s transformation project was a performance management program that reviewed employees’ performance on the basis of “competencies” and results in meeting specific goals. These “competencies” cover a wide number of parameters such as, e.g., “results orientation, ” “accountability, ” “committed to excellence, ” “honest communication, ” “innovation, ” “values diversity, ” “strategic thinking & alignment, ” “business and financial acumen, ” “leads change, ” and “drives high performance.” PG&E attorneys were given baseline assessments intended to provide them with feedback on their relative strengths and areas for development.
Moss’s baseline assessment in the performance management program was prepared by Janet Loduca, who supervised him from April 2006 until Bosterud’s return from military duty. She asked Moss to submit a self-assessment of his competencies and draft his individual goals for the year. Loduca then met with Moss to further define his goals. Loduca also reviewed two of Moss’s most recent performance reviews and met with PG&E’s chief counsel, Chris Warner, to discuss Moss’s performance. Warner expressed some general concerns regarding Moss’s follow-through on projects and his ability to provide strategic advice. Loduca incorporated Warner’s comments into Moss’s baseline assessment. Loduca prepared Moss’s baseline competency assessment from all of this information. She rated Moss “proficient” for overall competency, but gave him the lowest possible “developmental” rating in six individual competencies. Moss was assessed as one of the lowest rated attorneys in the law department.
In the spring of 2006, Loduca began Moss’s mid-year review. She received mixed feedback from his in-house clients. Some were positive, but others were critical. Diane Ross-Leech reported that she wanted Moss to be more responsive and that he sometimes needed to be reminded to follow up on things. Mary Boland said she was not sure of Moss’s role on the regional habitat conservation planning project, and that while he appeared knowledgeable about the law he did not often offer strategic advice. She also noted that Moss needed to stay awake in meetings. Cliff Gleicher reported that Moss’s feedback and participation in projects was untimely. Tom Wilson passed along comments of others who worked with Moss. One person commented that Moss “seemed to be along for the ride but not really engaged on giving good strategic advice.” Another client commented that people tended to seek advice from other attorneys rather than Moss.
Moss received overall ratings of “proficient” for competencies and “meets” for goals in the 2006 mid-year review, but he had “developmental” scores on several core competencies. On “results orientation, ” Moss was said to be “extremely knowledgeable in many areas but has a tendency to focus on non-essential details, particularly when communicating orally. He would be much more effective if he focused his oral communications on practical, solution-oriented advice. In addition, although [he] delivers good results when he is engaged in a project, his performance is inconsistent. [He] needs to be engaged consistently.” On “accountability, ” Moss “has had some issues with following through on timelines and deadlines. Again, his performance in this area is inconsistent.” On “honest communication, ” the review noted that Moss “has a tendency to fall asleep during meetings, which seriously undermines his effectiveness. He needs to take active steps to stay awake and engaged during meetings.” Loduca concluded that although Moss scored a “proficient” overall rating, he had a number of significant “developmental” areas that needed to be addressed. She recommended that he meet regularly to review and assess his progress in those areas with his supervisor and develop appropriate action items. Loduca attested that she never considered Moss’s age in completing any of his performance assessments.
By August 2006, Busterud had returned from his military duty. He and William Manheim gave Moss his review. Manheim explained to Moss that the company was putting a renewed emphasis on attorney performance under the performance management program, and, since Moss was rated one of the weakest performers in the law department, Manheim strongly warned him that he needed to significantly improve his work by the end of the year. Busterud told Moss that he would meet with him weekly to monitor his progress. Manheim and Loduca also asked Moss to begin preparing a water rights knowledge transfer plan, which was to be managed by Loduca.
Moss frequently asked for extensions to complete his assignments at his weekly meetings with Busterud. Busterud provided Moss a list of specific projects he was to complete before September 1, 2006. None of them were completed by the deadline. Moss did not develop the written plan for the water rights knowledge transfer until April 2007.
