Opinion
Case No. 2:09-cv-06459-JHN-CWx.
July 13, 2010
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
The matter before the Court is Defendant's Motion for Summary Judgment ("Motion") (Docket No. 22), filed on June 14, 2010. The matter came regularly for hearing on July 12, 2010, the Honorable Jacqueline H. Nguyen presiding. The Court has considered the briefs and evidence filed in this matter, as well as counsel's argument at hearing. For the reasons herein, the Court GRANTS the Motion.
I. FACTUAL BACKGROUND
In January 1996, Plaintiff Jose Felix ("Plaintiff"), a Roman Catholic, began working for Defendant Baxter Healthcare Corporation ("Defendant") as an Animal Lab Technician. (Pl.'s Resp. ¶ 1.) In 2003 or 2004, Plaintiff became a Quality Specialist Technician in the Bacteriology ("Bacti") group, where he works today. ( Id. at ¶ 2.) In 2004, the Microbiology Department switched to a "4/10" schedule with two shifts, Wednesday through Saturday and Sunday through Wednesday. (Dep. of Jose Felix ("Pl.'s Dep.") 25:20-26:2.) Plaintiff soon thereafter informed Defendant that his Catholicism prevented him from working on Sundays. ( Id. at 25:4-26:11.) When the 4/10 rotation schedule took effect, Defendant assigned Plaintiff a Wednesday through Saturday shift. ( Id. at 32:13-17.) Sometime later in 2004 and until the summer of 2008, Plaintiff worked a Tuesday through Friday shift. ( Id. at 31:17-32:17.) All other Technicians, Quality Specialists, and Quality Lab Associates, in the Microbiology Department, worked either a Wednesday through Saturday or Sunday through Wednesday shift. (Declaration of LeReece Campbell ("Campbell Decl.") ¶ 2.)
After Plaintiff requested accommodation in 2004 for his religious worship and Defendant assigned Plaintiff a non-Sunday shift, Plaintiff received performance reviews for the years 2006 and 2007. (Pl.'s Resp. ¶ 3.) He received scores of "fully meets expectations," although he did receive criticism for lack of initiative and documentation errors. ( Id.; Pl.'s Dep. 355-361:1; Pl.'s Exs. 23-24.) Plaintiff did not consider these criticisms to be discriminatory or retaliatory. (Pl.'s Dep. 356:12-16.)
In April or May of 2008, Defendant reorganized its Microbiology Department and implemented a cross-training program "to align coverage, rotate testers, and address growing concerns over repetitive stress injuries." (Campbell Decl. ¶ 2; Declaration of David Michael Swartz ("Swartz Decl.") ¶ 3.) As part of this reorganization, Defendant promoted Nilesh Patel ("Patel"), an employee in the Bacti group, to a newly created Trainer/Floater position. (Campbell Decl. ¶ 3; Swartz Decl. ¶ 3.) Patel was the only Quality Lab Associate I who applied for that new position and met the minimum qualifications. (Campbell Decl. ¶ 3.) Patel's promotion left his Sunday to Wednesday shift vacant, prompting LeReece Campbell ("Campbell") and David Michael Swartz ("Swartz") to eliminate Plaintiff's Tuesday through Friday shift. ( Id. at ¶ 4; Swartz Decl. ¶ 3.) Campbell was Plaintiff's supervisor from 2008 to 2009, and Swartz was the manager to whom Campbell reported. (Pl.'s Dep. 63:3-6; Swartz Decl. ¶ 2.) Campbell and Swartz decided to eliminate Plaintiff's shift, as opposed to Patel's shift, because eliminating Patel's shift would have left Defendant without an employee working Sunday or Monday to conduct essential daily testing. (Campbell Decl. ¶ 4; Swartz Decl. ¶ 3.)
