Opinion
H041670
01-30-2018
AURORA SHASBY, Plaintiff and Appellant, v. AMALFI SEMICONDUCTOR, INC., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 113CV251465)
Aurora Shasby (age 59), a five-year employee at Amalfi Semiconductor, Inc. (Amalfi, or Company), was terminated in April 2011. She sued Amalfi for age discrimination under the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.; the FEHA). The court granted Amalfi's motion for summary judgment, and Shasby appeals from the judgment entered on that order.
Shasby argues on appeal that although Amalfi claimed her termination was the result of her position being eliminated due to a reduction in force, this purported reason was a pretext: The true reason she was terminated was that the Company wanted to replace her with a newly hired 33-year-old woman. Shasby contends that she presented a triable issue of fact that she was terminated because of her age and that therefore the court erred in granting Amalfi's summary judgment motion.
Our de novo review of the trial court's order requires us to answer these principal questions: (1) Did Shasby present a prima facie case of age discrimination; (2) if she did make this showing, did Amalfi in its summary judgment motion show, facially, a nondiscriminatory basis for its action that rebutted Shasby's prima facie case; and (3) assuming Amalfi met this burden of producing evidence, did Shasby present evidence supporting a rational inference that could be made by a reasonable trier of fact that intentional discrimination was the true cause of her termination? We conclude that Shasby did not present a prima facie case of discrimination. But assuming she did make such a prima facie showing, Amalfi met its burden of showing a facial nondiscriminatory basis for its action, and Shasby failed to present evidence upon which it could be rationally inferred that the Company's motive for her termination was discriminatory. Accordingly, we will affirm the judgment.
I. FACTUAL BACKGROUND
Additional facts presented by Shasby in her opposition to the summary judgment motion are contained in the discussion section, post.
A. Shasby's Hiring and Job Performance
Shasby was hired by Amalfi in April 2006 to work as its financial administrator. She received a Bachelor of Science degree in management accounting from Philippines School of Business Administration in 1973. Since moving to the United States in 1974, Shasby has taken no accounting courses. She is not a Certified Public Accountant (CPA), has never taken the CPA examination, and by her own admission, does not have the knowledge or experience of a CPA. Before coming to work at Amalfi, Shasby worked in accounting positions at other businesses for approximately 27 years.
At the time of Shasby's hiring, Amalfi was a startup research and development (R&D) company with 30 to 40 employees. It did not commence its manufacturing and sales activity until 2009. This evolution in the Company's business resulted in a change in Shasby's job duties, including her becoming responsible for month-end journal entries for inventory. By the time Shasby left Amalfi in 2011, the Company had grown to approximately 110 employees.
Shasby's work at Amalfi was divided between performing administrative duties, such as buying food for the office and occasionally answering phones (approximately 10%) and accounting functions (approximately 90%). Her accounting job duties consisted of bank reconciliations, booking fixed assets and depreciation, cash management, accounts payable (until 2009), accounts receivable (beginning in 2010), financial reporting, departmental expense tracking, recording inventory transactions (beginning in 2009), performing month-end close duties, and payment of sales and use taxes.
There were a number of functions of accounting work that Shasby had not considered part of her job duties as financial administrator. She believed that such duties were in the purview of the Company's controller. Among these excluded functions were (1) creating inventory or warranty reserves; (2) setting up a sales return reserve or waterfall; (3) determining which fixed assets should be maintained on Amalfi's books; (4) performing accounting research; (5) consulting Generally Accepted Accounting Principles (GAAP) or the guidelines of the Financial Accounting Standards Board (FASB); (6) footnoting financial statements; and (7) working directly with the Company's auditors.
During her employment with Amalfi, Shasby received no unsatisfactory performance reviews, with the least favorable review being " 'fully satisfactory.' " In March 2009 and March 2010, she received performance reviews rating her work as "[e]xceeds [e]xpectations." The March 2010 review listed nothing under the heading "Areas of Improvement." Amalfi rated Shasby's performance in April 2011, shortly before her termination, as "fully satisfactory." She received salary raises in March 2008 and March 2010. After her termination, Shasby received favorable letters of recommendation from Joe Whitty, Brenda Tierney (Amalfi's human resources manager), and James Finch (former Amalfi president and chief executive officer).
There was a significant amount of evidence presented in connection with the summary judgment motion concerning Shasby's job performance at Amalfi. In its moving papers, Amalfi submitted a considerable amount of deposition testimony from the controller, Joe Whitty (Shasby's supervisor), concerning a number of tasks that Shasby did not perform correctly or to Whitty's satisfaction. Shasby responded to these allegations in her opposition. Whitty also testified that Shasby performed her duties as financial administrator satisfactorily, and that his description of the tasks Shasby did not perform correctly led him to conclude that her skill set was limited and "[s]he could not perform above a financial administrator position." This evidence concerning Shasby's alleged errors made in her work—while perhaps germane to Amalfi's assertion that it needed to hire an accounting manager who could perform tasks that Shasby could not—is not otherwise relevant to the disposition of the summary judgment motion. We therefore do not detail it here.
B. Amalfi's Finance Department
Greg Hildebrand was hired by Amalfi in February 2010 as its first full-time chief financial officer (CFO), whereupon he became Shasby's immediate supervisor. He was 39 when he was hired. Amalfi, through Hildebrand, hired Whitty as its first full-time controller in July 2010, and Whitty then became Shasby's supervisor. Whitty was 33 when he was hired.
C. Hiring of Maggie Lin as Accounting Manager
Hildebrand and Whitty agreed shortly after the latter's hiring that Amalfi needed to hire a person to fill a new position of accounting manager who had CPA credentials. Amalfi needed such a person, according to Whitty, "to account for inventory, manufacturing and sales, help make the company's accounting more professionally documented for potential investors, and, in all major respects, make sure that Amalfi's accounting practices and procedures were accurate and compliant with U.S. and International [GAAP]." Whitty believed in early 2011, when he was preparing for Amalfi to be audited, that the Company "needed someone with a different skill set [than Shasby's] to manage the books." He had concluded that Shasby "could not perform above a financial administrator position."
