Scott v. Cent. Cal. Faculty Med. Grp., Inc.

Full title: DIANA SCOTT, Plaintiff and Appellant, v. CENTRAL CALIFORNIA FACULTY…

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Date published: Mar 29, 2018

No. F073260 (Cal. Ct. App. Mar. 29, 2018)

Opinion

F073260

03-29-2018

DIANA SCOTT, Plaintiff and Appellant, v. CENTRAL CALIFORNIA FACULTY MEDICAL GROUP, INC., Defendant and Respondent.

Wagner, Jones, Kopfman & Artenian and Andrew B. Jones for Plaintiff and Appellant. Epstein Becker & Green, Steven R. Blackburn, Matthew Goodin and Elizabeth J. Boca for Defendant and Respondent.

FRANSON, Acting P.J.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14CECG01319)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Alan M. Simpson, Judge. Wagner, Jones, Kopfman & Artenian and Andrew B. Jones for Plaintiff and Appellant. Epstein Becker & Green, Steven R. Blackburn, Matthew Goodin and Elizabeth J. Boca for Defendant and Respondent.

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Plaintiff alleged her employment was terminated in retaliation for internally reporting potentially unlawful actions by another employee. Her complaint alleged claims for (1) wrongful discharge in violation of public policy, (2) retaliation in violation of Labor Code section 1102.5,¹ and (3) employment discrimination related to age and sex. Her employer filed a motion for summary judgment, contending plaintiff's history of aggressive and abusive handling of staff was a legitimate reason for her discharge and plaintiff had failed to present substantial evidence that this legitimate reason was a pretext for a retaliatory or discriminatory motive. The trial court granted the motion and plaintiff appealed.

1 All unlabeled statutory references are to the Labor Code.

We conclude the trial court correctly granted summary adjudication of the causes of action claiming retaliation in violation of section 1102.5 and employment discrimination based on age and sex. In contrast, we conclude triable issues of material fact exist for alleged wrongful discharge in violation of public policy. That cause of action presents two main questions. First, we conclude plaintiff's allegations of forgery and fraud adequately identified a substantial and fundamental public policy that would be thwarted by allowing her employer to discharge her for internally reporting actions that might be forgery or fraud. Second, we conclude a triable issue of material fact exists as to causation—specifically, whether retaliation for plaintiff's internal report was a substantial motivating reason for her discharge. Despite the legitimate reasons for the discharge presented by the employer, plaintiff has produced sufficient evidence of pretext or retaliatory motive.

We therefore reverse the judgment and remand for further proceedings on the cause of action for wrongful discharge in violation of public policy.

FACTS

Medical Group

Defendant Central California Faculty Medical Group, Inc. (Medical Group) operates a multi-specialty medical practice affiliated with UCSF Fresno. In February 2013, Medical Group operated 16 medical offices in Fresno. Each medical office offered a different medical specialty (i.e., practice area) and was designated a "University Center of Excellence" (UCOE). Within the organization, the UCOE medical offices are known as practice sites. The physicians and nonphysicians in these practice sites are employees of Medical Group. The sites employed about 70 physicians and 150 administrative and clerical staff. Personnel

Karl Van Gundy, M.D., has been Medical Group's medical director and its president/chairman of the board of directors since 2010. At the time relevant to this case, Michael Peterson, M.D., was the department chair of medicine for Medical Group and Ian Johnson, M.D., was the division chief of neurosurgery. Joyce Fields-Keene has been the chief executive officer of Medical Group since 1994.

In late 2012, as part of an internal reorganization, Medical Group created the position of chief operating officer for the UCOE, a position that reported directly to the chief executive officer. Medical Group hired JoEllyn Trad to fill the chief operating officer position. In October 2012, Trad began work and held the position until she was fired in April 2013.²

2 Dr. Van Gundy testified the reasons for Trad's discharge were that she made decisions that were not in the best interests of the company, did not work well with others, made factual misstatements to medical providers, and tried to pit one person against another. Also, Dr. Van Gundy did not regard Trad as a credible person because Trad did not make full statements on what she was talking about, left out details, and talked around things. Dr. Van Gundy testified he formed this opinion in 2012 and 2013.

From September 2008 until February 1, 2013, plaintiff Diana Scott was employed by Medical Group as one of two directors of business operations for its UCOE practice sites. The other co-director was Debra J. Maney. The co-directors were responsible for hiring, policies, procedures, finances and other matters pertaining to the practice sites. Each co-director was assigned about half of the practice sites. The assignments were based on need, the interest of the directors, and a desire to divide the labor proportionately. When Scott was hired, the co-directors reported directly to Fields-Keene, the chief executive officer. After the reorganization and hiring of Trad as chief operating officer, both of the directors of the UCOE practice sites reported directly to Trad.

In October of 2012, after Trad was hired, the neurosurgery practice site was removed from Scott's responsibilities at the request of Dr. Johnson, and Trad was given responsibility for overseeing the practice site. The parties dispute Dr. Johnson's motives for the request and whether he did not want Scott in his practice site or he wanted the site to have more autonomy. The neurosurgery practice was described by the chief executive officer as particularly important to Medical Group "because of its prestige within the medical community and the large amount of revenue that it generates." Scott's Performance

The record contains two five-page employee performance reviews for Scott. The reviews covered from October 2009 through September 2010 and the subsequent 12-month period. A positive portion of the review Scott signed on October 22, 2010, stated:

"Diana takes responsibility for projects and duties. She meets the ob[j]ectives of the project or assignment in a timely efficient manner. Diana and Debbie [Maney] have developed a good working relationship to address all issues associated with the UCOE practices and crosscover for each other. They have effectively been able to manage all the offices. Diana has excelled at coordination and oversight of the Neuroscience Center practices, addressing issues as they arise with staff and physicians. Diana has proven herself by being capable of handling many projects and responsibilities. She participates in Leadership Team meetings and provides valuable input. [¶] ... [¶] Diana is very professional with business partners and associates and understands these relationships are important to accomplish common goals, such as the neuroscience center."³

3 The exact same language appeared in the next year's review, except the sentence about participation in team meetings was removed and Scott was advised she "should be more attentive to the discussion," should make every effort to attend the meetings, should be on time, and should not be on her Blackberry or phone during meetings. Scott signed the performance review for October 2010 through September 2011 in February 2012.

A negative portion of the reviews for both years addressed how Scott interacted with some managers and staff, stating:

"Diana has been counseled on her direct, demanding and p[er]ceived aggressive approach with some of the management team and staff. This is an ongoing issue that needs her constant reinforcement to be a good team player and not alienate managers and staff. Dealing with employee discipline issues needs further development and input from HR director to assure [Medical Group] is not exposed to potential staff/labor issues, I can't reinforce enough the need to have good working relationship with her peers and the need to build those relationships with trust and respect."

Generally, Medical Group followed a progressive discipline procedure under which employees who violated rules and procedures were told about their violations and given an opportunity to correct their errors.

In 2010, Danette Owens, an office manager of a practice site complained about Scott being rude, aggressive and yelling at her, and Scott not supporting her in her role as office manager. Brenda DeCosta, the director of human resources for Medical Group from February 2007 to September 2013, participated in the investigation of Owens's complaint. DeCosta took the results of her investigation of Owens's complaint to Fields-Keene, who told DeCosta that she would handle it. Outside of the references in Scott's performance reviews, DeCosta did not know what action Fields-Keene took to handle the matter. Except for statements in her performance review, Scott was not written up for her treatment of Owens. WebmedX System

In mid-2012, Medical Group began to transition from paper charts and to implement a web-based dictation system with the brand name "WebmedX." WebmedX allows physicians to call a phone number and dictate their notes. WebmedX transcribes the notes and sends an electronic copy back to Medical Group using the internet. Doctors, using their password, could access the WebmedX system on a computer and review the electronic copy of their transcribed reports. They could make changes to the reports on their computer. Once the doctors had finished reviewing and revising the reports, they could push a sign and print button that would cause the report to be (1) signed electronically, (2) printed out, and (3) automatically sent by electronic fax to the office that referred the patient. The parties dispute whether hitting the sign and print button always automatically faxed a version to the referring office. (See fn. 5, post.) The version of the report printed at Medical Group was put into the file.