On or about June 4, 2008, Campbell informed Plaintiff that his shift was going to be eliminated and that he would need to work Sunday to Wednesday. (Pl.'s Resp. ¶ 11.) Plaintiff told Campbell that the proposed schedule conflicted with his religious views. ( Id.) On or about July 17, 2008, Plaintiff met with Dr. Yeong Wang ("Wang"), at the time the Director of Quality Laboratory to whom Swartz reported, and requested to work a shift not including Sundays. ( Id.; Declaration of Yeong Wang ("Wang Decl.") ¶ 2.) Plaintiff claims to have memorialized his conversation with Wang in an email (Pl.'s Ex. 18), wherein Plaintiff seeks confirmation from Wang that he will only have to work a few Sundays if necessary. (Pl.'s Resp. ¶ 11.) Wang replied to Plaintiff's email, copied Campbell and Swartz on that email, and according to Plaintiff, instructed Campbell and Swartz to accommodate Plaintiff's need to have Sundays free from work. ( Id.) However, as a copy of that email provided by Defendant shows, Wang only instructed Swartz and Campbell to continue "doing their best to accommodate [Plaintiff's] personal need" to the extent that a "business need" would allow it. (Def.'s Ex. 5.) Wang never confirmed that Defendant would be able to accommodate Plaintiff by allowing him to work few to no Sundays. (Id.) Later that afternoon, Swartz "replied all" to Wang's email:
Jose,
Just to clarify, I don't think your statement of, `working a few Sunday to Wednesday shifts to support the department' accurately reflects our current need. We are asking you to go on the Sun-Wed shift full-time. Should a slot open on another shift, we can discuss a move at that time. It should be noted that there are currently several Mon-Fri openings on swing and grave in EM.
. . .
As Yeong stated, we want to be flexible and balance personal and business needs. Unfortunately, the only other shifts that don't include Sunday work are in EM. When other positions become available in Bacti, we will be more than happy to discuss a switch at that time.(Id.)
Campbell thereafter informed Dean Arnold ("Arnold") in the Human Resources Department of Plaintiff's request, and Defendant postponed the elimination of Plaintiff's shift for approximately a month and a half in order to explore possible ways to accommodate Plaintiff. (Declaration of Dean Arnold ("Arnold Decl.") ¶ 2; Campbell Decl. ¶ 6.) During that time, Plaintiff met with various individuals, including Campbell, Swartz, and Wang, at which time Plaintiff was able to express his concerns about working on Sundays and discuss why his shift was being eliminated. (See Pl.'s Dep. 75-85.) Plaintiff has no recollection of anyone acting in an unprofessional manner during that process. ( Id. at 82:16-83:13.) In fact, Plaintiff cannot recall any of Defendant's employees ever making negative or derogatory comments regarding Plaintiff's religion or request for accommodation or anyone else's religion or request for accommodation. ( Id. at 316:23-318:4.)
Ultimately, on August 13, 2008, Arnold informed Plaintiff that Defendant's business needs mandated the elimination of his shift. (Arnold Dec. ¶ 3; Def.'s Ex. 7.) Arnold referred Plaintiff to Inside Advantage, Defendant's in-house job posting system, for other positions. (Id.) Plaintiff never reviewed Inside Advantage. (Pl.'s Dep. 127:15-17.) Defendant also told Plaintiff to consider an open non-Sunday shift in the Environmental Monitoring ("EM") group. (Def.'s Ex. 5.) Although Plaintiff acknowledges that the EM position had the same title and pay, Plaintiff also refused to consider that EM position. (Pl.'s Dep.' 113:14-114:24.)
Plaintiff eventually worked the Sunday shift from August 2008 until November 2009. (Pl.'s Resp. ¶¶ 20, 23.) After Defendant eliminated Plaintiff's shift, Plaintiff is unaware of any other employee taking over his former shift. (Pl.'s Dep. 77:2-4.)