Hildebrand recommended Maggie Lin to Whitty as a candidate for the accounting manager position. Hildebrand had previously worked with Lin elsewhere, and she had been working for another company as accounting manager. Lin held a Bachelor's of Science Degree, a Master of Business Administration Degree (MBA), and a California CPA license (obtained in 2010). She had prior experience working for the international accounting firms of KPMG in China and Deloitte in San Francisco. At the time she was hired by Amalfi, Lin had approximately nine years of accounting work experience. Additionally, Lin spoke Mandarin; according Whitty, this skill was important because a majority of Amalfi's customers and suppliers were Mandarin-speaking, and Amalfi was in the process of establishing a Shanghai operation which needed office administration and accounting work.
Amalfi hired Lin for the accounting manager position on May 4, 2011. She was 33 at the time. Amalfi hired Lin without advertising for the position, reviewing resumes of other applicants, or interviewing other applicants. Lin received a higher annual salary ($92,000) than Shasby earned at the time ($83,200). Whitty was Lin's supervisor.
Lin performed a number of tasks that Shasby had not previously performed. These additional tasks included (1) researching technical accounting issues; (2) drafting the Company's financial statements with footnotes; (3) working directly with auditors on a daily basis in connection with the audit of the Company's financial statements; (4) ensuring that Amalfi's practices were in accordance with United States and international GAAP; (5) creating written accounting practices and procedures for the Company under the guidelines of the FASB; (6) quarterly testing of revenue transactions under the FASB guidelines; (7) determining proper reserves for such items as warranty work and product returns; (8) evaluating whether fixed assets were properly carried on the Company's books; (9) setting up the Company's Shanghai subsidiary, including retaining consultants in China to work with the Chinese government, locating office space and communicating overseas concerning construction of the office space; (10) working with international accounting service providers; and (11) managing administrative and accounting aspects of Amalfi's operations in Singapore and Shanghai. Lin spent about 30% of her time on the last function, for which she utilized her Mandarin language skills. The majority of Lin's job involved performing duties different from those Shasby had performed as financial administrator. After Lin's hiring, many of the duties previously performed by Whitty were assigned to Lin, which allowed Whitty to spend much of his time working on the search for outside capital.
D. Termination of Shasby
Shasby was terminated by Amalfi on May 20, 2011. Shasby was told at the time by Whitty and Tierney that she was being discharged because her position was being eliminated due to a reduction in force. Shasby was 59 years old at the time of her discharge.
When Whitty concluded initially that Amalfi needed an accounting manager, it was not clear (he declared) whether the Company would retain Shasby as financial administrator as well. Later, in May 2011, due to profitability concerns, Amalfi eliminated several positions, including the financial administrator position.
Amalfi was sold in or about November 2012. Persons in its finance department, including Whitty and Lin, worked under three-month transition contracts until February 2013, at which time the accounting function of the Company was moved to North Carolina.
II. PROCEDURAL BACKGROUND
A. Complaint
Shasby filed suit against Amalfi on May 14, 2013, alleging one cause of action for age discrimination under the FEHA. She alleged that she had commenced employment as financial administrator with Amalfi on or about April 3, 2006. She was hired as the first member of the Company's accounting team. "Shasby was responsible for developing and implementing accounting processes, customer billing and collections, vendor purchases and payments, payroll, sales tax reporting, and associated general ledger entries in Defendant Amalfi's accounting software." Her work was at all times satisfactory, and Amalfi consistently gave her favorable performance reviews throughout her term of employment. Shasby received several promotions and performance-based raises. She never received any "significant criticism of her work" from Amalfi.
The complaint was filed initially in Alameda County Superior Court. Amalfi's motion for change of venue was granted, and the matter was transferred to Santa Clara County Superior Court. Shasby also sued an entity, "Tri[n]et HR Corporation." In June 2014, at Shasby's request, the court dismissed the complaint with prejudice as to that entity defendant.
In describing the allegations of the complaint, we will omit the phrase "Shasby alleged" in this and the following paragraph to avoid redundancy.
In April 2011, Amalfi advised Shasby it was hiring an accounting manager to whom Shasby would report. Shasby was advised in an email from Amalfi that this hiring would not result in any change to her job status. She was not afforded the opportunity to interview for the position. Amalfi hired the accounting manager—who was approximately 35 years old—on or about May 4, 2011. Shasby trained the new hire for approximately 16 days. On or about May 20, 2011, Amalfi terminated Shasby's employment, asserting as its reason that her position was being eliminated. The newly hired accounting manager assumed the responsibilities of Shasby, and the accounting manager position "was essentially the same as Ms. Shasby's, even though the job title was different." Shasby alleged that the job descriptions for the financial administrator and accounting manager positions were "almost identical." She alleged further that the purported reason given by Amalfi for discharging Shasby—the elimination of her position—was pretextual, and the true motivation was discriminatory termination based upon Shasby's age.
B. Summary Judgment
In May 2014, Amalfi moved for summary judgment, contending there was no triable issue of fact concerning Shasby's age discrimination claim. The Company argued—applying the three-part McDonnell Douglas test for discrimination cases that we discuss in detail, post—that (1) Shasby could not present a prima facie discrimination case because she could not show that a younger person (Lin) was hired or retained to perform the same job that Shasby had performed; (2) assuming arguendo Shasby made a prima facie showing, Amalfi articulated in its motion a legitimate nondiscriminatory reason for its conduct, i.e., it needed and hired someone with more accounting expertise, Lin, who, as accounting manager, performed many technical duties that were not part of Shasby's job, and thereafter eliminated Shasby's financial administrator position; and (3) Shasby could not present evidence to show that, notwithstanding Amalfi's claimed nondiscriminatory reason, its explanation was a pretext to mask age discrimination.
See McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792.
Shasby opposed the motion. She argued, inter alia, that she "easily [met] her prima facie burden" by showing that she was nearly 60 when she was discharged, had performed her job duties very well, "she was replaced by an employee almost half her age," and Amalfi admittedly had a need for the continued performance of Shasby's job duties. She contended further that even if Amalfi articulated a nondiscriminatory reasons for its actions, they were pretextual, based upon inconsistencies in its claim that there was an "alleged reduction in force."
The court granted summary judgment on August 19, 2014, concluding that there were no triable issues of material fact. The court found that (1) Amalfi had "demonstrat[ed] that it had a legitimate, nondiscriminatory reason for Plaintiff's termination—a reduction in force"; and (2) Shasby had failed to present evidence of "a triable issue that Amalfi's proffered reason for her termination [was] false or a pretext for prohibited age discrimination." It held further that even if Shasby's evidence "raise[d] a suspicion that Amalfi's stated reason for her termination [was] untruthful, . . . [Shasby] fail[ed] to present evidence [to] support[] a rational inference that intentional discrimination on the basis of her age was the true cause of her termination." A judgment was entered in favor of Amalfi. Shasby filed a timely appeal.