Linda Banda has been the office manager of Medical Group's neurosurgery practice site since October 2012. During the transition to WebmedX, she observed numerous problems in making the change, which included inadequate training for physicians and staff on how to operate the system. Banda stated that the problems with WebmedX resulted in some practice sites, including neurosurgery, accumulating significant numbers of reports that had been dictated but not reviewed or approved by the physician. In late 2012 and early 2013, Banda explored ways to reduce the backlog of unapproved reports. Banda stated that on January 21, 2013, "I was printing out the unfinalized reports so the physicians could review and approve them in hard copy as they were accustomed to doing in the past. I was not approving the content of the reports myself. I did not know that printing the reports was a problem."⁴ E-Signing Problem

4 Banda's declaration did not state when she first started printing reports. A person employed as a medical assistant at the time testified in her deposition that the printing of reports had been going on for at least a couple of days.

On January 21, 2013, Scott was told by another employee that Banda was using physician passwords, electronically signing physician names to medical reports, and electronically sending those reports to referring doctors. Scott phoned Banda and asked Banda to come to Scott's office. The first question Scott asked was whether Banda was signing the doctors' dictation and Banda answered "yes." Scott told Banda that what she was doing was illegal and there were serious repercussions, which might have included Banda being fired.

In Banda's account of the conversation, Scott asked if Banda knew that once she signed the dictations they were automatically faxed to the referring providers and Banda answered "no."⁵ Scott responded by saying, "Don't give me that, you have been in the medical field for way too long not to know the process." When Banda said she had not been trained, Scott replied that she should have known better and, because Scott was not Banda's boss, Scott would report the matter to Trad. During her deposition, Banda recalled Scott's words "were very harsh and very threatening," although Scott did not threaten to get Banda fired. The parties dispute whether Banda left Scott's office crying.

5 There is a material factual dispute about whether pressing the sign and print button always faxed a copy to the referring physicians. Medical Group asserts: "Sometimes reports were faxed when printed, and sometimes they were not." Medical Group does not explain how the WedmedX system determined which electronically signed and printed report to fax and, after the fact, whether it could determine if a particular report had been faxed. Consequently, there is a dispute over whether Banda's pressing the sign and print button resulted in reports being faxed automatically to referring physicians.

In her deposition, Scott described the meeting with Banda as follows:

"[Banda] came down to my office. I asked her what was going on, that I had heard that this was happening. She agreed that it was happening. She was definitely using their passwords and signing their dictation. [¶] I told her to stop immediately. It was illegal. Basically ... she said that they were refusing to sign, the physicians. They are challenging. They had hundreds of back dictation for the last six months, which can affect patient care. But anyway, I asked her to stop. She continued to say how they - difficult it was and that they weren't doing it.

"I told her [Trad] was going to handle it. And basically, in short, at the end, I got ahold of [Trad] or [Trad] got ahold of me, I think. I sent an e-mail. [Banda] went back to ... her office, ceased activity. She agreed she wasn't going to do it anymore."

Scott then sent an email to Trad, Charlotte Stoffel-Quinn (Medical Group's director of compliance), and Dawn Turner (Medical Group's director of billing) about the dictation in the neurosurgery practice site. The email referred to clearing outstanding dictation and stated the neurosurgery practice site had approximately 878 outstanding. The last paragraph of the email stated:

"The staff on the floor is stating that the Neurosurgeons have refused to review and sign this dictation and Linda Banda had received access to their passwords, has been proofing and e-signing this dictation for them and thus releasing them to referring providers via autofax. This was confirmed by [Banda] just now. She is aware the sharing of passwords and Esigning for an MD are against company policy and it is a potential reimbursement issue. I have asked her to stop and that you would follow up."

The director of compliance looked into the matter, ran some electronic reports and did not investigate further. It could not be determined from these electronic reports whether Banda was the person e-signing for doctors. The director of compliance testified that signing a doctor's name electronically to a doctor's report by someone other than the doctor was a compliance problem. The parties disagree about what was said in a telephone conversation between the director of compliance and Scott that occurred shortly after Scott sent the email. For example, Scott testified that the director of compliance said Banda should be fired.

The director of billing understood that the electronic signing of the doctor's report constituted completion of documentation for purposes of billing Medicare. Consequently, when the director of billing read Scott's email, she understood that the reports not signed by the doctor could not be properly billed because the reports had not been completed. Dr . Johnson's Reaction

After Scott's confrontation of Banda, Banda discussed the matter with Dr. Johnson, the division chief of neurosurgery, who previously had instructed Banda to press the sign and print button. An employee who saw Dr. Johnson and Banda talking in the hallway heard Banda say Scott's name and heard Dr. Johnson say, "It's really none of her business. I'll take care of this." Dr. Johnson also told Banda she did not have to speak with Scott and did not have to answer any of her questions.

Dr. Johnson and Banda went to Trad's office. Dr. Johnson told Trad that he was very upset that Scott had berated Banda to the point of tears. Dr. Johnson told Trad that he wanted Trad to tell Scott to stay away from the neurosurgery practice site.

When Trad spoke with Scott, Trad was upset and told Scott that Dr. Johnson was on the warpath as a result of Banda going to him and being upset. Trad asked Scott to explain the dictation process to her, as Trad did not understand the process and wanted to know about it because of her oversight responsibilities. Decision to Fire Scott

Prior to the January 21, 2013, incident, Trad had wanted to fire Scott. Fields-Keene resisted Trad's suggestion, directed that Scott be given a formal corrective action plan,⁶ and asked Trad to collaborate with the human resources department to prepare a written document to be given to Scott for that purpose. A draft of a competency corrective action plan was prepared, but was not finalized and delivered to Scott. The draft plan proposed placing Scott "on a 90 day probationary period" during which she was expected to demonstrate immediate and on-going improvement on specific, enumerated matters such as "overly assertive" confrontations with subordinates, colleagues and supervisors.

6 Such a plan would have been consistent with the general policy of progressive discipline.

After Scott's confrontation of Banda, Dr. Peterson, Dr. Van Gundy, Fields-Keene and Trad held a meeting in a third floor conference room for the purpose of discussing Scott. The parties dispute whether, during the meeting, Trad disclosed a new incident of bad behavior by Scott—that is, one that occurred after the confrontation with Banda—or whether Trad was referring to Scott's confrontation of Banda. This "new incident" is discussed in further detail in part III.D.6., post. The parties agree that Trad recommended Scott be discharged. The doctors agreed with Trad's recommendation, but Fields-Keene did not.

On February 1, 2013, around midday, Scott was told of Medical Group's decision to terminate her employment. Trad and Karen Rushing from the human resources department met briefly with Scott in Scott's office to inform her of the decision. Scott testified that the reasons she was given was "M.D. feedback and communications." Scott had not been given a write-up before she was fired.

PROCEEDINGS

Plaintiff's Complaint

In May 2014, Scott filed a complaint against Medical Group, which is the operative pleading in this appeal. Her complaint stated causes of action for (1) wrongful termination in violation of public policy, (2) retaliation in violation of section 1102.5, and (3) violations of Government Code section 12940, which is part of the California Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.). Among other things, the third cause of action alleged Scott's work was subject to heightened scrutiny because she was an older, single, female employee and Scott was singled out for selective discipline. Motion for Summary Judgment

Medical Group moved for summary judgment. As to each of the three causes of action, Medical Group raised the same two issues. First, Medical Group argued Scott "cannot establish a prima facie case of protected activity." Second, Medical Group argued it had established a legitimate, nonretaliatory reason for its termination of Scott's employment and she "cannot establish this reason is a 'pretext' for an unlawful motive." Trial Court's Decision

In December 2015, following the issuance of a tentative ruling, the trial court held a hearing on the motion for summary judgment. The next day, the court issued a minute order adopting its tentative ruling to sustain some evidentiary objections, overrule the others, and grant the motion for summary judgment.

The court concluded the cause of action for wrongful discharge in violation of public policy should be summarily adjudicated on the grounds that (1) Scott did not engage in any protected activity—that is, she had not established her termination violated any public policy—and (2) Medical Group had met its burden of presenting evidence of a legitimate reason for her discharge and Scott had not met her burden of producing substantial evidence that the proffered reason for her discharge was pretextual.

As to the second cause of action alleging Scott's discharge was retaliatory and violated section 1102.5, the trial court concluded it should be summarily adjudicated on two grounds. First, Scott had not engaged in conduct falling within the scope of section 1102.5. Second, Scott had failed to produce substantial evidence of pretext.

As to the third cause of action, the court concluded Scott had not alleged retaliation of a type prohibited by the FEHA and her allegations that she was treated differently than male employees was not supported by evidence creating a triable issue of material fact. The court described the evidence that Scott had presented, noted some of the deposition pages she had failed to present, and concluded her evidence did not create a triable issue of fact regarding age, sex or marital status. As to Scott's evidence that surgeons regularly yelled at staff, the court stated there was no indication that they were males.