While Plaintiff worked the Sunday shift, Plaintiff received a 2008 performance review of "partially meets" expectations for documentation errors and failure to meet certain goals. (Pl.'s Resp. ¶ 27.) Although Plaintiff believes the lower rating was retaliatory, he does not disagree with the criticism he received. (Pl.'s Dep. 362:18-20.) Plaintiff's 2008 performance review resulted in a 1.75% raise; employees with a "fully meets" rating received a 3% raise, a difference in salary of approximately $644.22. (Pl.'s Resp. ¶ 27; Campbell Decl. ¶ 13; Pl.'s Ex. 18; Def.'s Mem. 10.) Plaintiff's 2009 performance review also gave Plaintiff a rating of "partially meets" expectations due to his lack of initiative, documentation errors, and Exception Reports. (Pl.'s Resp. ¶ 28.) Plaintiff received a .6% or .7% raise in 2009; employees with a "fully meets" rating received a 2% raise, a difference in salary of approximately $743.18. ( Id.; Campbell Decl. ¶ 14; Def.'s Mem. 10.)
On August 12, 2008, Plaintiff received a "Corrective Action" notice for excessive absenteeism and failure to give timely notice of his expected absence at least one hour prior to his shift. (Pl.'s Ex. 15.) According to the notice, "excessive absenteeism" includes "3 or more separate absences in a 90-day period." (Id.) Plaintiff acknowledges that the notice accurately states Defendant's policy. (Pl.'s Dep. 156:6-19.) He further admits that he failed to comply with that policy when he missed work on July 18, 2008, August 10, 2008, and August 11, 2008 and failed to timely report his absence on at least one occasion. ( See id. at 156:6-158:21.)
On September 10, 2008, Plaintiff received another Corrective Action notice — this time for failure to report to Defendant's Thousand Oaks facility. (Pl.'s Ex. 13.) According to that notice, Defendant informed Plaintiff that he needed to report to that facility on September 10th due to a lack of staff there to conduct essential testing. (Id.) However, in violation of his superior's orders, Plaintiff refused to drive to Thousand Oaks and chose to report to the Los Angeles facility. (Id.) On this basis, Defendant issued the notice as a warning. (Id.) Plaintiff, however, claims that the schedule for September 10th had changed and that he was never required to report to the Thousand Oaks facility. (Pl.'s Dep. 180:11-20.)
During the time Plaintiff worked the Sunday shift from 2008 to 2009, he filed two California Department of Fair Employment and Housing ("DFEH") charges. (Pl.'s Resp. ¶ 23.) The first was on or about November 6, 2008, and the second was on May 18, 2009. (Id.) Plaintiff claimed Defendant had failed to accommodate his religious beliefs and retaliated against him due to his request for accommodation. (Id.)
On October 22, 2009, a non-Sunday shift in the Bacti group became available for the first time since Plaintiff's shift was eliminated. (Campbell Decl. ¶ 12.) Defendant offered Plaintiff that position before anyone else. (Id.) On November 3, 2009, Plaintiff accepted and continues to work that non-Sunday shift in the Bacti group. (Pl.'s Resp. ¶ 26.)
II. PROCEDURAL HISTORY
Plaintiff filed this action against Defendant for (1) religious discrimination, (2) failure to accommodate, and (3) retaliation. Plaintiff asserts all three causes of action under the California Fair Employment and Housing Act ("FEHA"), California Government Code § 12900 et seq. On September 4, 2009, Defendant removed this action to federal court on the basis of diversity jurisdiction.
On June 14, 2010, Defendant moved for summary judgment. Defendant filed the instant Motion, a supporting Memorandum ("Def.'s Mem."), and a Statement of Undisputed Facts and Conclusions of Law ("Def.'s UF"). Plaintiff thereafter filed a Memorandum in Opposition ("Opp'n"), Plaintiff's Response to Defendant's Statements of Undisputed Material Facts ("Pl.'s Resp."), Plaintiff's Separate Statement of Undisputed Material Facts ("Pl.'s UF"), and objections to the declarations of Arnold, Swartz, Wang, and Campbell. Defendant thereafter filed a Reply in support of the Motion ("Def.'s Reply"), a Reply to Plaintiff's Evidentiary Objections ("Def.'s Reply to Pl.'s Objections"), a Reply to Plaintiff's Response ("Def.'s Reply to Pl.'s Resp."), and a Reply to Plaintiff's Separate Statement of Undisputed Material Facts ("Def.'s Reply to Pl.'s UF"), and objections to Plaintiff's evidence.