III. DISCUSSION
A. Summary Judgment and Standard of Review
"The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) As such, the summary judgment statute, Code of Civil Procedure section 437c, "provides a particularly suitable means to test the sufficiency of the plaintiff's prima facie case and/or of the defendant's [defense]." (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203.)
The moving party "bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law." (Aguilar, supra, 25 Cal.4th at p. 850, fn. omitted.) A defendant moving for summary judgment must " 'show[ ] that one or more elements of the cause of action . . . cannot be established' by the plaintiff." (Id. at p. 853, quoting Code Civ. Proc., § 437c, subd. (o)(2).) A defendant meets its burden by presenting affirmative evidence that negates an essential element of the plaintiff's claim. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 (Guz).) Alternatively, a defendant meets its burden by submitting evidence "that the plaintiff does not possess, and cannot reasonably obtain, needed evidence" supporting an essential element of its claim. (Aguilar, at p. 855; see also Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 780.)
Since summary judgment motions involve pure questions of law, we review independently the granting of summary judgment to ascertain whether there is a triable issue of material fact justifying the reinstatement of the action. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142 (Wiener); Chavez v. Carpenter (2001) 91 Cal.App.4th 1433, 1438.) In doing so, we "consider[] all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports. [Citation.]" (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.) We need not defer to the trial court and are not bound by the reasons in its summary judgment ruling; we review the ruling of the trial court, not its rationale. (Kids' Universe v. In2Labs (2002) 95 Cal.App.4th 870, 878 (Kids' Universe).)
B. Employment Discrimination Claims and Summary Judgment
Under the FEHA, it is unlawful "[f]or an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation of any person, to refuse to hire or employ the person . . . ." (Gov. Code, § 12940, subd. (a).) "California has adopted the three-stage burden-shifting test established by the United States Supreme Court for trying claims of discrimination." (Guz, supra, 24 Cal.4th at p. 354.) This test—commonly referred to as the McDonnell Douglas test—"reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially. Thus, by successive steps of increasingly narrow focus, the test allows discrimination to be inferred from facts that create a reasonable likelihood of bias and are not satisfactorily explained." (Ibid.)
"Because of the similarity between state and federal employment discrimination laws, California courts look to pertinent federal precedent when applying our own statutes. [Citation.]" (Guz, supra, 24 Cal.4th at p. 354.)
The three-stage McDonnell Douglas test commences with the plaintiff presenting, as his or her initial burden in order to weed out meritless claims, a prima facie case of discrimination. (Guz, supra, at 24 Cal.4th at p. 354.) "[T]he plaintiff must provide evidence that (1) [she] was a member of a protected class, (2) [she] was qualified for the position [she] sought or was performing competently in the position [she] held, (3) [she] suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive. [Citations.]" (Id. at p. 355.) As a panel of this court (relying largely upon Guz) has explained: "A satisfactory showing to this effect gives rise to a presumption of discrimination which, if unanswered by the employer, is mandatory—it requires judgment for the plaintiff. [Citation.] However the employer may dispel the presumption merely by articulating a legitimate, nondiscriminatory reason for the challenged action. [Citation.] At that point the presumption disappears. [Citation.] Indeed, when the employer proffers a facially sufficient lawful reason for the challenged action, the entire McDonnell Douglas framework ceases to have any bearing on the case, and the question becomes whether the plaintiff has shown, or can show, that the challenged action resulted in fact from discriminatory animus rather than other causes. [Citations.]" (Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 112 (Reeves).)
Because the McDonnell Douglas test was developed for application to trial proceedings, there have been conflicting views as to its application to an employer's motion for summary judgment in a discrimination case. (See Guz, supra, 24 Cal.4th at p. 358.) The Supreme Court in Guz—an age discrimination case—did not decide whether, in order to survive the employer's summary judgment motion, it remains the plaintiff-employee's burden of presenting initially a prima facie case of discrimination under the first step of the McDonnell Douglas test. (Id. at pp. 357, 360.) Rather, it enunciated a procedural construct to resolve the employer's motion where the employer does "not stand mute, relying solely on the premise that [the plaintiff] failed to demonstrate a prima facie case of age discrimination," but, rather, presents "competent admissible evidence [citations] of its reasons, unrelated to age bias" for the plaintiff's termination. (Ibid.) Once the moving defendant presents evidence that its reasons for termination (or other adverse action) were legitimate, nondiscriminatory ones—thereby showing the FEHA claim to lack merit—the plaintiff is required "to show there was nonetheless a triable issue that decisions leading to [the employer's adverse action] were actually made on the prohibited basis of his [or her] age. [Citations.]" (Id. at p. 360, citing Code Civ. Proc., § 437c, subd. (o)(2).)
The Supreme Court in Guz explained that, once the employer in its moving papers has rebutted the presumption of discrimination with admissible evidence of a nondiscriminatory reason for the adverse action that is "creditable on its face" (Guz, supra, 24 Cal.4th at p. 357), summary judgment is proper unless the evidence as a whole "places [the employer's] showing of innocent motive in material dispute by raising a triable issue, i.e., a permissible inference, that, in fact, [it] acted for discriminatory purposes. [Citation.]" (Id. at p. 362; see also Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 715 (Mamou) [central question is "whether the evidence as a whole supports a reasoned inference that the challenged action was the product of discriminatory animus"].) "[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, supra, at p. 362.) And the high court in Guz cautioned that evidence that the employer may have lied about its reasons for terminating the employee cannot, by itself, give rise to an inference of intentional discrimination because "[t]he pertinent statutes do not prohibit lying, they prohibit discrimination. [Citation.]" (Id. at p. 361.) But the fact that the employer's stated termination reason lacks credibility "may 'considerably assist' a circumstantial case of discrimination, because it suggests the employer had cause to hide its true reasons. [Citation.]" (Ibid.)
Following Guz, we present below our three-part analysis of the propriety of granting summary judgment in this case. First, we ascertain whether Shasby presented a prima facie case of age discrimination. Finding that she did not meet the fourth element of her claim—that she was replaced by a significantly younger worker—we conclude Shasby did not make a prima facie showing and that summary judgment was proper. Second—and assuming Shasby did make a prima facie showing—we determine that Amalfi made a creditable showing that its reasons for discharging Shasby were legitimate, nondiscriminatory ones. Third, we evaluate whether Shasby adequately rebutted the Company's nondiscriminatory reason with evidence that raised a rational inference that it intentionally discriminated against Shasby. We conclude that Shasby did not present such rebuttal evidence.