Based on his own observations and feedback from clients and colleagues, Busterud concluded that Moss’s performance was unsatisfactory in his 2006 year-end review. That feedback included Gleicher’s report that he was dissatisfied with Moss’s work in a tax settlement case; Ross-Leech’s report that Moss was good at attending meetings, but had no follow-through on projects; Ross-Leech and Boland’s report that they did not invite Moss to agency meetings because he took personal calls and fell asleep during meetings; reports from client David Harnish, Boland and Ross-Leech that Moss did not add value to their teams or take the lead on projects; and statements from Harnish and client Fred Flint that Moss was not as good as two other attorneys on their teams who added more value.
Moss’s overall rating for 2006 was “developmental.” His review for the “Customer Focus” competency commented that “Rick is often late with assignments and his clients believe he doesn’t follow-through on some matters assigned to him.” On “Results Orientation, ” the review said Moss “doesn’t push for results hard enough. He attends meetings and offers his views, but could be much more active in pushing assignments through to conclusion.” On “Accountability, ” it noted that “Rick lets timelines slide and is inconsistent with delivering assignments on a timely basis.” Other negative comments were that “Rick seems to be satisfied with consulting on matters rather than taking the lead. As a result he often makes only a limited contribution to clients’ success” and “Rick continues to fall asleep in meetings and this limits his ability to contribute and communicate effectively.” The review noted that clients were reluctant to have Moss assigned to their projects.
Busterud and law department senior director William Manheim gave Moss his performance review in February 2007, and warned him to show immediate improvement. Moss was given the option of taking an early retirement with full benefits or going on a formal action plan. Although he initially considered the retirement option, in April 2007, Moss opted to go on an action plan.
The formal written action plan was effective April 16, 2007, and provided that Moss’s employment would be terminated unless his performance improved over the next 30 days. Moss was specifically required to complete assignments in a timely manner, focus on the highest priority matters, consult with clients and supervisors to set priorities, meet commitments, contribute to meeting client objectives, stay awake, alert and active in meetings, and take a leadership role in solving client problems. Moss met almost weekly with Busterud to get feedback on his progress and, along with Manheim, Busterud consistently stressed to Moss the importance of accomplishing the water rights knowledge transfer first assigned to him in August 2006. Between April 19 and May 25, Moss provided Busterud with weekly summaries of his work, including his progress on the water rights knowledge transfer.
But during this same time, Loduca reported that, after two attempts, Moss’s outline for the knowledge transfer was still missing several items she had discussed with him. Matt Fogelson, the attorney who was to be trained by Moss, reported that Moss’s efforts were incomplete, sporadic, and unfocused. On June 1, 2007, Loduca reported to Manheim and Busterud that despite her coaching and the specific suggestions she and Fogelson had given him, Moss had still not provided key documents or discussed with Fogelson the water rights issues affecting each watershed.
Around the same time, Gleicher reported that, while Moss was more responsive, Gleicher was “overall disappointed.” Darrell Klingman, a client in environmental services-site remediation, told Busterud that Moss was “not the leader” at the project site. Another client in the same group, Tricia Sullivan, said Moss should “show more initiative on pushing resolution of access agreement.”
On May 24, 2007, Busterud and Manheim told Moss that he failed his performance action plan. Yet the plan was extended to June 30, 2007, to give Moss an opportunity to improve. Busterud continued to meet with him almost weekly to provide feedback during the extended period. Moss was told that his highest priority assignments were completion of the water rights knowledge transfer to Fogelson and preparation of a comprehensive memorandum concerning third party claims at the Kilarc-Cow Creek hydroelectric project.
Moss failed to complete both assignments. On June 1, 2007, Loduca reported that Moss had still not carried out the water rights knowledge transfer or developed a useful plan to do so. Moss’s memorandum on the Kilarc-Cow project was unsatisfactory because it failed to assess either the strengths of the third-party claims or PG&E’s potential exposure to those claims.
Moss’s action plan was extended again to the end of October 2007. Moss was to complete two projects by the end of October. He was to comment on and submit PG&E’s renewable portfolio standard plan, which was to be filed with the California Public Utilities Commission, and submit a follow-up plan to address questions raised by the Commission. Manheim asked Charles Middlekauff, an attorney and director in the law department, to work closely with Moss on these projects. Middlekauff reported that Moss missed the filing deadline and had to seek the Commission’s approval for late filing. He also reported that Moss added little value to the project, and in fact made it more difficult for the clients. Overall, the client was dissatisfied with Moss’s work and expressed concern about him continuing to work on renewable portfolio standard matters.