Because the Court grants summary judgment in favor of Defendant, the Court need not address the merits of Defendant's objections to Plaintiff's evidence.
III. LEGAL STANDARD
Federal Rule of Civil Procedure 56 allows a party against whom relief is sought to move for summary judgment on all or part of the claim. Fed.R.Civ.P. 56(b). Summary judgment is appropriate where "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Id. at 56(c)(2). The moving party bears the burden of showing that the motion is properly made and supported. Id. at 56(e)(2). Once that showing is made, an opposing party "may not rely merely on allegations or denials in its own pleading." Id. Instead, the opposing party must identify specific facts showing a genuine issue of material fact for trial. Id. Where the opposing party is able to identify specific, relevant facts evidencing a genuine issue of material fact, the court must draw all inferences in favor of the opposing party and accordingly deny summary judgment. T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Assoc., 809 F.2d 626, 631 (9th Cir. 1987). However, the lack of any genuine issue of material fact will necessitate a grant of summary judgment.IV. EVIDENTIARY OBJECTIONS
Plaintiff filed objections to the declarations of Arnold, Swartz, Wang, and Campbell. Plaintiff's primary objection to all the declarations is that Defendant has attempted to create an issue of fact by submitting a declaration that contradicts previous deposition testimony. However, upon review of the evidence submitted by Plaintiff, the Court finds no direct contradiction of any assertion made in the declarations. The Court therefore overrules that objection as it applies to all the declarations.
Counsel again raised the argument at hearing that the declaration testimony, particularly that of Campbell, contradicts her previous deposition testimony. However, neither at hearing nor in Plaintiff's Objection to the Declaration of LeReece Campbell did Plaintiff provide any particular record citation regarding what statement in the declaration purportedly contradicts any particular statement in the deposition. Rather, Plaintiff makes the general assertion, without record citations, that Campbell's declaration testimony contradicts her deposition testimony. The Court has once again reviewed the declaration and deposition testimony and finds no merit to Plaintiff's argument.
Plaintiff's other objections to the declarations are on the grounds that they are vague, lack foundation, contain hearsay, are irrelevant and that the declarant lacks personal knowledge. With one exception, the Court finds no merit to these arguments and thus overrules Plaintiff's objections. The one exception is to the statement, contained in all four declarations, that "[s]enior management employees in Baxter's headquarters in Deerfield, Illinois are in charge of business operations and set business policies, practices, and guidelines." There is no foundation regarding how the declarants — none of whom are senior management employees working in Deerfield — are aware of the duties of those employees. Without that foundation, the Court cannot determine whether such statements are based on hearsay.
Accordingly, the Court grants Plaintiff's objection on this issue only and strikes the aforementioned statement regarding the duties of senior management employees in Deerfield. As stated, the Court overrules all other objections.
V. DISCUSSION
A. Religious Discrimination
Courts apply a burden-shifting analysis to employment discrimination claims under the FEHA. Her v. Career Sys. Dev. Corp., No. 2:08-cv-00233-GEB-GGH, 2009 U.S. Dist. LEXIS 115849, *3 (E.D. Cal. Dec. 11, 2009) (citing Loggins v. Kaiser Permanente Intern., 151 Cal. App. 4th 1102, 1109 (Cal. Ct. App. 2007). To survive a motion for summary judgment, a plaintiff must state a prima facie case of religious discrimination. Horn v. Cushman Wakefield W., 72 Cal. App. 4th 798, 806 (Cal. Ct. App. 1999). Where a plaintiff makes such a showing, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse employment action. Id. Where an employer offers such evidence, the burden ultimately shifts back to the plaintiff to offer "substantial evidence" (1) that the employer's cited reason was untrue or pretextual such that the actual reason for the adverse employment action was discrimination; (2) that the employer acted with a discriminatory animus; or (3) a combination of the two showing that the employer intended to discriminate. Id. at 806-07.