C. No Prima Facie Case of Discrimination
Because "the pleadings set the boundaries of the issues to be resolved at summary judgment [citations]" (Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 648), we first outline the essential allegations of Shasby's complaint. She alleged that the Company hired a younger person as accounting manager on May 4, 2011, and that after she was trained by Shasby for 16 days, Amalfi terminated Shasby. She alleged further that afterwards, "the newly hired [a]ccounting [m]anager assumed Ms. Shasby's job duties" and the accounting manager position "was essentially the same as Ms. Shasby's, even though the job title was different." Therefore, in the context of this case, a reasonable inference of age discrimination, i.e., a prima facie case, results when the plaintiff-employee seeking to establish a claim under the FEHA for age discrimination makes a prima facie showing that he or she "(1) is over the age of 40; (2) suffered an adverse employment action; (3) was performing satisfactorily at the time of the adverse action; and (4) suffered the adverse action under circumstances that give rise to an inference of unlawful discrimination, i.e., evidence that the plaintiff was replaced by someone significantly younger than the plaintiff. [Citation.]" (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 321 (Sandell), citing Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1002-1003, fn. omitted (Hersant).)
Shasby unquestionably met the first three elements of her prima facie case. Indeed, Amalfi's summary judgment argument focused on the fourth prong; it asserted that Shasby could not satisfy it because "Lin did not perform the same job." It is thus the fourth element that is disputed.
As detailed above, Amalfi submitted a significant amount of evidence in its moving papers tending to negate the claim that Shasby was "replaced" by a younger employee, Lin, as was claimed by Shasby in her complaint and in her opposition. There was undisputed evidence that Amalfi was a growing company that had a significantly different appearance with significantly different needs in 2011, as compared with its position in 2006 when Shasby was hired. The Company had expanded from a startup R&D with 30 to 40 employees in 2006 to a company in 2011 with manufacturing and sales activity and approximately 110 employees with an eye toward going public. In 2010, the year after Amalfi commenced manufacturing and sales, the finance group, presumably not coincidentally, expanded to include a fulltime CFO and a fulltime controller. And, according to Amalfi's controller, Whitty, the Company's expansion necessitated the hiring of a person with accounting sophistication, a CPA, who could, among other things, ensure that the Company's financial statements were accurate and complied with GAAP for an outside audit, and were satisfactory for potential outside investors. Amalfi's evidence showed that against this backdrop, the Company hired Lin in May 2011 for a newly created position of accounting manager. Lin had a postgraduate degree (MBA), formal training as an accountant, a recently (in 2010) obtained a California CPA license, and practical experience as a public accountant working for two international accounting firms. She also spoke Mandarin, a qualification of some importance because the majority of Amalfi's customers and suppliers were Mandarin-speaking and the Company was in the process of establishing a Chinese subsidiary.
As presented in Amalfi's moving papers, Lin, as accounting manager, performed a number of duties that differed from those performed by Shasby as financial administrator. Lin (1) researched technical accounting issues; (2) drafted the Company's financial statements with footnotes; (3) worked directly with auditors on a daily basis; (4) reviewed Amalfi's accounting practices for compliance with United States and international GAAP; (5) created written accounting practices and procedures for the Company under the FASB guidelines; (6) tested revenue transactions on a quarterly basis under the FASB guidelines; (7) assigned proper reserves for such items as warranty work and product returns; (8) evaluated the propriety of carrying fixed assets on the Company's books; (9) established a Shanghai subsidiary; (10) worked with international accounting service providers; and (11) managed administrative and accounting aspects of Amalfi's operations in Singapore and Shanghai. Most of these enumerated duties of Lin, according to Shasby's own deposition testimony, were functions that Shasby did not consider part of her duties as financial administrator; she noted that most were functions, the performance of which she deferred to the controller and her supervisor, Whitty. And both Lin and Whitty (Shasby's and Lin's supervisor) declared that the majority of Lin's job duties were different from those previously performed by Shasby. Whitty estimated that majority as more than 75 %; according to Lin, she spent approximately 20 % of her time performing, delegating, or supervising others doing bookkeeping duties previously performed by Shasby. And Whitty assigned to Lin many of the duties he previously performed, which allowed him to spend much of his time working on the search for outside capital.
To be sure, Shasby presented opposing evidence seeking to diminish Lin's qualifications, characterizing them as "underwhelming." Shasby emphasized that Lin (1) had significantly less time (nine years) working in accounting than Shasby (28 years); (2) held an active CPA license for only a short time, her license becoming inactive in July 2011; (3) was never qualified to sign off on financial statements because she had not worked enough hours at public accounting firms; (4) received her MBA degree after only one year of studies that included only two accounting courses that were redundant to her prior college coursework; and (5) was hired by Amalfi without it seeking or interviewing other applicants. Shasby noted that Lin's Mandarin skills were limited in that she was not fluent in reading or writing simplified (as opposed to traditional) Chinese characters, and that speaking Mandarin was not required for the job; rather, the written job description for the accounting manager position noted, under "Required Skills," that "Chinese language skills, written or oral, [were] a plus." Additionally, Shasby asserted that Lin had not had prior experience performing cost accounting, accounting for employee share-based payments, or with certain software programs.
Shasby also submitted evidence suggesting a minimization of the significance or sophistication level of Lin's work at Amalfi. She argued that Lin performed minimal accounting research and produced "only . . . ten pages of accounting policies and procedures." She denigrated the work Lin performed to set up the Shanghai subsidiary, arguing on appeal that Lin performed little actual work, utilized other sources (consulting the Internet, obtaining a reference from Hildebrand, and hiring a consultant in China), and that the work, in any event, consisted of duties such as assisting in the decoration of the Shanghai office, that did not require accounting skills.
Shasby's opposing evidence created some questions regarding the level of Lin's qualifications and her ultimate contributions as Amalfi's accounting manager. But the employer's "true reasons need not necessarily have been wise or correct." (Guz, supra, 24 Cal.4th at p. 358; see also Fuentes v. Perskie (3d Cir. 1994) 32 F.3d 759, 765 [discriminatory animus is the ultimate question, not whether employer's decision was "wrong or mistaken," or whether employer is "wise, shrewd, prudent, or competent"].) The ultimate wisdom of Amalfi's decision to hire Lin for the new position of accounting manager is not relevant to our inquiry. Shasby's opposition did not refute that Lin (1) had significant training and experience in accounting that Shasby did not have; (2) performed accounting work that differed in a number of respects from the work Shasby had performed as financial administrator; and (3) performed many tasks that Shasby did not believe were included in her job responsibilities as financial administrator.