By mid-2007 it became apparent that Moss’s workload was minimal, and when he was asked to produce copies of his written work product for 2007 in anticipation of his mid-year review, he produced a stack of paper less than an inch thick. In May 2007, Moss asserted for the first time that he was being discriminated against on the basis of age. In June 2007, he informed Manheim he had been diagnosed with sleep apnea and requested as an accommodation that all references to his falling asleep at meetings be removed from his personnel file. Shortly after his diagnosis, Moss was treated for sleep apnea and stopped falling asleep at work. However, his poor performance and complaints from clients and colleagues continued.
In September 2007, Manheim and Busterud gave Moss his 2007 mid-year review. He received the lowest possible overall ratings on both competencies and goals-“developmental” and “does not meet goals.” In explaining Moss’s overall “developmental” rating, Manheim noted that “Rick continues to perform at an unsatisfactory level and has not improved since his 2006 year end review. Among the many noted ‘Developmental’ categories, I am particularly concerned with Rick’s lack of client focus, results orientation and commitment to excellence. I simply cannot count on him to handle legal matters of importance to his clients and the Company.” Complaints from colleagues and clients persisted, and it became difficult to find projects for Moss due to clients who were unwilling to work with him.
On October 29, 2007, Manheim and Busterud recommended to law department vice president and managing director Sanford Hartman that Moss’s employment be terminated with compensation through the end of the year so that he could receive full retirement benefits. Moss was notified of his termination effective December 31, 2007. His responsibilities, which at the time were considered minimal, were divided among other attorneys in the law department and outside counsel. A new attorney was hired in April 2008, and the new attorney had different and broader responsibilities than Moss.
The above evidence is sufficient for PG&E to satisfy its burden of demonstrating that the decision to terminate Moss’s employment was based on legitimate business reasons. In light of this evidence, it was Moss’s burden to present substantial evidence that PG&E’s reasons were pretextual or its actions motivated by discriminatory animus. “ ‘To avoid summary judgment, [appellant] “must do more than establish a prima facie case and deny the credibility of the [defendant’s] witnesses.” [Citation.]’ [He] must produce “specific, substantial evidence of pretext.” [Citation.] [Citation.] We emphasize that an issue of fact can only be created by a conflict of evidence. It is not created by speculation or conjecture.” (Horn v. Cushman & Wakefield Western, Inc., supra, 72 Cal.App.4th at p. 807.) “It is not enough for the employee simply to raise triable issues of fact concerning whether the employer’s reasons for taking the adverse action were sound. What the employee has brought is not an action for general unfairness but for age discrimination. While, given the inherent difficulties in showing discrimination, the burden-shifting system established by the Supreme Court is a useful device to facilitate the adjudication of claims of discrimination, it ultimately, however, does not change what the employee must prove.” (Hersant v. Department of Social Services, supra, 57 Cal.App.4th at pp. 1005.)
We assume arguendo that, as the trial court found, Moss established a prima facie case of age discrimination. The issue, instead, is whether he successfully rebutted PG&E’s showing of a legitimate reason for his termination.