Because Defendant removed this action to federal court on the basis of diversity jurisdiction, the substantive law of California, the forum state, controls. See Vestar Dev. II, LLC v. Gen. Dynamics Corp., 249 F.3d 958, 960 (9th Cir. 2001).
Plaintiff claims that he faced discrimination in the following three ways: (1) Defendant purportedly failed to accommodate Plaintiff by requiring that Plaintiff work a Sunday shift in 2008 and 2009 (Opp'n 6, 11); (2) Defendant issued two Corrective Action notices ( id. at 9-10); and (3) Plaintiff received performance reviews stating that he "partially meets" expectations ( id. at 12).
Even assuming Plaintiff states a prima facie case of religious discrimination, Defendant proffers a legitimate, nondiscriminatory reason for all of these actions, and Plaintiff fails to bring forth substantial evidence of pretext or any discriminatory animus.
First, with regard to Plaintiff's accommodation argument, there was no failure to accommodate Plaintiff. Requiring Plaintiff to work a Sunday shift where a business necessity so requires does not amount to discrimination. The Court address this issue infra in more detail.
Second, with respect to the Corrective Action notices, Defendant has provided an ample basis showing a legitimate, nondiscriminatory reason for issuing those notices. The first Corrective Action notice was for Plaintiff's failure to report to Defendant's Thousand Oaks facility after his supervisors instructed him to do so. Although Plaintiff claims the schedule changed and he was not actually required to report to Thousand Oaks, he provides no substantial evidence of any pretext or discriminatory animus. He provides no evidence that Defendant's proffered reason was untrue or pretextual such that the actual reason for issuing the notice was religious discrimination. Defendant's claim of religious discrimination with respect to the second Corrective Action notice for absenteeism has even less merit. Defendant proffers a legitimate, nondiscriminatory reason for the notice — that Plaintiff violated company policy by missing three days of work within a 90-day period and failed, on at least one occasion, to timely notify his supervisor of his anticipated absence. Plaintiff not only fails to provide substantial evidence of pretext or a discriminatory animus, but Plaintiff even admits that he violated company policy. For these reasons, the Corrective Action notices do not create a genuine issue of material fact to state a claim for religious discrimination.
At hearing, Plaintiff's counsel argued that Defendant should have considered two of Defendant's absences as a single absence under its own policy, since those absences stemmed from the same illness. However, Defendant's policy states that consecutive absences will only be counted as one separate absence "as long as there is documentation from a healthcare provider." (Pl.'s Ex. 6 at 2.10(c).) Since Plaintiff provided no evidence of such documentation, Plaintiff's argument is unpersuasive. On this record, Defendant offers a legitimate basis as to why it considered Plaintiff's absences to be a violation of company policy.
Finally, in terms of the performance reviews, Defendant does articulate a legitimate, nondiscriminatory reason for Plaintiff's rating of "partially meets" expectations. Defendant claims that Plaintiff received a lower rating for documentation errors, failure to meet certain goals, lack of initiative, and Exception Reports. On this basis, Plaintiff received a raise of 1.75% in 2008 and .6% or .7% in 2009, whereas others with a higher rating received a raise of 3% and 2% for those respective years. The correlation between a lower rating and a lesser raise is legitimate and nondiscriminatory, as is the criticism levied against Plaintiff. With the burden shifted back to Plaintiff, he ultimately fails to provide substantial evidence of pretext or a discriminatory animus. That Plaintiff received these reviews while working his Sunday shift does not create a genuine issue of material fact that Defendant ever intentionally discriminated against Plaintiff on the basis of Plaintiff's religion. Part of the criticism Plaintiff received, for instance regarding documentation errors, Plaintiff had received in past years, and yet he still failed to adequately improve in that area. Failure to improve, following a warning, certainly warrants a rating of "partially meets" expectations. Moreover, although Plaintiff did receive a rating of "partially meets" expectations, he still received a pay raise from Defendant. Most of all, Plaintiff admits that the criticism he received in 2008 was warranted. Where an employee does not disagree with an employer's criticism, it is difficult for that employee to then argue that such criticism was untrue or a pretext for discrimination. Without more, Plaintiff fails to provide substantial evidence showing that Defendant's proffered reason for his performance reviews was wholly unworthy of credence. For these reasons, Plaintiff has failed to meet his burden and cannot cite to any genuine issue of material fact regarding his claim for religious discrimination.