In January 2016, the trial court filed a judgment in favor of Medical Group. Scott timely appealed.

DISCUSSION

I. BASIC PRINCIPLES GOVERNING SUMMARY JUDGMENTS

A. Triable Issues of Material Fact

A motion for summary judgment "shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) A moving party is entitled to judgment as a matter of law when it establishes by admissible evidence that the "action has no merit." (Code Civ. Proc., § 437c, subd. (a)(1).)

Generally, a defendant moving for summary judgment meets this burden by presenting evidence demonstrating that one or more elements of the cause of action cannot be established or that there is a complete defense to the action. (Code Civ. Proc., § 437c, subds. (o), (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849-850, 853-854 (Aguilar).) Once the defendant makes this showing, the burden shifts to the plaintiff to show a triable issue of material fact exists as to that cause of action or defense. (Code Civ. Proc., § 437c, subd. (p)(2); see Aguilar, supra, at p. 850.) There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. (Aguilar, supra, at p. 845.)

These basic principles governing summary judgment motions have been refined when the motion is pursued by an employer accused of employment discrimination or retaliation. The specific principles applied to an employer's motion for summary judgment addressing the element of causation (i.e., motive) are set forth in part III.D.1., post.

B. Standard of Review

Appellate courts independently review an order granting summary judgment. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768 (Saelzler); Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 (Guz).) In performing this independent review, appellate courts apply the same three-step analysis as the trial court. (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1602 (Brantley).) First, the court identifies the issues framed by the pleadings. Second, the court determines whether the moving party has established facts justifying judgment in its favor. Third, if the moving party has carried its initial burden, the court decides whether the opposing party has demonstrated the existence of a triable issue of material fact. (Id. at p. 1602.)

Appellate and trial courts performing this three-step analysis consider the evidence in a light favorable to the nonmoving party, liberally construing that party's evidentiary submission while strictly scrutinizing the moving party's own showing and resolving any evidentiary doubts or ambiguities in the losing party's favor. (Saelzler, supra, 25 Cal.4th at pp. 768-769.) Appellate courts do not consider evidence to which objections have been made and properly sustained. (Code Civ. Proc., § 437c, subd. (c); Guz, supra, 24 Cal.4th at p. 334.) II. RETALIATION IN VIOLATION OF SECTION 1102.5

Scott's second cause of action is our starting point because it presents issues that are comparatively simple and it provides background information useful in reviewing Scott's other claims. The second cause of action alleges the termination of Scott's employment violated section 1102.5, one of the California statutes that protects whistleblowers.⁷ In particular, Scott alleges she opposed and complained about conduct of a Medical Group employee that was unlawful under state and federal laws prohibiting fraud and her complaint about the unlawful conduct was a motivating reason for her discharge.

7 Others include the California Whistleblower Protection Act, Government Code sections 8547 through 8547.15; Business and Professions Code section 2056; Education Code sections 44110 through 44114; Health and Safety Code section 1278.5; and Labor Code section 98.6.

A. Statutory Provisions

In general terms, subdivision (b) of section 1102.5 prohibits retaliation against an employee for disclosing a violation of law. Subdivision (c) prohibits retaliation against an employee for refusing to participate in an activity that would result in a violation of law. When Scott was discharged in February 2013, the operative version of section 1102.5 read:

"(b) An employer may not retaliate against an employee for disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation.

"(c) An employer may not retaliate against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation."⁸ (Stats. 2003, ch. 484, § 2, p. 3517; see Mize-Kurzman v. Marin Community College Dist. (2012) 202 Cal.App.4th 832, 844, fn. 2.)

8 The current version of section 1102.5 covers a broader range of disclosures, including internal reporting by an employee in a nongovernmental entity:

"(b) An employer ... shall not retaliate against an employee for disclosing information ... [1] to a government or law enforcement agency, [2] to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or [3] for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee's job duties.

"(c) An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation." (Italics added.)

The version of the statute in effect at the time of employee's discharge is the version applied in subsequent litigation. (See Diego v. Pilgrim United Church of Christ (2014) 231 Cal.App.4th 913, 927 [version enacted in 2003 applied to employee's discharge in 2011] (Diego).) Stated another way, the amendments adopted since Scott's discharge are not retroactive.

B. Employee Disclosures—Scope of Protection

The trial court determined Scott could not prove a violation of section 1102.5, subdivision (b) because it was undisputed that Scott never made any complaint to a party outside Medical Group and, also, she was never instructed not to complain to a government or law enforcement agency. The trial court correctly interpreted and applied subdivision (b) of section 1102.5.

First, Scott did not allege she disclosed the potentially illegal activity to a governmental entity or a law enforcement agency. Second, she has presented no evidence of such a disclosure. Third, as to Scott's allegations and evidence that she complained internally about a potentially illegal practice, the statute in effect at the time of her discharge did not protect against retaliation for internal disclosures. (See Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 77 [version of § 1102.5 applicable in 1991 did not protect plaintiff who reported his suspicions of unlawful practices directly to his employer] (Green).) Therefore, the claim that Medical Group violated subdivision (b) of section 1102.5 lacks merit and summary adjudication of that specific claim was appropriate.

C. Refusal to Participate in Unlawful Activity

1. Scott's Contentions

Scott contends she put an end to illegal conduct by ordering Banda to stop placing electronic signatures on reports. In Scott's view, putting a stop to unlawful activity is "refusing to participate" for purposes of section 1102.5, subdivision (c). Consequently, Scott believes she falls within the protections of subdivision (c). Scott also contends her failure to stop the unlawful activity would have been the equivalent of participating in it because she had management responsibility for staff.

Medical Group contends Scott had no duty to stop Banda's actions because Scott had no management responsibility for the neurosurgery practice area. In response, Scott's argues the deposition testimony of Maney, the other co-director, supports a finding that employees in their position had a duty to stop such misconduct.

2. Trial Court's Determinations

The trial court considered and rejected Scott's contention that not stopping Banda would have been the same as participating in the activity. The court stated there was no evidence Scott was ordered or expected to participate in the printing and signing of doctor reports—the potentially unlawful activity—and Scott did not have actual authority over the department where the activity was occurring. As a result, the court concluded Scott had not engaged in conduct protected by subdivision (c) of section 1102.5.⁹

9 As a separate and distinct ground for eliminating Scott's second cause of action, the court concluded Medical Group had established legitimate reasons for terminating Scott's employment and Scott had failed to produce substantial evidence of pretext. The merits of the second cause of action can be resolved without addressing this alternate ground.

3. Scope of Scott's Responsibilities

Undisputed material fact (UMF) No. 46 in Medical Group's separate statement of undisputed facts asserts:

"One of the [practice] sites taken away from Ms. Scott's responsibility was the Neurosurgery practice, which was removed from her responsibility in October 2012. As of January 21, 2013, Ms. Scott still had no responsibility for the management of the Neurosurgery practice site."

Scott's separate statement in support of her opposition to the motion for summary judgment responded to this UMF by stating: "Undisputed but immaterial." Scott also did not dispute UMF No. 4, which stated chief operating officer Trad "had responsibility for overseeing the Neurosurgery practice site" on January 21, 2013. In addition, Scott did not dispute UMF No. 8, which stated she had turned the matter over to Trad because it was Trad's area to cover.

Scott's arguments that her actions amount to "refusing to participate in an [unlawful] activity" for purposes of subdivision (c) of section 1102.5 are based on her assertion of fact that, as a co-director, she had a management responsibility to stop the unlawful conduct. We have reviewed the pages of Maney's deposition cited by Scott to support this assertion of fact about the scope of her management responsibility. No testimony explicitly stated a co-director had management responsibility for staff in practice areas to which that co-director was not assigned. The testimony did not address this issue and, moreover, it is not reasonable to infer from Maney's answers that such a responsibility existed. Maney's testimony that she would have reported Banda's activity, even when viewed in the light most favorable to Scott, does not provide reasonable support for the finding that Scott had management responsibility over staff in the neurosurgery practice area. Specifically, Maney did not testify that her hypothetical reporting of Banda was based on her understanding of her responsibilities as co-director. Therefore, her answer might have been based on her business judgment about what was in the best interest of her employer. Consequently, we reject Scott's argument that her conduct was a refusal to participate in unlawful activity for purposes of subdivision (c) of section 1102.5.