2. Moss’s evidence of pretext or discriminatory animus
Moss failed to produce substantial evidence of pretext or discriminatory animus, and says that PG&E-specifically Busterud and Loduca-were biased against him because they “ignored [his] successes and looked for any opportunity to consider him a failure.” Moss relies on performance reviews conducted before 2006 and praise from his clients to argue he was a strong performer. But the evidence that some of his clients and colleagues were positive about Moss’s performance does not negate the unfavorable reviews from others that were the basis of PG&E’s decision to terminate him. “These contrary assessments of his performance do not impeach the legitimacy of his employer’s expectations. Plaintiff does not raise a material issue of fact on the question of the quality of his work merely by challenging the judgment of his superiors.” (Kephart v. Institute of Gas Technology (7th Cir. 1980) 630 F.2d 1217, 1223) While a plaintiff might create a triable issue of fact through evidence that specifically refutes facts that support the employer’s claim of inadequate performance (see Dey v. Colt Const. & Development Co. (7th Cir.1994) 28 F.3d 1446, 1460), evidence that some of Moss’s clients and colleagues spoke of his work in generally favorable terms does not refute the evidence that others perceived his performance very differently, and is thus insufficient to create a triable issue of fact as to pretext. (Burks v. Wisconsin Dept. of Transp. (7th Cir. 2006) 464 F.3d 744, 752 & fn. 6.) Similarly, the primarily positive performance reviews Moss received through 2004 do not refute PG&E’s evidence that his performance was inadequate during the critical 2006-2007 period. (See Moser v. Indiana Dept. of Corrections (7th. Cir. 2005) 406 F.3d 895, 901; Fortier v. Ameritech Mobile Communications, Inc. (7th Cir.1998) 161 F.3d 1106, 1113.)
Moss’s specific criticisms of his performance reviews also fail to demonstrate “ ‘such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them “unworthy of credence, ” [citation], and hence infer “that the employer did not act for the [the asserted] nondiscriminatory reasons.” ’ ” (Hersant v. Department of Social Services, supra, 57 Cal.App.4th at p. 1005.) Moss challenges the criticisms of his memorandum on the Kilarc-Cow project because PG&E ultimately adopted his recommended course of action. But, as the trial court observed, “[t]he fact that the result happens to be what’s ultimately adopted I would suggest isn’t what’s important; it’s whether the legal work, preparing the client for making the decision has been good.” We agree. The fact that PG&E eventually followed Moss’s recommendation does not contradict his supervisor’s dissatisfaction with the scope and quality of his written legal analysis.
Moss’s assertion that PG&E adopted his recommendation “without further research” is not supported by the record. Moss relies on the following testimony from Fogelson’s deposition: “Q: And so essentially PG&E followed Rick’s big-picture advice as to what tack to take at Kilarc Creek, correct? [¶] A. That’s the path we’re pursuing. [¶] Q: And did you ever do any additional research on abandoning the water rights? [¶] A: Probably. I mean, I don’t recall doing a lot more. Yeah, I probably didn’t do too much more. [¶] Q: Did you ever go out and do any research on the damages question? [¶]... [¶] A: You know, I think that that event sort of overtook that discussion. We sort of had our meeting, which was shortly after this, I think, with these folks. And at that point as I recall we sort of charted a path to try and resolve the issues. And so I think it-I guess it sort of became less important, I think.”
Similarly, the favorable outcome in Moss’s tax settlement case does not create a factual dispute with Gleicher’s reports that Moss reviewed only one of two interrelated settlement documents in the property tax litigation and, because he was unreliable, “made completing [the] litigation more difficult and time consuming for me than I had expected.” While Moss complains the poor reviews regarding his efforts to transfer water rights knowledge to Fogelson are pretextual because the knowledge transfer “was not one of the goals of” his 2007 action plan, the uncontradicted evidence shows that the knowledge transfer was one of his two “highest priority assignments” at that time. Because these, and Moss’s more general claims that PG&E focused unfairly on his failures while ignoring his successes, do not show “implausibilities, inconsistencies, incoherencies, or contradictions” in PG&E’s proffered legitimate reason for terminating Moss, they do not create a genuine issue of triable fact over PG&E’s motive for termination. “While the objective soundness of an employer’s proffered reasons supports their credibility..., the ultimate issue is simply whether the employer acted with a motive to discriminate illegally. Thus, ‘legitimate’ reasons [citation] in this context are reasons that are facially unrelated to prohibited bias, and which, if true, would thus preclude a finding of discrimination. (See, e.g., Kariotis v. Navistar Intern. Transp. Corp. (7th Cir. 1997) 131 F.3d 672, 676 [suggesting that proffered reasons, if ‘nondiscriminatory on their face’ and ‘honestly believed’ by employer, will suffice even if ‘foolish or trivial or baseless’]; McCoy v. WGN Continental Broadcasting Co. (7th Cir. 1992) 957 F.2d 368, 373 [ultimate issue is whether employer ‘honestly believed in the reasons it offers’]; see also Fuentes v. Perskie (3d Cir. 1994) 32 F.3d 759, 765 [issue is discriminatory animus, not whether employer’s decision was ‘wrong or mistaken, ’ or whether employer is ‘wise, shrewd, prudent, or competent’].)” (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 358.)