The burden placed upon a plaintiff to present a prima facie case of age discrimination, "[w]hile . . . 'not onerous' ([Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248, 253]), [requires that she] 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, 24 Cal.4th at p. 355, internal citations omitted.) Shasby did not present a prima facie showing of age discrimination because she did not satisfy the fourth prong of presenting evidence that she "was replaced by someone significantly younger than [she]." (Sandell, supra, 188 Cal.App.4th at p. 321, italics added; see also Hersant, supra, 57 Cal.App.4th at pp. 1002-1003.) While Shasby alleged that Lin "assumed Ms. Shasby's job duties" and that Lin's position "was essentially the same as Ms. Shasby's," she failed to support those allegations in her opposition to the motion. While there was evidence that some of Shasby's job duties were ultimately assumed by Lin, as discussed (see pt. I.C., ante), Lin was responsible for numerous tasks as accounting manager (e.g., drafting Company financial statements, working with Company auditors, establishing the Shanghai subsidiary, working with international accounting services) for which Shasby had no previous responsibility. Indeed, the majority of Lin's job involved duties that were different from those Shasby had performed as a financial administrator. And Lin had formal training and experience as an accountant, while Shasby did not. Shasby did not substantiate her claim that she was replaced by the accounting manager (Lin) who was more than 20 years younger that she, and thus did not make a prima facie showing of discrimination. (See Merriam-Webster's Collegiate Dictionary (10th ed. 1993) p. 992 ["replace: . . . to take the place of esp. as a substitute or successor"].) Summary judgment was therefore proper.
Although the trial court did not grant summary judgment on this basis, since we perform an independent review of the granting of summary judgment (Wiener, supra, 32 Cal.4th at p. 1142), and we are not bound by the trial court's reasons (Kids' Universe, supra, 95 Cal.App.4th at p. 878), it is appropriate for us to conclude that summary judgment was proper because Shasby failed to present a prima facie case of discrimination.
D. Amalfi's Claimed Legitimate Reason & Shasby's Insufficient Rebuttal
Assuming arguendo that Shasby made a prima facie showing of age discrimination, summary judgment disposing of her claim would have still been appropriate if (1) Amalfi had presented a nondiscriminatory reason for Shasby's termination, and (2) Shasby had failed "to show there was nonetheless a triable issue that decisions leading to [the employer's adverse action] were actually made on the prohibited basis of [her] age. [Citations.]" (Guz, supra, 24 Cal.4th at p. 360.) As we will discuss, Amalfi made such responsive showing, assuming Shasby presented a prima facie case. But as we will also explain below, Shasby failed to show there was a triable issue that Amalfi's termination decision was actually made on the prohibited basis of her age.
Shasby argues, quoting Nidds v. Schindler Elevator Corp. (9th Cir. 1996) 113 F.3d 912, 917, that " ' "the failure to prove replacement by a younger employee is 'not necessarily fatal' to an age discrimination claim where the discharge results from a general reduction in the work force due to business conditions." ' " Our high court in Guz has cited this passage of Nidds with approval. (Guz, supra, 24 Cal.4th at p. 366.) Accordingly, we will assume for purposes of the discussion in this section of the opinion that Shasby presented a prima facie case of discrimination.
1. Amalfi's Evidence of Nondiscriminatory Reason
Amalfi argued below that it had articulated a nondiscriminatory reason for discharging Shasby because (1) it needed a higher level of accounting expertise than a financial administrator could provide; (2) Shasby did not have the required accounting skills; (3) Lin had greater knowledge and expertise and could perform the higher level accounting functions; (4) the bulk of Lin's job duties were ones that were not part of Shasby's job as financial administrator; and (5) after Lin was hired, it was determined that the job duties of the financial administrator could be incorporated into Lin's work or delegated to others, with Lin devoting most of her time to higher level accounting work. Amalfi asserted below that it had thus "articulat[ed] a clear, detailed, non-discriminatory reason for hiring Ms. Lin as [a]ccounting [m]anager, and eliminating the job of [f]inancial [a]dministrator; upgrading a post is not unlawful, and is a reasonable (and most likely) explanation for its job action." (Footnote omitted.) The Company renews that argument on appeal.
Shasby asserts in her reply brief that Amalfi's may not argue on appeal that it discharged Shasby because " '[u]pgrading a job position, and selecting and retaining an employee with different skills than a plaintiff, is recognized as a legitimate nondiscriminatory job action' " Citing no legal authority, she contends that Amalfi did not make this argument below, and therefore cannot assert it on appeal. We reject Shasby's contention for two reasons. First, we may disregard it because appellate courts "need not consider an argument for which no authority is furnished." (Dabney v. Dabney (2002) 104 Cal.App.4th 379, 384.) Second, we observe that Amalfi did make the argument below that it upgraded the job position by creating the accounting manager position, hiring Lin to fill it, and then concluding that it did not need both and accounting manager and financial administrator and eliminated the latter position.
Amalfi presented evidence that Hildebrand and Whitty determined sometime after July 2010 that Amalfi needed to upgrade the sophistication level of its finance department by hiring a person with CPA credentials to fill the new position of accounting manager. This person was needed "to account for inventory, manufacturing and sales, help make the company's accounting more professionally documented for potential investors, and, in all major respects, make sure that Amalfi's accounting practices and procedures were accurate and compliant with U.S. and International [GAAP]." Whitty had concluded by early 2011, when Amalfi was about to be audited, that the Company "needed someone with a different skill set" than Shasby's and that she "could not perform above a financial administrator position." Amalfi then hired Lin—a person with a skill set different from Shasby's and with more extensive accounting training—as accounting manager. As discussed (see pt. III.C., ante), the Company presented significant evidence that Lin performed a number of accounting and other functions that had not previously been performed by Shasby, and that Lin spent less than one-quarter of her time at work performing, delegating, or supervising tasks for which Shasby had been previously responsible.