This conclusion forecloses any need to consider another question of statutory construction involving the phrase "refusing to participate in an activity." (§ 1102.5, subd. (c).) That phrase was interpreted in Edgerly v. City of Oakland (2012) 211 Cal.App.4th 1191, at pages 1206 through 1207, a case not cited in the parties' appellate briefs. In Edgerly, an administrator referred an expense reimbursement request by the mayor to the city attorney's office without telling that office, or anyone else, she believed the request violated any statutes. (Id. at p. 1206.) The administrator argued her actions amounted to a refusal to participate in alleged misconduct by the mayor and, therefore, were protected under subdivision (c) of section 1102.5. (Edgerly, supra, at p. 1207.) The court rejected this view of the statute and concluded her actions did not constitute a refusal to participate because her actions were consistent with, if not required by, her general job description and duties. (Id. at p. 1207.)

In sum, the trial court properly granted Medical Group's request for summary adjudication of Scott's second cause of action alleging retaliation in violation of section 1102.5. III. WRONGFUL DISCHARGE IN VIOLATION OF PUBLIC POLICY

A. Basic Principles

When a contract of employment that does not specify the length of employment or limit the grounds for dismissing the employee, the employer may terminate the contract at will. (Lab. Code, § 2922; see Ross v. RagingWire Telecommunications, Inc. (2008) 42 Cal.4th 920, 931-932 (Ross).) This rule is subject to a common law exception that recognizes a tort action for wrongful discharge where the termination of employment violates¹⁰ a fundamental public policy of the state. (Ross, supra, at p. 932; Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 176-179 (Tameny).)

10 In this context, the verb "violates" is synonymous with "contravenes," "thwarts" or "actually implicates." In Tameny, the court referred to decisions that recognized "a common law tort action for wrongful discharge in cases in which the termination contravenes public policy." (Tameny, supra, 27 Cal.3d at p. 178, italics added.) In Turner v. Anheuser-Bush, Inc. (1994) 7 Cal.4th 1238 (Turner), the court stated that "Turner's failure to identify a statutory or constitutional policy that would be thwarted by his alleged discharge dooms his cause of action" for constructive wrongful discharge in violation of public policy. (Id. at p. 1257, italics added.) In Green, supra, 19 Cal.4th 66, the court referred to "a discharge that actually implicated public policy." (Id. at p. 75, italics added.)

A cause of action for wrongful discharge in violation of public policy is established by proving (1) the plaintiff was employed by the defendant, (2) the defendant discharged the plaintiff, (3) the discharge was substantially motivated by a reason that violates public policy, and (4) the discharge caused the plaintiff harm. (CACI No. 2430; see Yau v. Allen (2014) 229 Cal.App.4th 144, 154 (Yau).) Here, Medical Group's motion addressed the third element and argued Scott could not demonstrate her actions were protected by a public policy of the requisite importance or, alternatively, she could not establish the necessary causal link (i.e., motive) between her discharge and the public policy.

First, Medical Group's challenge as to the existence of a public policy of the requisite importance presents a legal question that initially is decided by the trial court and, on appeal, is subject to de novo review. (Carter v. Escondido Union High School Dist. (2007) 148 Cal.App.4th 922, 929 (Carter).) The legal (as opposed to factual) nature of this question is confirmed by CACI No. 2430's directions for use, which state: "The judge should determine whether the purported reason for firing the plaintiff would amount to a violation of public policy. [Citations.] The jury should then be instructed that the alleged conduct would constitute a public-policy violation if proved." When deciding whether a public policy of the requisite importance exists, courts apply a four-part test. The public policy must be (1) delineated in either constitutional or statutory provisions; (2) "public" in the sense that it inures to the benefit of the public rather than serving merely the interests of the individual; (3) well-established at the time of the discharge; and (4) fundamental and substantial. (Ross, supra, 42 Cal.4th at p. 932.)

Second, Medical Group's challenge as to causation (i.e., motive) addresses the link between Scott's discharge and the violation of public policy. The existence of the required causal connection is determined by the trier of fact by applying the "substantial motivating reason" test used in CACI No. 2430. (See Directions for Use, CACI No. 2430; Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232 (Harris) [jury must determine "whether discrimination was 'a substantial motivating factor/reason'" for the adverse employment action].) "Substantial motivating reason" is explained in CACI No. 2507 as "a reason that actually contributed to the [discharge]. It must be more than a remote or trivial reason. It does not have to be the only reason motivating the [discharge]." These jury instructions demonstrate the application of the "substantial motivating reason" test to determine whether there is a causal link between the discharge and a violation of public policy generally is a question of fact. However, it is not uncommon for the employer's motivation to be decided as a matter of law at the summary judgment stage. (E.g. King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433-437 [summary judgment for employer affirmed; plaintiff failed to present substantial evidence of causal link between prohibited motivation and his discharge].)

The two main types of prohibited motives are illegal discrimination and retaliation. Here, Scott's first cause of action alleges a retaliatory motive and her third alleges a discriminatory motive. As background, we note retaliatory discharges usually involve four categories of employee conduct: (1) refusing to violate a statute; (2) performing a statutory obligation; (3) exercising a statutory right or privilege, and (4) reporting an alleged violation of a statute of public importance. (Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1090-1091; Yau, supra, 229 Cal.App.4th at p. 155.)

B. Internal Reporting of Violations of Law

1. Public Policy Underlying Section 1102 .5

Our Supreme Court has stated that common law claims for wrongful discharge in violation of public policy must be carefully tethered to statutory or constitutional provisions. (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 889.) Tethering public policy to specific statutory or constitutional provisions (1) avoids judicial interference with the legislative domain and (2) ensures employers have adequate notice of the conduct that will subject them to tort liability for wrongful discharge. (Ibid.)

Scott acknowledges the fundamental public policy she claims was violated by her discharge must be tethered to a statutory provision. One of the statutes she contends establishes the requisite public policy is section 1102.5, the whistleblower provision discussed in part II., ante. Scott contends section 1102.5 recognizes "there is a substantial public policy encouraging employees to report unlawful conduct to the government or the employer."

In our view, the text of section 1102.5 in effect when Scott was discharged in February 2013 demonstrates that the Legislature had yet to adopt the specific public policy of protecting employees who report potentially illegal activity to their employer. As a result, the specific public policy addressing internal reporting cannot pass the four-part test adopted by our Supreme Court. Under that test, the public policy must be (1) delineated in either constitutional or statutory provisions; (2) "public" in the sense that it inures to the benefit of the public rather than serving merely the interests of the individual; (3) well-established at the time of the discharge; and (4) fundamental and substantial. (Ross, supra, 42 Cal.4th at p. 932.) The public policy of protecting employees who internally report illegal activity was not well-established at the time of Scott's 2013 discharge as it had yet to be delineated in a statutory provision. Therefore, that public policy does not satisfy the first and third elements of the test. Stated in another way, the public policy of protecting employees who make internal reports of illegal activity cannot be tethered to the version of section 1102.5 in effect when Scott was discharged. Consequently, we conclude that version of section 1102.5 is not the source of a public policy that can serve as the basis for Scott's claim for wrongful discharge in violation of public policy. Accordingly, the requisite public policy must be tethered to another statutory provision.

2. Need for a Statute Protecting Internal Disclosure

Before we consider other statutory provisions mentioned in Scott's briefing, we address a general argument raised by Medical Center that, if accepted, would significantly limit our review of those other provisions. Medical Center contends: "Where an employee's disclosure of allegedly unlawful conduct is not protected by the statute on which plaintiff bases his public policy discharge claim, the plaintiff's claim for termination in violation of public policy fails even if the employer in fact terminated the employee for making the disclosure." Medical Center cites Carter, supra, 148 Cal.App.4th 922, as support.

We reject this argument. First, Carter is distinguishable. In Carter, a teacher sued a school district for declining to renew his probationary teaching position and alleged a motivating reason for this adverse job action was the teacher's conduct while employed at another school district. (Carter, supra, 148 Cal.App.4th at p. 925.) That conduct consisted of the teacher informing the athletic director at the school that the football coach had suggested to a high school senior that he consume protein shakes containing creatine to gain weight. (Id. at pp. 925-926.) A jury found in favor of the teacher and awarded him damages of approximately $1.2 million. (Id. at p. 927.) The school district appealed and the Fourth District reversed the judgment. (Id. at pp. 928, 936.)