Next, Moss contends that PG&E misused the “transformation” process as a ruse to displace older attorneys. Here, too, he fails to offer substantial evidence of pretext or discriminatory motive. He relies on a statement contained in a 2006 report by Hildebrandt International that “a demographic study shows that [a] large number of senior lawyers will be approaching retirement age in the next five years. This raises the question about the effectiveness of succession planning within the legal function”; and a concern, voiced by Hartman at a law department transformation committee meeting, about the company’s need to retain its employees’ knowledge, information and expertise as they retired. But there is nothing discriminatory about PG&E’s awareness of its need to ensure the adequate transfer of knowledge and expertise as its senior attorneys approach retirement. The cases Moss cites are inapposite. In each of them there was other evidence of age-based discrimination in addition to succession planning. (See Bevan v. Honeywell, Inc. (8th Cir. 1997) 118 F.3d 603 [statements in human resources memorandum that age was a major consideration in job placement process, comments that plaintiff would have trouble reporting to younger supervisor, and remark about difficulty of “fitting old farts” into the organization]; Finch v. Hercules Inc. (D.Del. 1996) 941 F.Supp. 1395, 1411, 1413 [evidence of company history of considering age in its employment decisions; comment by CEO from which jurors could infer he believed that younger employees cared more and were better equipped to revive company’s corporate health; CEO’s reference to older employees as “tired warriors”; and statistical evidence of disproportionate terminations of older employees]; Kelly v. Stafford Tractor Co. (N.D.Ga. Feb. 19, 2009, No. 1:07-CV-0089-JOF) 2009 U.S. Dist. LEXIS 12456] [direction from upper management to hire younger employees].)
Moss claims Hartman stated that “PG&E was concerned its employees were too old, ” but the record shows he was referring only to the importance of succession planning in light of anticipated retirements within the legal department. The Benson deposition testimony on which Moss relies is unambiguous on this point. “Q: And did Sandy [Hartman] speak at those [transformation committee] meetings? [¶] A: Yes. [¶] Q: And what did he say at the meetings? [¶] A: I can’t recall. [¶] Q: Did he express a concern that the population was older? [¶] A: Yes. [¶] Q: And what did he say about the population being older? [¶] A: That it’s an issue the law department’s facing and the company’s facing. [¶] Q: Anything else he said about-did he talk about the average age of the lawyers in the law department; do you know? [¶] A: No, because I can’t-I don’t recall that because I don’t know what the average age is. But they presented a list, and I don’t know where it came from, of-they wouldn’t put ages next to people, but it was, here are the people who are of retirement age or will be of retirement age in the near future. [¶]... [¶] Q: Do you recall what Sandy Hartman said if anything about the people that were of retirement age? [¶]... A: Okay. There was a concern that people had knowledge and-knowledge, information, expertise, and that if they left, how-where would that knowledge and expertise come from. And so the concern was that to make sure that the knowledge and expertise wasn’t lost.”
Moss argues that pressure applied on him to take early retirement in lieu of discharge is also evidence of age discrimination. We disagree. Moss was on notice from August 2006 that his performance was unsatisfactory. In February 2007, after a successive unfavorable review, PG&E offered him early retirement with full benefits. Instead, Moss declined the offer and agreed to go on an “action plan.” Without any direct evidence of discriminatory animus, suggesting retirement to a poorly performing employee is not a reasonable basis for inferring age discrimination. (See Ziegler v. Beverly Enterprises-Minnesota, Inc. (8th Cir. 1998) 133 F.3d 671, 676; Kaniff v. Allstate Ins. Co. (7th Cir.1997) 121 F.3d 258, 263.) In each of the cases Moss relies on there was additional evidence that supported an inference of age discrimination. (Holzman v. Jaymar-Ruby, Inc. (7th Cir. 1990) 916 F.2d 1298 [comparative evidence that a firm treated an older employee less favorably than similarly situated younger employees]; Karlen v. City Colleges of Chicago (7th Cir. 1988) 837 F.2d 314 ([employer used age, rather than cost, years of service or salary, as the basis for varying retirement benefits].) There is no such additional evidence here.