Whitty declared that, although it was not clear to him when he initially determined the need for an accounting manager whether Shasby would be retained as financial administrator, later, in May 2011, Amalfi eliminated several positions, including Shasby's because the Company "was not as profitable as it needed to be." As Whitty explained in his declaration: "While an [a]ccounting [m]anager could incorporate into a small portion of her time the performance, delegation, and oversight of Amalfi's basic bookkeeping functions, a [f]inancial [a]dministrator could not incorporate into her job the high level accounting work of a CPA [a]ccounting [m]anager. That is why, since [it] could keep only one of the two positions, Amalfi kept the [a]ccounting [m]anager and eliminated the job of [f]inancial [a]dministrator."
Under the McDonnell Douglas approach, assuming Shasby made a prima facie showing, Amalfi was then required to rebut the presumption of discrimination with admissible evidence of a legitimate reason for the decision to terminate her. (Guz, supra, 24 Cal.4th at pp. 355-356.) This is a burden of production, not a burden of proof. (St. Mary's Honor Center v. Hicks (1993) 509 U.S. 502, 507 (Hicks).) It "is 'exceedingly light'; the defendant must merely proffer non-[discriminatory] reasons, not prove them. [Citations.]" (Meeks v. Computer Associates Intern. (11th Cir. 1994) 15 F.3d 1013, 1019 (Meeks).) Here, as described above, Amalfi made such a proffer, having presented in its moving papers an "explanation of nondiscriminatory reasons [that] was creditable on its face." (Guz, supra, at p. 357.)
Shasby argues that Amalfi presented no "admissible evidence of a nondiscriminatory reason for discharging [her]." (Underscoring omitted.) To the extent Shasby contends that the evidence recited above does not establish, at least facially, a nondiscriminatory reason, we disagree. In arguing that Amalfi's evidence did not support a lawful basis for its termination decision, Shasby seemingly assumes that Amalfi had the burden of proving this fact, rather than simply proffering admissible evidence supporting it, a burden of production that "is 'exceedingly light.' " (Meeks, supra, 15 F.3d at p. 1019.) To the extent that her argument, utilizing the adjective admissible evidence, may suggest that the Company submitted some evidence of a permissible reason for terminating Shasby but that evidence was inadmissible, we reject the argument; she has failed to develop the argument concerning the alleged inadmissibility of the unspecified evidence with any meaningful discussion. (See Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6 [although review of summary judgment is de novo, appellate court will not address issues that have not been adequately raised and addressed in appellant's brief].)
2. Shasby's Insufficient Rebuttal Evidence
Because Amalfi proffered a creditable nondiscriminatory reason for its termination decision, Shasby was required "to rebut this facially dispositive showing by pointing to evidence which nonetheless raises a rational inference that intentional discrimination occurred." (Guz, supra, 24 Cal.4th at p. 357, original italics.) She argues at length that Amalfi's asserted reasons for her termination were false and were a pretext for discrimination. She contends the evidence showed many "inconsistencies regarding Amalfi's [explanation of an] alleged reduction in force." She offers a number of points in support of these contentions.
Shasby argues that the Company's claim that "it hired Ms. Lin because there was an increase in business and work that needed to be done" was contradicted by its contention that it terminated Shasby "because business was slower than expected." It is true that Lin testified in deposition that after she was hired, she was told by Whitty that Amalfi would not be retaining Shasby because "the [C]ompany [had] not grow[n] as fast as [it had] initially planned." But—as explained by Whitty—the Company's decision to hire an accounting manager, taking place months before the actual hiring of Lin, was not (contrary to Shasby's claim) based strictly upon "an increase in business and work." Rather, it was due to Amalfi having commenced manufacturing and sales activity in 2009 that resulted in its "accounting needs [becoming] more complex." It therefore needed greater sophistication in the handling of its financial statements and other financial records to ensure their accuracy and GAAP compliance.
Shasby asserts further that the Company deceived her in connection with its plans for her future when it hired Lin. Specifically, she points to evidence that in April 2011 (prior to Lin's hiring), Shasby was informed by Whitty that she would be given the opportunity to interview the applicant for the accounting manager position; Shasby was not ultimately given that opportunity. Shasby also declared that in April 2011, Whitty gave her oral and written assurances that Amalfi's decision to hire and accounting manager would not affect her employment with the Company. But, Shasby argues, there was evidence that at the time the Company gave these assurances, it had already determined that she would be terminated. Lin was told by Whitty on her first day on the job that Shasby would no longer be employed at Amalfi after two weeks. Whitty testified that "with the hiring of the accounting manager, I think that the conclusion was that [Shasby's] employment would terminate." And there were text messages between Hildebrand and Whitty dated April 2, 2011, produced in the litigation which Shasby argues showed that the Company was considering terminating Shasby before the commencement of Lin's employment. While this evidence, which we "view . . . in the light most favorable to [Shasby] as the losing party [citation]" (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64), suggests that Amalfi may not have handled Shasby's termination in the most straightforward manner, it does not suggest that discriminatory bias was the motivation for her ultimate termination. (See Guz, supra, 24 Cal.4th at p. 361 [evidence employer may have lied about reasons for employee's termination insufficient, by itself, to give rise to inference of intentional discrimination].)
Shasby declared that her written assurance from Whitty to this effect was by email, but that she did not have a copy of it, and Amalfi did not produce it in the litigation.
One text message read: "Either termination date. [Lin] should start after." Although the text messages were not properly authenticated, Amalfi did not object to their introduction, and Amalfi admitted that they "include[d] a discussion about whether Aurora Shasby should be terminated before Maggie Lin began work." In the interests of liberally construing Shasby's opposing evidence, we will overlook this lack of authentication and consider the emails here.
As a related argument, Shasby contends that although Amalfi stated that the decisions to hire Lin as accounting manager and to terminate Shasby were separate, independent matters, there was contradictory evidence (referenced above) that the decisions were made simultaneously. She argues further that one may infer pretext by the timing here—i.e., Shasby was terminated after training Lin for two weeks. But even if there were one coordinated decision to hire Lin and terminate Shasby, this fact does not demonstrate discriminatory animus on Amalfi's part.
Shasby also cites the deposition testimony of Hildebrand. In response to the question of whether Shasby was "discharged in a reduction in force," Hildebrand testified: "The decision to eliminate [Shasby's] position was come to in the process of going through the reduction in force." Shasby argues this testimony is evasive and supports her claim of pretext. But Hildebrand also testified that it was "not obvious when [the Company was] first thinking about having an accounting manager that [it was] not going to continue to have . . . the financial administrator." He stated that it "would all depend on the workload and the growth of the company." Thus, the evidence supports that when the Company initially determined it needed an accounting manager, it had not yet decided to eliminate the financial administrator position. That decision came later, at or shortly before the time Lin was hired. No pretext or discriminatory motive may be inferred from the cited Hildebrand testimony.