The Fourth District considered whether the school district's liability was tethered to section 1102.5, which it described as "California's general whistleblower statute." (Carter, supra, 148 Cal.App.4th at p. 933.) The court concluded the teacher's disclosure to the athletic director was not protected by section 1102.5 and gave three reasons. First, the information reported did not disclose a violation of a statute, rule or regulation. (Carter, supra, at p. 933.) Second, the teacher's report was not motivated by his belief that a law had been broken. (Ibid.) Third, even if the teacher subjectively believed the coach had violated a law, such a belief was not objectively reasonable because protein shakes containing creatine were not unlawful under either state or federal law. (Ibid.) After setting forth these reasons, the court stated:

"As Carter's disclosure was not protected by California's whistleblower statute, [the school district] was not prohibited from discharging him based on that disclosure. (Foley [v. Interactive Data Corp. (1988)] 47 Cal.3d [654,] 670, ["No enactment expressly requires an employee to report relevant information concerning other employees to his employer, and none prohibits discharge of the employee for so doing"].) (Id. at p. 934.)

Medical Group relies on this quoted language to support its contention. The specific legal question we are addressing here is whether a plaintiff alleging a discharge motivated by the plaintiff's internal disclosure of potentially illegal activity must be expressly protected by a statute for the plaintiff to establish a retaliatory discharge in violation of a fundamental public policy. This specific legal question was not decided in Carter. Instead, the court determined the teacher had not reported a violation of law, did not actually believe a violation of law had occurred, and could not have reasonably believed the coach's recommendation violated a law. (Carter, supra, 148 Cal.App.4th at p. 933.) Consequently, Carter is not authority for the principle that an internal disclosure of potentially illegal activity is protected by a fundamental public policy only if the disclosure itself is expressly protected by statute. (See Riverside County Sheriff's Dept. v. Stiglitz (2014) 60 Cal.4th 624, 641 [it is axiomatic that cases are not authority for propositions not considered].)

The second reason for rejecting Medical Group's argument is that it is contrary to a decision by our Supreme Court. In Green, supra, 19 Cal.4th 66, the plaintiff was a quality control inspector hired by a manufacturer of aircraft components on an at-will basis. (Id. at p. 72.) Beginning in 1990, the plaintiff noticed the manufacturer was shipping airplane parts even though they failed the inspections performed by plaintiff's four-member team. (Id. at p. 73.) Several times over the next two years, the plaintiff objected to supervisory and management personnel about the practice. (Ibid.) The plaintiff made all of his complaints internally—none were made to governmental entities. (Ibid.) After he was discharged, the plaintiff filed a wrongful discharge action, alleging the manufacturer discharged him in retaliation for his complaints about its inspection practices and claiming his internal complaints served the broad public policy favoring aviation safety. (Ibid.) The manufacturer moved for summary judgment, arguing it was entitled to discharge plaintiff even if it was motivated by his objections to its inspection and shipping practices because no statute or constitutional provision specifically prohibited these practices. (Ibid.) The trial court granted summary judgment. (Id. at p. 74.) The Court of Appeal reversed after engaging in independent research, identifying several key federal regulations involving airline safety, and requesting supplemental briefing on whether the regulations could form the basis for the plaintiff's public policy claim. (Ibid.) The Court of Appeal concluded the plaintiff adequately identified several relevant Federal Aviation Administration regulations in his opposition to summary judgment. (Ibid.) The Supreme Court affirmed the judgment of the Court of Appeal. (Id. at p. 90.)

In Green, the Supreme Court defined the issue before it as "whether particular administrative regulations implementing the Federal Aviation Act of 1958 [citation], a public safety statute that created the Federal Aviation Administration (FAA), should be included as a source of fundamental public policy that limits an employer's right to discharge an at-will employee." (Green, supra, 19 Cal.4th at p. 71.) The court reviewed Congress's declaration of the public interest in commercial air safety contained in 49 United States Code section 44701 and quoted the regulatory provision stating the purpose of the FAA-required inspections on aircraft parts was " 'to ensure that each article produced conforms to the type design and is in a condition for safe operation.' (14 C.F.R. § 21.143.(a) (1998).)" (Green, supra, at p. 82.) The court concluded the statutorily authorized regulations effectuated Congress's purpose to ensure commercial airline safety, an important and fundamental public policy. (Ibid.) As a result, the court concluded the public policy was "'tethered to'" statutory provisions as required by its earlier cases. (Id. at p. 72.)

In our view, Green demonstrates that a retaliatory discharge for internal reporting of potentially illegal activity is capable of violating or thwarting an important and fundamental public policy even if the internal reporting itself is not expressly protected by the statute or regulation. This view of Green is not unique. The First District described Green by stating "our Supreme Court affirmed the Court of Appeal's reversal of summary judgment for the employer in a wrongful discharge action based on an employee's internal report to a private employer." (Mize-Kurzman, supra, 202 Cal.App.4th at p. 857, fn. 9, italics added.) Furthermore, our interpretation of Green is compatible with our decision in in Haney v. Aramark Uniform Services, Inc. (2004) 121 Cal.App.4th 623 (Haney), which involved an employee's internal complaints about potentially illegal activity and a refusal by the employee to participate in the employer's alleged practice of overcharging and defrauding customers.

In summary, we conclude retaliatory discharges for internally reporting potentially illegal activity might actually implicate or thwart a fundamental public policy, and the resolution of this question will depend upon the statutory or constitutional provisions involved and the public policies they seek to implement. Restated from another perspective, we reject the view that discharging an employee for internally reporting illegal activity can never thwart or contravene a fundamental public policy tethered to the statute that makes the activity illegal. Based on this view of California law, we turn now to the other statutory provisions identified by Scott her in appellate briefs.

C. Fraud and Forgery

1. Issues Framed by the Pleadings

The first step of the three-step analysis employed to decide motions for summary judgment is the identification of the issues framed by the pleadings, as it is these allegations to which the motion is addressed. (Brantley, supra, 42 Cal.App.4th at p. 1602.) In performing the first step, the trial court noted Scott's arguments that Penal Code provisions against fraud and forgery supplied the requisite fundamental public policy, but declined to analyze those arguments because Scott "did not allege these theories in her complaint [and, therefore,] she cannot rely on them in opposition to the motion for summary judgment." We disagree with this interpretation of the pleadings.

Scott's complaint alleged she discovered Banda was logging into the WebmedX system and "electronically forging doctors' signatures to patient records which by regulation and law were [] required to be reviewed by a doctor and signed within a reason[able] amount of time." Scott alleged: "It is illegal to forge a document to obtain payment as that is a false claim." She also alleged the conduct of Medical Group in terminating her employment for complaining of, and objecting to, the manner in which Medical Group "was submitting forged medical records for payment, billing, is a wrongful termination in violation of the public policy of the State of California." (Italics added.) Paragraph 4 of the complaint alleged Scott sued "to remedy retaliation against her for activities protected under False Claims Act 31 USC Sec. 3721, 3729 et. Seq.; Health and Safety Code Sec. 1278.5 et. Seq.; 45 CFR 74.51 et seq.; California Labor Code Sec. 1102.5 et. Seq.; 41 USC Sec. 4712 et. Seq."

During discovery, Medical Group served Scott with form interrogatories for employment law matters and checked the box for Interrogatory No. 205.1, which asked if Scott contended Medical Group took adverse employment action against her in violation of public policy and, if so, asked her to identify the constitutional provision, statute, regulation, or other source of public policy that she contends was violated. Scott's September 2014 response referred to retaliation against her for activities protected under the statutes and regulations cited in paragraph 4 of her complaint. Scott's complaint and her discovery responses did not refer to any provisions of the Penal Code.

Scott's December 2015 memorandum of points and authorities in support of her opposition to Medical Group's motion for summary judgment addressed her claim for wrongful termination in violation of public policy by asserting there were multiple public policies available to Scott. Among the statutes cited in Scott's opposition were Penal Code sections 487, 470 and 471.5,¹¹ which relate to fraud and forgery.

11 Penal Code section 470 is a forgery statute of broad application, while Penal Code section 471.5 is limited to medical records. Specifically, Penal Code section 471.5 provides that "[a]ny person ... who, with fraudulent intent, creates any false medical record, is guilty of a misdemeanor."

The foregoing procedural history presents the following questions on appeal. First, are plaintiffs required to specifically plead the code and section number of each statutory provision that delineates a public policy thwarted or contravened by the retaliatory discharge? Second, if specific pleading of the statutory provision's code and section number is not required, did Scott's complaint adequately plead a violation of public policies against forgery and fraud and, thus, allow her to oppose the motion for summary judgment by relying on the Penal Code sections addressing forgery and fraud.