Citing Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243 and Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, Moss asserts PG&E conducted a biased investigation into his age discrimination complaint, and the skewed investigation is evidence of age discrimination. Neither the record nor the law bears him out. In Nazir, the employer, in violation of its own rules, appointed an investigator who had an “axe to grind” with the employee under investigation. The court pointed out that such an investigation “can itself be evidence of pretext” because it could “ ‘exploit[ ] a disciplinary process predisposed to confirm all charges.’ ” (Nazir, supra, at p. 277.) In Reeves, the report contained numerous indicia from which a jury could find it was biased in favor of the employer, including the investigator’s failure to investigate exculpatory evidence of any kind while accepting the employer’s version of the incident under investigation at face value. (Reeves, supra, at pp. 120-121.)
In contrast to both Nazir and Reeves, nothing in the record here suggests that investigator Keith Jarus was similarly biased or involved in a sham investigation with a preordained conclusion. Jarus had many years of experience as an equal employment opportunity specialist with various companies and had investigated 30 to 40 claims of discrimination and harassment while employed at PG&E. Moss relies on the testimony of his expert in management practices that Jarus had inadequate experience to complete an effective investigation, that PG&E should not have used an investigator who was subordinate in rank to the subjects of the investigation, that Jarus’s documentation was not adequate, and that Jarus should not have had contact with PG&E’s employment counsel. None of these criticisms support an inference that PG&E’s stated reasons for terminating Moss were pretextual or that termination was motivated on the basis of Moss’s age.
Finally, Moss argues that his termination was part of a pattern and practice of discrimination “in that numerous other older employees were forced to ‘retire’ in order to avoid being terminated or were otherwise terminated because of their age.” The trial court properly excluded Moss’s anecdotal evidence of past discrimination against other employees on numerous grounds including that it was irrelevant, hearsay, conclusory, not within the declarants’ personal knowledge, without adequate foundation and speculative. It also properly excluded a spreadsheet purporting to show the ages of PG&E attorneys on the grounds, inter alia, the document was unauthenticated, conclusory, hearsay and irrelevant because the raw statistics lacked analysis, had little predictive value, did not show the relevant labor and applicant pools, and did not show how similarly situated persons outside the protected group were treated. Although Moss cites Obrey v. Johnson (9th Cir. 2005) 400 F.3d 691 to argue that statistical evidence is admissible to show a general discriminatory pattern in an employer’s personnel practices, Obrey addresses the admissibility of a statistical analysis of promotion data. The Obrey court specifically noted that the indicia for admissibility of statistical studies under the federal rule include: “(1) whether the ‘scientific knowledge [underlying the statistical methodology]... can be (and has been) tested’; (2) whether ‘the theory or technique has been subjected to peer review and publication’; (3) ‘the known or potential rate of error’; and (4) ‘general acceptance.’ ” (Id. at p. 696.) Here, Moss did not attempt to introduce any sort of statistical analysis of the demographic data he obtained from PG&E, and he has failed to demonstrate the relevance of the raw, unanalyzed data. Obrey, therefore, does not support his argument.
Moreover, while the Obrey court found the statistical data offered by the plaintiff in that case was admissible and relevant, it took pains to note that such evidence, without more, is typically insufficient to support a claim of discrimination. (Obrey v. Johnson, supra, 400 F.3d at pp. 696-697.)
Our independent review of the record leads us to agree with the trial court’s determination that Moss did not produce substantial evidence that PG&E acted for false, pretextual or discriminatory reasons when it terminated his employment. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at pp. 358, 361.) Accordingly, the trial court properly granted summary judgment on Moss’s age discrimination claim.
B. Disability Discrimination
Moss contends PG&E discriminated against him on the basis of a disability, his sleep apnea, in violation of the FEHA. Unlike his claim for age discrimination, the trial court found that Moss’s disability discrimination allegations failed to state a prima facie claim because he did not show that his discharge was due to his disability. We agree.