At hearing, Plaintiff's counsel argued that the 2008 performance review was evidence of a discriminatory animus, because Plaintiff supposedly had received favorable reviews for the first part of 2008 by a reviewer aside from Campbell. However, upon review of Plaintiff's Separate Statement of Material Fact, the Court finds no mention of this assertion.
Counsel also argued that the 2008 performance review was discriminatory, because Campbell, who gave the review, was not Plaintiff's supervisor and therefore was not in a position to evaluate Plaintiff. However, Plaintiff admits that Campbell was his supervisor from midyear 2008 through the end of 2008. (Pl.'s Dep. 65:3-6.)
To the extent Plaintiff asserts a claim for failure to prevent discrimination, Plaintiff cannot maintain that claim where no underlying discrimination exists. Trujillo v. N. County Transit Dist., 63 Cal. App. 4th 280, 289 (Cal. Ct. App. 1998).
B. Failure to Accommodate
The Court applies a similar burden-shifting analysis to evaluate failure to accommodate claims under the FEHA. A plaintiff must first state a prima facie case, which requires evidence that the employee had a "bona fide religious belief, of which the employer was aware, that conflicts with an employment requirement." Soldinger v. Nw. Airlines, 51 Cal. App. 4th 345, 370 (Cal. Ct. App. 1996). Where a plaintiff makes that showing, the burden shifts to the employer to "establish it initiated good faith efforts to accommodate or no accommodation was possible without producing undue hardship." Id. (emphasis added). If an employer can satisfy that burden, the inquiry ends with summary judgment for the employer. The Court evaluates the "reasonableness" of the employer's efforts, acknowledging that the FEHA does not require any employer to choose the most reasonable accommodation or to accept any proposed solution provided by the plaintiff. Id. at 370. With respect to the undue hardship inquiry, courts consider an undue hardship to be any proposed solution that would result in more than a de minimis cost to the employer. Id. at 371. Most of all, courts must remember that "[t]he obligation to search for an acceptable solution is bilateral." Id. at 370. Where an employee fails to make a good faith effort to explore alternatives, a plaintiff cannot state a claim for failure to accommodate. Id.
In this case, Plaintiff has made the requisite prima facie showing. The evidence suggests that Plaintiff had a bona fide religious belief in his Catholic faith, Defendant was aware of that belief, and Plaintiff's belief conflicted with his ability to work Defendant's Sunday shift. As such, the burden shifted to Defendant to show that it engaged in good faith efforts to accommodate Plaintiff or that an accommodation would have resulted in an undue hardship.
Defendant has met that burden. First, Defendant provides ample evidence that it engaged in good faith efforts to accommodate Plaintiff. Defendant postponed the elimination of Plaintiff's shift to consider alternatives, gave Plaintiff an opportunity to meet with various supervisors to discuss alternatives, and offered Plaintiff a position, with the same title and pay, that did not have a Sunday shift. Second, Defendant would have incurred more than a de minimis cost had it accommodated Plaintiff by allowing him to work a non-Sunday shift in the Bacti group. Following the promotion of Patel, Defendant needed to eliminate Plaintiff's shift, as opposed to Patel's, in order to have an employee conduct essential daily testing on Sunday. Had Defendant accommodated Plaintiff by allowing him to keep his exact same position during his same shift, Defendant would have needed to hire or train another individual to conduct the required daily testing on Sunday. The FEHA does not mandate that kind of costly accommodation. Ultimately, Plaintiff mistakenly equates accommodation with appeasement. Defendant's failure to appease Plaintiff's request to not work the Sunday shift does not mean Defendant failed to accommodate Plaintiff's request. Defendant's good faith engagement in the interactive process as well as its showing of an undue hardship satisfy Defendant's burden here.