As to the first question, we conclude California law does not require a plaintiff to specifically plead the code and section number of each statutory provision that delineates a public policy allegedly thwarted or contravened by the plaintiff's discharge. (See generally, Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 47 ["fraud is the only remaining cause of action in which specific pleading is required to enable the court to determine on the basis of the pleadings alone whether a foundation existed for the charge"].) Therefore, Scott's arguments based on the Penal Code sections that make forgery and fraud illegal are not barred by her failure to list those specific sections in her complaint.

In Green, our Supreme Court considered the employer's argument that the plaintiff should have been required "to specify his claim's statutory basis in his original complaint, or, at the very least, in his responses to discovery." (Green, supra, 19 Cal.4th at p. 83.) The plaintiff's allegations referred to "a broad public policy favoring aviation safety" and cited the entire Federal Aviation Act of 1958, but cited no specific statute or constitutional provisions to support his claim. (Green, supra, at pp. 73-74.) Our Supreme Court concluded "the Court of Appeal properly held that plaintiff had met his burden to provide the specific statutes and regulations on which he based his claim" and referred to the Court of Appeal's conclusion that the plaintiff had adequately identified several relevant FAA regulations in his opposition to summary judgment. (Id. at p. 84.) Based on this determination, we conclude the allegations in a plaintiff's complaint must refer to the public policy thwarted by the retaliatory discharge (such as aviation safety), but the pleading need not cite specific statutory, regulatory or constitutional provisions.

Next, we consider whether Scott's complaint adequately pleaded a violation of public policies against forgery and fraud. Paragraph 5 of Scott's complaint alleged her employment was terminated in violation of public policy and then alleged a motivating factor for her termination was her "prior objections, protests, and complaints that [Medical Group and the unnamed Doe defendants] were illegally, improperly and wrongfully forging, submitting, and seeking payment on fraudulently verified medical records in violation of regulation and statutes." (Italics added.) Paragraph 7 of her complaint alleged "[i]t is illegal to forge a document to obtain payment as that is a false claim." (Italics added.) Paragraph 15 of her complaint alleged Scott opposed and complained about conduct that was unlawful pursuant to "state and/or federal laws prohibiting fraud." (Italics added.) Thus, the complaint repeatedly mentioned forgery and fraud and the illegality of forgery and fraud.¹² Furthermore, the complaint refers to retaliation for reporting forgery and fraud.

12 Forgery and fraud are far from obscure legal concepts. An objectively reasonable person who had read the complaint would not be surprised to learn that forgery and fraud are crimes proscribed by California's Penal Code.

Consequently, we conclude Scott's complaint adequately pleaded a violation of public policy against forgery and fraud. We further conclude Scott timely identified Penal Code sections 487, 470 and 471.5 as the basis for the violation of public policy in her opposition to the motion for summary judgment. Her citation and discussion of those sections in her opposition meant the trial court was not "in the position of having to guess at the nature of the public policies involved." (Turner, supra, 7 Cal.4th at p. 1257.)¹³

13 Contrary to Medical Group's interpretation of Turner, we read this statement as plainly referring to the showing required at the summary judgment stage of the lawsuit. We do not interpret Turner's reference to "citations to specific statutory or constitutional provisions" as establishing a pleading requirement. (Turner, supra, 7 Cal.4th at p. 1257.)

2. Thwarting the Public Policies Relating to Forgery and Fraud

Next, we consider whether any substantial and fundamental public policies underlie Penal Code sections 470, 471.5 and 487 and, if so, whether the retaliatory discharge alleged by Scott violated or thwarted any such policy.

In Haney, the plaintiff alleged a retaliatory discharge because he complained about, and refused to participate in, fraudulent billing practices. (Haney, supra, 121 Cal.App.4th at pp. 641-642.) His complaint referred to the Civil Code provisions relating to fraud and deceit (Civ. Code, §§ 1572, 1709, 1710) and Penal Code section 484 (theft by fraudulent representation). (Haney, supra, at p. 642.) This court applied the four-part test to determine whether the public policies underlying these statutes supported a wrongful discharge claim. Under that test, the public policy implicated by the retaliatory discharge must be (1) delineated in either constitutional or statutory provisions; (2) "public" in the sense that it inures to the benefit of the public rather than serving merely the interests of the individual; (3) well-established at the time of the discharge; and (4) fundamental and substantial. (Haney, supra, 121 Cal.App.4th at p. 642; see pt. II.A., ante.) We stated:

"Where the policy is reflected in a provision of the Penal Code, the first, second and fourth elements are easily met because the Supreme Court has stated that 'an employer's obligation to refrain from discharging an employee who refuses to commit a criminal act ... reflects a duty imposed by law upon all employers in order to implement the fundamental public policies embodied in the state's penal statutes. As such, a wrongful discharge suit exhibits the classic elements of a tort cause of action.'" (Haney, supra, at pp. 642-643.)

As to the third element, we noted "the fact that theft through fraudulent representation or pretense has long been defined as a crime by statute in California" and concluded "that when an employer discharges an employee who refuses to defraud a customer, the employer has violated a fundamental public policy and may be liable in tort for wrongful discharge." (Haney, supra, 121 Cal.App.4th at p. 643.) The same analysis and conclusions apply to the forgery and fraud provisions of the Penal Code provisions referenced by Scott. In particular, the alleged forgery and fraud cannot be regarded as affecting only the individual interests of Medical Group and its patients without an impact on the public interest. As noted by Scott, other physicians may rely on the reports in their treatment of the patient, and third party insurers, whether private or governmental, pay some or all of the expense related to the preparation and distribution of the reports. Thus, the policies are not limited to serving private interests. (See Yau, supra, 229 Cal.App.4th at pp. 157-159 [mechanic reported to superiors that fraudulent warranty repair claims were being submitted to Ford; illegal activity potentially harmed Ford, a third party].) A more extended analysis is not necessary to conclude the public policies underlying Penal Code sections 470, 471.5 and 487 pass the four-part test.

The remaining legal question is whether the alleged retaliatory discharge of Scott implicated or thwarted the public policies underlying Penal Code sections 470, 471.5 and 487. We partially answered this legal question in part III.B.2., ante, where we concluded (1) retaliatory discharges for internally reporting potentially illegal activity might actually implicate or thwart a fundamental public policy and (2) the resolution of whether it did (or did not) depended upon the statutory provisions involved and the public policies they seek to implement. Now, we must resolve this question as it relates to Penal Code sections 470, 471.5 and 487.

A retaliatory discharge affects both the employee discharged and other employees. The discharged employee is prevented from reporting future activity, either internally or externally.¹⁴ Other employees, concerned they too might lose their job, might be deterred from reporting and refusing to participate in potentially illegal activities. Stated in terms of deterrence, the firing of the reporting employee specifically deters that employee from future reports and might generally deter other employees from similar actions.¹⁵ These actual and potential impacts support the conclusion that the alleged retaliatory discharge thwarts the public policies underlying Penal Code sections 470, 471.5 and 487. Furthermore, the decisions in Haney, Yau, and Casella v. SouthWest Dealer Services, Inc. (2007) 157 Cal.App.4th 1127, which involved internal reporting of potential violations of the Penal Code provisions addressing theft by fraud, lead us to conclude that discharging an employee for internally reporting potential forgeries and fraud contravenes or thwarts the public policies underlying Penal Code sections 470, 471.5 and 487. As these public policies provide a sufficient basis for Scott's claim, we need not address the other statutory provisions that she has cited. (See Diego, supra, 231 Cal.App.4th at p. 921 ["we need not opine on the policy or policies delineated in section 6310" because another section established a public policy sufficient to allow plaintiff's claim to proceed].) Furthermore, we have not considered Scott's counsel's reference during oral argument to a case pending in the superior court.

14 Discharging the employee does not prevent the employee from reporting past activity to external parties, such as the company with which the employer did business. (E.g., Green, supra, 19 Cal.4th at p. 94, fn. 5 [after being fired, plaintiff reported the employer's inspection and shipping practices to Boeing, which stopped doing business with the employer] (dis. opn. of Baxter, J.).)

15 In comparison, the general objectives of sentencing in a criminal case include specifically deterring the defendant from future offenses and generally "[d]eterring others from criminal conduct by demonstrating its consequences." (Cal. Rules of Court, rule 4.410(a)(3) & (4).)