Further, Shasby contends that no reduction in force occurred because there was no decrease in the number of finance department employees between the time immediately before Lin's hiring and after Shasby's firing 16 days later. But there was evidence that there was a reduction in force of at least three employees (including Shasby) in 2011. And the fact that the total number of employees in the finance department (four people) was not reduced by Shasby's termination—when comparing it with the number of employees in that small department before Lin's hiring—does not mean that Shasby, along with the two employees in other departments, were not terminated because of an overall reduction in force.
Both Shasby and Amalfi make reference to four employees (including Shasby) having been terminated in 2011 due to a claimed reduction in force. But the record, as cited by Shasby, reflects a total of three employees, including Shasby, who were involuntarily terminated due to a layoff in 2011, all occurring in May of that year. This discrepancy is immaterial to our analysis.
This number is based upon organizational charts that were exhibits to Whitty's deposition and which were relied upon in Shasby's opposition to summary judgment.
Shasby makes the catchall argument that Amalfi "replaced her with an employee who was half her age because it needed a so-called different skill set, [a claim made by the Company which] is demonstrably false." She argues that the Company's position is belied by the fact that (1) she, in fact, provided two weeks of training to Lin concerning Shasby's job duties, (2) Lin had no experience with respect to many of her alleged new duties, (3) Lin was given a performance review after one year indicating that she had been unable to perform certain tasks, and (4) Amalfi "refus[ed] to train [Shasby concerning new duties performed by Lin] based on its apparent belief that 'you can't teach an old dog new tricks.' "
Initially, in addressing this claim, we note that while Amalfi contends that it needed someone with a skill set different from Shasby's to assume an accounting manager position, Almafi disputes with a significant amount of evidence that it replaced Shasby with Lin. As we have discussed (see pt. III.C., ante), Shasby failed to substantiate the allegation in her complaint that she was replaced by the younger employee, Lin. This point aside, neither the fact that Shasby provided training to Lin nor that Lin may have been unable to perform some of her tasks is evidence that Amalfi's reason for terminating Shasby was a pretext, or indicative of a discriminatory motive. (See Guz, supra, 24 Cal.4th at p. 358 [if employer's reason for terminating employee is nondiscriminatory, it "need not necessarily have been wise or correct"].) And there is no evidence that the Company refused to train Shasby for tasks assumed by Lin as accounting manager because of (as Shasby argues) a "belief that 'you can't teach an old dog new tricks.' " Although there was evidence from Whitty that, based upon his experience in working with Shasby, she could not perform above the level of financial administrator, any assertion that the Company's failure to train her to perform accounting manager tasks because of her age is mere speculation. (See Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 807 (Horn) [triable issue of fact must be based upon conflict of evidence, not "by speculation or conjecture"]; Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163 ["responsive evidence that gives rise to no more than mere speculation" is not substantial evidence].) And as discussed, ante, Amalfi presented significant evidence that it believed it needed to hire an accounting manager with greater accounting training and experience than Shasby's to perform accounting duties that Shasby had not performed and for which she did not have the requisite training, including having direct responsibility to make accounting decisions for which Shasby had previously relied on Whitty to make. "The fact that an age-protected worker is less qualified or performed duties different from those retained or treated more favorably may overcome any inference from raw age comparisons. [Citation.]" (Chin et al, Cal. Practice Guide: Employment Litigation (The Rutter Group 2016) ¶ 8:779, p. 8-106.)
Two cases relied on by Amalfi—Gibbs v. Consolidated Services (2003) 111 Cal.App.4th 794 (Gibbs), and Horn, supra, 72 Cal.App.4th 798—involved circumstances somewhat parallel to those here and are instructive. In Gibbs, the plaintiff was operations manager of a waste management company that was later acquired by a larger entity. (Gibbs, at p. 797.) The acquired company was restructured to improve its profitability, including restructuring the plaintiff's position to include new responsibilities such as planning and maintaining routes using the company's computer system and routing software. (Id. at pp. 797-798.) The plaintiff admitted to his supervisor that he did not have computer skills and could not use the routing software. (Id. at p. 798.) The company ultimately concluded that the plaintiff was not qualified for the restructured position and he was terminated at age 57. (Ibid.) The court concluded that the company had presented a legitimate nondiscriminatory reason for the plaintiff's discharge, and the plaintiff had not raised a triable issue to prevent summary judgment of his age discrimination claim. (Id. at pp. 799-801.) The court reasoned: "Put simply, [the] defendant had no further need of the skills [the] plaintiff actually was employing as an operations manager, in that the restructuring of the operations supervisor position changed the set of skills required to include some that [the] plaintiff lacked. Moreover, there is no evidence that [the] plaintiff was replaced by someone younger who possesses substantially the same skills and is performing substantially the same services. [Citations.] To the contrary, undisputed evidence demonstrates that [the] plaintiff's replacement . . . has many skills that [the] plaintiff lacks and is performing many services that [the] plaintiff did not perform." (Id. at p. 800.)
In Horn, supra, 72 Cal.App.4th 798, the plaintiff was hired as the regional communications manager for the western region of the defendant, a commercial real estate company. (Id. at p. 802.) Four years later, the defendant underwent a significant reorganization, including the plaintiff's position; as a result, the position's focus changed from internal to external communications, and the regional president believed that the plaintiff's skills were not suitable for the new position. (Id. at pp. 803-804.) The plaintiff, then 59, was terminated. (Id. at p. 804.) In reviewing the granting of summary judgment in the employer's favor on the plaintiff's age discrimination claim, the appellate court concluded that the defendant met its burden of producing substantial evidence that the reason for its termination decision was nondiscriminatory, i.e., that the regional president "believed that Horn was not the best fit for the restructured position." (Id. at p. 807.) It held further that the plaintiff's assertion that the decision to terminate him was age-related was "entirely speculative." (Id. at p. 808.)