“A prima facie case for discrimination ‘on grounds of physical disability under the FEHA requires plaintiff to show: (1) he suffers from a disability; (2) he is otherwise qualified to do his job; and, (3) he was subjected to adverse employment action because of his disability.’ ” (Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 886.) Moss failed to produce evidence of the third of these elements. It is undisputed that none of the individuals involved in the decision to terminate his employment made any negative comments about his disability, and there is no other evidence of discriminatory bias on their part. It is also undisputed that Moss received negative performance reviews that culminated in his termination and was on a formal action plan before he first told anyone at PG&E about his disability. Moreover, his poor performance reviews continued after he was treated for sleep apnea and was no longer falling asleep at work.
The other evidence Moss cites in support of this claim does not make out a prima facie case of disability discrimination. Although Manheim mentioned Moss’s history of falling asleep in meetings in his memorandum to Hartman recommending Moss’s termination, the context of that reference was to provide the historical background. A reading of the memorandum in its entirety makes clear that Moss’s sleep apnea was not a reason underlying his termination. Moss’s contention that “Hartman admitted that Moss falling asleep in meetings played a role in his decision to terminate Moss” distorts the record. The deposition testimony he relies upon is as follows: “Q: Do you know if Rick Moss was terminated because he fell asleep in meetings? [¶] A: Rick was terminated for the reasons that are set forth in a whole lot of documents involving his performance. [¶] Q: Was one of those reasons that he fell asleep in meetings as stated in the Manheim memo that was written on October 29th, 2007? [¶] A: Well, I do know that it was awkward, it is awkward when a lawyer falls asleep in a meeting, and that, to the extent that the business people expect a lawyer to be awake, if the lawyer’s not and falls asleep, it would be unacceptable.” This evidence does not raise a factual question that Moss’s falling asleep in meetings could have been one of the reasons for his termination.
C. Retaliation
It is unlawful under the FEHA “[f]or any employer... to discharge, expel or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has... filed a complaint, testified, or assisted in any proceeding under this part.” (Gov. Code, § 12940, subd. (h).) Moss alleged that PG&E fired him in retaliation for his complaint of age and disability discrimination. We apply the same burden shifting analysis to this claim as to Moss’s discrimination claims. (Stegall v. Citadel Broadcasting Co. (9th Cir. 2003) 350 F.3d 1061, 1065.) Accordingly, if Moss makes out a prima facie case of retaliation, the burden shifts to PG&E to articulate a legitimate, nondiscriminatory reason for his termination, and, if PG&E meets its burden, then Moss must demonstrate that PG&E’s reasons for terminating him were merely pretextual. (Ibid.) But, as our preceding discussion of Moss’s discrimination claims confirms, PG&E demonstrated a legitimate reason for its employment action and Moss was unable to proffer sufficient evidence of pretext to establish the existence of a triable issue of fact. Moss’s reliance on the fact that he was terminated just six months after he complained of discrimination in May 2007 is insufficient to establish pretext, particularly because he received negative reviews and was placed on a formal written action plan in 2006, the year preceding his complaint. (See Arteaga v. Brink’s, Inc (2008) 163 Cal.App.4th 327, 353 [“temporal proximity alone is not sufficient to raise a triable issue as to pretext once the employer has offered evidence of a legitimate, nondiscriminatory reason for the termination”].) Therefore, assuming for purposes of this discussion that Moss established a prima facie case of retaliation, summary judgment was properly entered as to this claim.
To be clear, we do not conclude that Moss established a prima facie claim.
V. Breach of Contract
Moss contends the court erred in granting summary judgment on his claim for breach of an implied contract that PG&E would not terminate him without good cause. Although the existence of an implied-in-fact contract requiring good cause for termination is generally a question for the trier of fact, the issue may be decided on summary judgment as a matter of law if only one reasonable conclusion can be drawn from the undisputed facts. (Kovatch v. California Casualty Management Co. (1998) 65 Cal.App.4th 1256, 1275, disapproved on another point in Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853, fn. 19.) This is such a case.