Plaintiff's counsel at hearing argued that Plaintiff had provided substantial evidence of both a failure to accommodate and religious discrimination, because Defendant purportedly did not follow its own policy (Pl.'s Ex. 5) for engaging in the interactive process. However, Defendant's policy does not mandate written documentation to confirm the steps taken during the interactive process. No evidence cited by Plaintiff shows any failure to follow any mandatory internal company procedure. Accordingly, Plaintiff's argument lacks merit.
In addition, not only does Plaintiff's claim fail on the aforementioned grounds, but the Court further acknowledges that Plaintiff failed to make a good faith effort to explore alternatives. Plaintiff admittedly did not give due consideration to the position in the EM group with the same title and pay and did not consult Inside Advantage for other available job openings. Plaintiff's steadfast insistence that he keep his same position in the same department during the same shift, and not be required to support the reasonable business needs of Defendant, wholly negates any claim for failure to accommodate.
C. Retaliation
Lastly, a claim for retaliation under the FEHA too involves a burden-shifting analysis. "To establish a prima facie case of retaliation, a plaintiff must show that she engaged in a protected activity, that she was thereafter subjected to adverse employment action by her employer, and there was a causal link between the two." Fisher v. San Pedro Peninsula Hosp., 214 Cal. App. 3d 590, 614 (Cal. Ct. App. 1989). A causal link may be inferred through circumstantial evidence that the employer learned of the protected activity and took the adverse employment action shortly thereafter. Id. Where a plaintiff meets his initial burden, the burden shifts to the employer to articulate a legitimate reason for the adverse employment action. Hersant v. Dep't of Soc. Servs., 57 Cal. App. 4th 997, 1004-05 (Cal. Ct. App. 1997). Where an employer offers such evidence, the burden ultimately shifts back to the plaintiff to offer "substantial evidence" (1) that the employer's cited reason was untrue or pretextual such that the actual reason for the adverse employment action was retaliation; (2) that the employer acted with a retaliatory animus; or (3) a combination of the two showing that the employer intended to retaliate. Id. Failure to satisfy that burden will result in an award of summary judgment in the employer's favor.
In this case, Plaintiff claims that he engaged in protected activity by filing his two DFEH claims, that he was subjected to adverse employment action when Defendant gave him performance reviews stating that he "partially meets" expectations, and that these adverse employment actions occurred "within weeks after Plaintiff reported discrimination." (Opp'n 15.) Although it is unclear whether these adverse employment actions truly occurred "within weeks" after Plaintiff filed his DFEH claims, even assuming that Plaintiff has stated a prima facie case, Defendant has met its burden of articulating a legitimate reason for the adverse employment actions. As stated, Defendant provided adequate evidence that Plaintiff received a lower rating in his performance reviews due to documentation errors, failure to meet certain goals, lack of initiative, and Exception Reports.
Accordingly, the burden shifted back to Plaintiff to provide substantial evidence that Defendant's proffered reason for these adverse employment actions was a pretext for retaliation or motivated by a retaliatory animus. For many of the same reasons previously stated, Plaintiff fails to provide substantial evidence of any pretext or animus. The gravitas of Plaintiff's argument is temporal proximity — that Plaintiff filed his DFEH charges and then received the performance reviews at issue. Even assuming there is temporal proximity, which is unclear from the record, such evidence is wholly insufficient to satisfy Plaintiff's heavy burden of providing substantial evidence of intentional retaliation. McRae v. Dep't of Corr. Rehab., 142 Cal. App. 4th 377, 388 (Cal. Ct. App. 2006) (stating that while temporal proximity may be adequate to establish a causal link, such evidence only satisfies a plaintiff's initial burden of establishing a prima facie case of retaliation). Plaintiff fails to provide any evidence that "the presumptively valid reason for [Defendant's] action was in fact a coverup" for unlawful retaliation. Id. Accordingly, Plaintiff fails to carry his burden, therefore entitling Defendant to summary judgment on the retaliation claim.
VI. CONCLUSION
For these reasons, the Court GRANTS the Motion (Docket No. 22) and grants summary judgment on all claims for Defendant.
IT IS SO ORDERED.