D. Causation and the "Substantial Motivating Reason" Test

1. Analyzing Causation at the Summary Judgment Stage

The causation element of a claim for wrongful discharge in violation of public policy requires Scott to prove her internal reporting of potential forgeries and fraud was a "substantial motivating reason" for Medical Group's decision to discharge her. (CACI No. 2430 [factual elements of wrongful discharge in violation of public policy].) Here, Medical Group's motion challenged Scott's ability to prove causation by asserting it "has established a 'legitimate non-retaliatory' reason for its termination of [Scott] and [Scott] cannot establish this reason is a 'pretext' for an unlawful motive."

When an employer in an employment discrimination or retaliatory discharge case moves for summary judgment based on the element of causation (i.e., motive), the motion is subject to a unique set of rules adapted from the burden-shifting framework established for proof at trial by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, at pages 802 through 804. Specifically, the employer has the initial burden of presenting admissible evidence showing "that the adverse employment action was based upon legitimate, nondiscriminatory factors." (Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 1003, citing Guz, supra, 24 Cal.4th at p. 357.)

So long as nondiscriminatory, the employer's "true reasons need not necessarily have been wise or correct. [Citations.] While the objective soundness of an employer's proffered reasons supports their credibility ..., the ultimate issue is simply whether the employer acted with a motive to discriminate illegally. Thus, 'legitimate' reasons [citation] in this context are reasons that are facially unrelated to prohibited bias, and which, if true, would thus preclude a finding of discrimination." (Guz, supra, 24 Cal.4th at p. 358, original italics.) The foregoing statement about illegal discrimination also applies to retaliation. (Diego, supra, 231 Cal.App.4th 913 [plaintiff alleged she was discharged based on director of preschool's mistaken belief plaintiff lodged a complaint with state licensing agency].)

Legitimate reasons for terminating employment include a failure to meet performance standards (Trop v. Sony Pictures Entertainment Inc. (2005) 129 Cal.App.4th 1133, 1149); the employer's loss of confidence in an employee (Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 352 (Arteaga)); the employee's making false charges of sexual harassment (Joaquin v. City of Los Angeles (2012) 202 Cal.App.4th 1207, 1226 (Joaquin)); and the employee's working for a privately owned business on the employer's time and using the employer's computer (Loggins v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102, 1111-1112).

If the employer's moving papers satisfy the initial burden as to a legitimate motive, the burden shifts to the employee. The employee's opposition papers must "demonstrate a triable issue by producing substantial evidence that the employer's stated reasons were untrue or pretextual, or that the employer acted with a discriminatory [motive¹⁶], such that a reasonable trier of fact could conclude that the employer engaged in intentional [retaliation] or other unlawful action." (Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1038 (Cucuzza).) In other words, "an employer is entitled to summary judgment if, considering the employer's innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that the employer's actual motive was [retaliatory]." (Guz, supra, 24 Cal.4th at p. 361, fn. omitted.) It is not sufficient for an employee to make a bare prima facie showing or to simply deny the credibility of the employer's witnesses or to speculate as to retaliatory motive. (See Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1004; Compton v. City of Santee (1993) 12 Cal.App.4th 591, 595-596.) Rather, the employee must produce "substantial responsive evidence" demonstrating the existence of a material controversy as to motive. (University of Southern California v. Superior Court (1990) 222 Cal.App.3d 1028, 1039; Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1735.) Typically, there are two ways—direct and indirect—for a plaintiff to create a triable issue of fact as to the employer's motive. (DeJung v. Superior Court (2008) 169 Cal.App.4th 533, 553 (DeJung); Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 150.) The direct way involves presenting substantial evidence showing that a retaliatory reason motivated the employer. The indirect way involves presenting substantial evidence that the employer's proffered explanation was unworthy of credence—that is, was untrue or pretextual. (Ibid.) The showing of pretext is indirect because the trier of fact may reasonably infer retaliation was the true motive after finding the employer's proffered reasons were untrue.

16 We substitute the word "motive" for "animus" in this quote for two reasons. First, "animus" is ambiguous in that it could mean "intention" or it could be interpreted more narrowly to require proof of "ill will." (Wallace v. County of Stanislaus (2016) 245 Cal.App.4th 109, 130, fn. 14.) In Wallace, we explained the ambiguity and the proper interpretation of "animus" in establishing the requisite intent to discriminate because of a disability. (Id. at pp. 129-132.) Second, the phrase "discriminatory motive" is a better fit with the substantial-motivating-reason test adopted by our Supreme Court in Harris, supra, 56 Cal.4th 203. In Harris, an FEHA discrimination case, the court stated the jury must determine "whether discrimination was 'a substantial motivating factor/reason'" for the adverse employment action. (Id. at p. 232.) As previously stated, the same principles apply to retaliatory motives.

Ultimately, when the employer challenges the employee's ability to prove causation, the shifting burden analysis collapses into one broad question. Does the evidence as a whole support a reasoned inference that retaliation was a substantial motive for the discharge? (See Joaquin, supra, 202 Cal.App.4th at p. 1226, fn. 5.)

2. Medical Group's Initial Showing

We conclude Medical Group has carried its initial burden by presenting admissible evidence showing Scott's discharge was based on legitimate, nonretaliatory factors. First, the written employee performance reviews for Scott demonstrate that she had been counseled multiple times on her demanding and aggressive approach with staff and other members of management. Second, Dr. Ian Johnson, medical director of the neurosurgery practice site did not want Scott working in that practice site prior to the January 21, 2013, incident with Banda. Third, Scott's immediate supervisor, Trad, had difficulties in working with Scott and sought to terminate Scott's employment before January 21, 2013.¹⁷ Fourth, although the parties do not agree on all details of the January 21, 2013, meeting between Scott and Banda, the details upon which they agree are sufficient to show Scott treated Banda in an aggressive and demanding manner. For instance, Scott does not dispute that during the meeting she "might have raised her voice a little" and she told Banda what she was doing with the reports was fraud and illegal—legal conclusions for which Scott did not have sufficient information. (UMF 63, 64.) Fifth, the declaration of Dr. Van Gundy states he joined in the decision to terminate Scott's employment because of her history and the incident with Banda. As a result, Medical Group did not go forward with the competency corrective action plan for Scott.

17 Fields-Keene resisted Trad's suggestion, directed that Scott be given a formal corrective action plan, and asked Trad to collaborate with the human resources department to prepare a written document to be given to Scott for that purpose. A draft of a competency corrective action plan was prepared, but was not finalized and delivered to Scott.

Accordingly, we conclude Medical Group carried its initial burden as to a legitimate motive and, therefore, Scott must produce substantial evidence demonstrating Medical Group's stated reasons were untrue or pretextual, or that Medical Group acted with a retaliatory motive. (Cucuzza, supra, 104 Cal.App.4th at p. 1038.) The evidence produced must be such that a reasonable trier of fact could find that the employer engaged in intentional retaliation. (Ibid.)

3. Inferring Retaliatory Motive or Pretext from Timing of Discharge

Scott contends she was discharged within 10 days from the date she reported the potentially unlawful conduct and the proximity in time between her internal report and the discharge supports the inference that her internal report motivated Medical Group's decision to terminate her employment. "'Close proximity in time of an adverse action to an employee's resistance or opposition to unlawful conduct is often strong evidence of a retaliatory motive.' [Citations]." (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1020.) "Pretext may be inferred from the timing of the discharge decision, the identity of the decisionmaker, or by the discharged employee's job performance before termination." (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 224.)

In the context of a motion for summary judgment, however, suspicious timing alone is not sufficient to raise a triable issue. (Arteaga, supra, 163 Cal.App.4th at p. 353.) Accordingly, the temporal proximity between Scott's January 21, 2013, internal report of Banda's potentially unlawful activity and the termination of Scott's employment on February 1, 2013, is evidence relevant to proving a retaliatory motive. However, it is insufficient by itself to carry Scott's burden of rebutting Medical Group's initial showing and establishing a triable issue of material fact as to causation (i.e., motive).

Consequently, we turn to the other evidence referred to in Scott's appellate briefs to support her contention that there are triable issues of facts about Medical Group's motive for discharging her.

4. Cover-Up Motive: Failure to Investigate

Scott contends Medical Group was motivated to stifle any embarrassment or other problems that would result if referring doctors, insurance companies or Medicare/Medi-Cal learned Banda has electronically signed doctor reports. Scott further contends Medical Group discharged her (1) in retaliation for bringing the problems to light, (2) to prevent her from pursuing the problems further, and (3) to deter others from pursuing these or similar problems. Scott argues Medical Group's true motives can be inferred from its failure to investigate Banda's electronic signing of doctor reports, which supports the finding that Banda's actions were protected and supports the further inference that Scott was terminated for calling attention to Banda's handling of the transcribed reports.