“Labor Code section 2922 provides in part that ‘[a]n employment, having no specified term, may be terminated at the will of either party.’ That statute ‘establishes a presumption of at-will employment if the parties have made no express oral or written agreement specifying the length of employment or the grounds for termination.’ [Citation.] The at-will presumption may be overcome by evidence that the employer and employee impliedly agreed to termination only for cause. Factors creating such an implied agreement include ‘ “the personnel policies or practices of the employer, the employee’s longevity of service, actions or communications by the employer reflecting assurances of continued employment, and the practices of the industry in which the employee is engaged.” ’ ” (Camp v. Jeffer, Mangels, Butler & Marmaro (1995) 35 Cal.App.4th 620, 629.)
To prove his alleged implied-in-fact contract, Moss bore the burden of overcoming the at-will presumption with evidence that PG&E impliedly agreed to terminate him only for cause. (Camp v. Jeffer, Mangels, Butler & Marmaro, supra, 35 Cal.App.4th at p. 629; Alexander v. Nextel Communications, Inc. (1997) 52 Cal.App.4th 1376, 1380.) He did not satisfy that burden. Moss relies primarily on his long tenure with the company and, up until 2006, his history of favorable performance reviews, commendations and raises. But “an employee’s mere passage of time in the employer’s service, even where marked with tangible indicia that the employer approves the employee’s work, cannot alone form an implied-in-fact contract that the employee is no longer at will. Absent other evidence of the employer’s intent, longevity, raises and promotions are their own rewards for the employee’s continuing valued service; they do not, in and of themselves, additionally constitute a contractual guarantee of future employment security. A rule granting such contract rights on the basis of successful longevity alone would discourage the retention and promotion of employees.” (Guz v. Bechtel National Inc., supra, 24 Cal.4th at pp. 341-342; see also Miller v. Pepsi-Cola Bottling Co. (1989) 210 Cal.App.3d 1554, 1559.)
In addition to his tenure at PG&E before 2006, Moss relies on statements he claims were made by attorneys John Gibson and James Kaylor in his job interviews with PG&E in 1976. Moss claims both Kaylor and Gibson told him that most attorneys who came to PG&E stayed there for their entire careers, and that one would remain employed as long as one performed. These general statements are too vague and nonspecific to overcome the presumption of at-will employment. (See Kovatch v. California Casualty Management Co., supra, 65 Cal.App.4th at p. 1276; compare Stillwell v. The Salvation Army (2008) 167 Cal.App.4th 360, 382 [explicit promises employee could work until he was 70 or as long as he wanted].) Moreover, there is no evidence that Kaylor or Gibson had the authority, actual or ostensible, to offer anything other than at-will employment. (Mannion v. Campbell Soup Co. (1966) 243 Cal.App.2d 317, 319-320.) Moss’s reliance on Kaylor’s comment in a letter confirming Moss’s job offer is misplaced. Kaylor wrote “I feel confident that both you and PG&E will find your career here mutually rewarding.” This is not evidence that the position was terminable only for cause. If it were, any such generic welcoming remarks by an employer voicing positive expectations that a new employee would enjoy a rewarding career would destroy the presumption of at-will employment. That is not the law. Moss’s proffered evidence was insufficient to overcome the presumption of at-will employment and the court properly granted summary judgment on breach of an implied contract claim.
Moss also relies on the declarations of three former PG&E employees-Peter Griffith, Nick Miniello, and Gary Marmarou-who attested that they understood that they would not be terminated without good cause. The court properly sustained defense objections that these statements were, inter alia, hearsay, conclusory, beyond the declarants’ knowledge, improper opinion, speculative and lacking foundation.
VI. Other Claims
We do not independently address Moss’s claims for intentional infliction of emotional distress, violation of public policy, and punitive damages because, as the trial court concluded, to the extent they are not preempted by the California Workers’ Compensation Act these claims are based on the same alleged discrimination as the FEHA claims and, consequently, suffer the same lack of evidentiary support.
DISPOSITION
The judgment is affirmed.
We concur: Pollak, Acting P.J., Jenkins, J.