Although the circumstances here differ in that, based upon evidence submitted by Amalfi, there was not a restructuring of Shasby's position that resulted in her replacement by Lin, Gibbs and Horn offer us some guidance. In those cases, as in this case, the employer made a proffer that its reasons for terminating the plaintiff were nondiscriminatory, and that they were based upon a restructuring of the business in some respect. And in Gibbs and Horn, as well as here, the plaintiff was deemed less qualified and therefore his/her services were no longer required. And in each of the three cases, the plaintiff failed to rebut the employer's showing of a legitimate reason for terminating the plaintiff by " 'produc[ing] specific facts either directly evidencing a discriminatory motive or showing that the employer's explanation is not credible.' " (Horn, supra, 72 Cal.App.4th 817, quoting Lindahl v. Air France (9th Cir. 1986) 930 F.2d 1434, 1437-1438.)
Shasby makes the further claim that it showed Amalfi engaged in "a pattern and practice of age discrimination." (Capitalization omitted.) She bases this assertion on two circumstances. First, there was, as described by Shasby, "an influx of young employees" into the finance department beginning in 2010. This "influx" consisted of three employees, Hildebrand, Whitty, and Lin; the hiring in each instance represented the first full-time for the position. This fact did not prove a practice of age discrimination. Second, Shasby points to the fact that each of the three employees (including Shasby) laid off in a reduction in force in May 2011 was over 40. But other than their ages—7 and 62—Shasby has presented no other information concerning the two other employees who were laid off. This is an insufficient showing that Shasby was terminated because of her age. As our high court has explained: "[W]here alleged numerical favoritism of younger workers arose within an extremely small employee pool, courts have rejected any consequent inference of intentional bias on grounds, among others, that the sample was too minuscule to demonstrate a statistically reliable discriminatory pattern. [Citations.]" (Guz, supra, 24 Cal.4th at p. 367; see also Life Technologies Corp. v. Superior Court (2011) 197 Cal.App.4th 640, 650 [to create inference of discrimination in disparate treatment case, " 'statistics must demonstrate a significant disparity and must eliminate nondiscriminatory reasons for the apparent disparity' "], overruled on other grounds in Williams v. Superior Court (2017) 3 Cal.5th 531, 557, fn. 8.) The statistics here are insufficient; the sample size—three employees from a pool of approximately 110—is too small to present a statistical basis for inferring a discriminatory pattern.
See footnote 14, ante.
The collective evidence submitted by Shasby in opposition to summary judgment was insufficient to satisfy her burden—in responding to Amalfi's proffer of legitimate nondiscriminatory reasons for her termination—of "show[ing] there was nonetheless a triable issue that decisions leading to [her] termination were actually made on the prohibited basis of [her] age. [Citations.]" (Guz, supra, 24 Cal.4th at p. 360.) This is not a case where the plaintiff can point to comments by the employer indicative of age bias. (See, e.g., Sandell, supra, 188 Cal.App.4th at p. 325 [60-year-old plaintiff terminated and ultimately replaced with person in his mid-forties; company president commented in several management meetings that he preferred " 'fir[ing] old people and replac[ing] them with newer, younger people because it was cheaper' "].) Shasby admitted there had never been any ageist comments made in the workplace. (Cf. Cheal v. El Camino Hospital (2014) 223 Cal.App.4th 736, 755 [supervisor's comments suggesting favoritism toward younger workers went "far toward casting the legitimacy of [the employer's] justification in doubt and support[ed] . . . an inference of discriminatory animus"]; McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510, 1534 [noting employee had "presented no . . . evidence of derogatory, pejorative, or demeaning statements" by management indicative of discriminatory animus].) And, as discussed (see pt. III.C., ante), Shasby did not present evidence supporting her allegation that she was replaced by a younger worker. But even if we were to credit Shasby's argument that she was replaced by Lin, the case does not present a familiar pattern of age discrimination in which the employer replaced the class-protected plaintiff with a younger worker at a lower salary; Lin was hired at a salary more than ten percent higher than Shasby's salary.
The evidence submitted by Shasby did not show that Amalfi's stated reasons for terminating her were pretextual. But even if pretext were shown, "an inference of intentional discrimination cannot be drawn solely from evidence, if any, that the company lied about its reasons. The pertinent statutes do not prohibit lying, they prohibit discrimination. [Citation.]" (Guz, supra, 24 Cal.4th at pp. 360-361, citing Hicks, supra, 509 U.S. at p. 521; see also Mamou, supra, 165 Cal.App.4th at p. 715 [central issue is not pretext; rather, it is "whether the evidence as a whole supports a reasoned inference that the challenged action was the product of discriminatory . . . animus"].) Here, Amalfi was entitled to summary judgment because, after "considering the employer's innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that [Amalfi's] actual motive was discriminatory." (Guz, supra, at p. 361, fn. omitted.) Stated otherwise, summary judgment was proper because "[Shasby's] evidence raised, at best, only a weak suspicion that discrimination was a likely basis for [her] release." (Id. at pp. 369-370.)
Shasby makes two separate contentions on appeal that we note in passing but need not address on their merits. First, in her opening brief, she argues that the trial court erred by failing to rule on her written objections to defendant's evidence. The court based this ruling on Shasby's failure to comply with rule 3.1354(c) of the California Rules of Court because she did not include a proposed order with her objections. (The trial court likewise refused to consider Amalfi's evidentiary objections for the same reason.) Shasby admitted that she did not comply with rule 3.1354(c)—providing in relevant part that "[a] party submitting written objections to evidence must submit with the objections a proposed order." (Italics added.) Shasby reversed her position in her reply brief, urging that we find that evidentiary objections by both parties were waived. In light of the express abandonment by Shasby of her original position on appeal (Chohon v. Kersey Kinsey Co. (1959) 173 Cal.App.2d 548, 553), and because, in any event, she submitted no case law in her opening brief and only the most cursory of arguments in support of her position that the trial court erred (see Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 (Benach) [contentions deemed waived where based upon conclusory presentation in appellate brief without argument or application of pertinent law]), we will not address this contention.
Second, Shasby argues that the trial court erred by failing to strike reply papers submitted by Amalfi that she claimed were improper because they included additional evidence. Because we have not considered any evidence that may have been submitted by Amalfi in its reply in connection with our de novo review of the court's decision, we need not address Shasby's contention. (See Benach, supra, 149 Cal.App.4th at p. 845, fn. 5 [appellate courts will not address issues whose resolution is unnecessary to the disposition of the appeal].)
IV. DISPOSITION
The judgment entered on the order granting summary judgment is affirmed.
/s/_________
Bamattre-Manoukian, J. WE CONCUR: /s/_________
Premo, Acting P.J. /s/_________
Mihara, J.