Scott's argument about avoiding potential embarrassment is related to a factual matter upon which the parties do not agree. Scott's complaint alleged Banda's actions resulted in signed medical records being "electronically sent, in real time, to referring providers thus becoming part of the patients legal medical records in which treatment plans were determined." Medical Group presents a different version of what happened, contending "Scott is simply wrong when she claims the reports were automatically auto-faxed to referring physicians upon pressing the sign and print button." Medical Group asserts:

"The evidence shows that sometimes reports were faxed when printed and sometimes they were not.... The Compliance Department's investigation was unable to determine whether any of the reports printed by Banda were auto-faxed."

Evidence that reports sometimes were faxed when printed and the inability to determine whether any reports printed by Banda were faxed when she printed the report does not establish that none of the reports printed were faxed to referring physicians. Thus, we reject Medical Group's contention that Scott was wrong in stating signed reports were automatically faxed. Under the rules applicable to summary judgment motions, we must conclude at least some, if not all, of the reports were sent automatically to referring physicians when Banda pressed the sign and print button. Consequently, that remains a disputed material fact.

If Medical Group had established none of the reports printed by Banda had been sent to referring physicians or wrongfully initiated billing to various payors, then Medical Group would have established it had no reason (such as concerns for patient safety) to contact those physicians to (1) determine if they received any faxed reports, (2) warn them not to rely on any reports received by fax on January 21, 2013, and (3) request they discard any such faxed reports and rely only on the version mailed to them. However, in the face of uncertainty about whether referring physicians received faxed versions of the reports printed by Banda and relied on those versions, Medical Group chose not to extend its investigation to referring physicians. This decision supports the inference that Medical Group wished to avoid the embarrassment, and insurance or billing problems, that might be brought into the light of day if it had contacted the referring physicians. This inference about avoiding embarrassment and other problems is strengthened by the fact the problem arose in the neurosurgery practice site, which the chief executive officer described as particularly important to Medical Group "because of its prestige within the medical community and the large amount of revenue that it generates." Therefore, we conclude Medical Group's acts and omissions in investigating whether the reports printed by Banda were received and relied upon by referring physicians supports the inference that a substantial part of Medical Group's motive for terminating Scott's employment was to silence her complaints about forgery and the billing implications of Banda's actions. In addition, Scott connects the cover-up motive to Trad and, thus, the cat's paw theory,¹⁸ by noting that (1) Trad controlled the inquiry into Banda's action, (2) Trad did not make the human resources manager aware of how many doctor's reports Banda had electronically signed, and (3) Banda was not interviewed about signing doctor's reports until after Trad was fired.

18 The cat's paw theory is discussed at pages 41 through 43, post.

5. Cover-Up Motive: Failure to Discipline Banda

Scott also argues the failure to discipline Banda is circumstantial evidence of a motive to cover up the problem of referring physicians receiving signed reports that had not been reviewed by the doctor who transcribed them. We agree that such an inference is possible. The inference is not as strong as Scott contends because her argument is based in part on a comparison to Medical Group's action in discharging another employee for electronically signing reports. Specifically, Scott contends Medical Group "had previously terminated an employee for electronically signing the doctor's name with the doctor's knowledge and consent." (Italics added.) However, the pages of that former employee's deposition testimony submitted as part of Scott's opposition do not identify when that employee was discharged. Consequently, Scott has not established the discharge occurred before she reported Banda and, as a result, has not shown Medical Group deviated from its prior practice.

Based on the evidence before us, Medical Group's failure to discipline Banda provides some support for the inference that Medical Group's actual motive for discharging Scott was to minimize or cover up the problems involving referring physicians and billing.

6. Pretext: The New Incident Invented by Trad

Scott has established a triable issue of fact as to whether Medical Group's decision to discharge her was substantially motivated by retaliation based on evidence relating to Medical Group's reasons for discharging Scott. Consequently, Scott is not required to present evidence showing the proffered reasons were pretexts. Nonetheless, Scott's opposition to the motion for summary judgment asserted Medical Group's reasons for discharging her were pretexts offered to disguise its retaliatory reasons.

In Guz, our Supreme Court identified one way of establishing pretext when it stated that, "in an appropriate case, an inference of dissembling may arise where the employer has given ... factually baseless justifications for its actions." (Guz, supra, 24 Cal.4th at p. 363.) Here, Scott contends Trad invented a factually baseless justification for terminating Scott's employment. Scott argues a jury could disbelieve Medical Group's proffered reasons for her discharge because the decision makers relied on Trad's invented incident without an investigation. Like the parties, we refer to the incident allegedly invented by Trad as the "new incident."

The parties dispute whether Trad told the decision makers about a new incident or, alternatively, referred to the incident between Scott and Banda that occurred on January 21, 2013. The deposition testimony of Fields-Keene addressed whether Trad described a new incident to the group who made the decision to terminate Scott's employment, but the parties interpret that testimony differently. For instance, Medical Group argues that when the deposition testimony of Fields-Keene is read "in context, it is clear that this purported 'new incident' was, in fact, the incident with Banda." During oral argument, counsel for Medical Group stated there was "no evidence" that a new incident was invented by Trad. As explained below, this interpretation of the evidence is wrong.

During her deposition, Fields-Keene testified about a meeting held in a third floor conference room, which she attended with Dr. Peterson, Dr. Van Gundy and Trad after Scott had advised Trad about Banda's handling of doctors' notes. The purpose of the meeting was to discuss Scott. Trad recommended that Scott be discharged. The doctors agreed with Trad's recommendation, but Fields-Keene did not. On the question of a new incident described by Trad at the meeting, Fields-Keene testified: "Apparently something additional had just happened, and she - you know, done. Time to let her go." When asked what additional thing had happened, Fields-Keene stated, "I don't even recall what it was." In response to a question if the incident was Scott's treatment of Banda, Fields-Keene responded, "No. That was prior to this - it made me think there was something []new, but I don't remember what [Trad] said, if she even explained it. Her tone was, 'This has happened again. I can't take it.'" A jury presented with this testimony reasonably could find Trad reported a new incident to the group—that is, an incident that occurred after Scott spoke with Banda about signing doctors' reports.

As a court reviewing the evidence presented in connection with a motion for summary judgment, we are obligated to view that evidence in a light favorable to the nonmoving party, which means any evidentiary doubts or ambiguities in the losing party's favor. (Saelzler, supra, 25 Cal.4th at pp. 768-769.) Here, Fields-Keene was asked specifically if the new incident was Scott's treatment of Banda and she answered "No." This answer is favorable to Scott and, to the extent other testimony of Fields-Keene or testimony of others attending the meeting might cast doubts on the accuracy of this answer, we must resolve those doubts in favor of Scott. Accordingly, we conclude there is a triable issue of material fact about whether Trad invented a new incident as a reason for firing Scott.

As a fallback, Medical Group contends that even if Trad invented a new incident, Scott failed to explain how Trad's invention helps her establish the real reason for her discharge was her internal whistleblowing. This contention is related to Medical Group's view that only the motives or state of mind of Drs. Peterson and Van Gundy are relevant because they decided to fire Scott. In response, Scott argues Trad's motives are relevant because a jury could conclude Trad used Drs. Peterson and Van Gundy as "cat's paws" to sanitize the problem created by Scott's whistleblowing. Based on this argument, we consider whether the "cat's paw" theory supports Scott's opposition to the summary judgment motion.

The "cat's paw" theory of employer liability holds that an employer is responsible where the retaliatory actions by a supervisor bring about adverse employment actions through an instrumentality or conduit of upper management who may be innocent of any retaliatory motive. (Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 116 [summary judgment for employer reversed; triable issues of fact as to supervisor's retaliatory motive and whether manager acted as the tool or cat's paw for the supervisor and carried supervisor's retaliatory motive into effect].) In part III.B. of the published opinion in Reeves, the Sixth District discussed the cat's paw theory at length. Consequently, there is little point in repeating that discussion in this unpublished decision. (Id. at pp. 113-116; see generally, 1 Chin, et al., Cal. Practice Guide Employment Litigation (2017 The Rutter Group) ¶ 5:1616, p. 5(II)-27 [influence of supervisor's retaliatory motive may be imputed to employer; "cat's paw" theory].)¹⁹

19 In addition to retaliation cases, the cat's paw theory has been applied in discrimination cases. For example, in DeJung, supra, 169 Cal.App.4th 533, the First District applied the theory to an age discrimination claim and reached the conclusion that "showing a significant participant in an employment decision exhibited discriminatory [motive] is enough to raise an inference that the employment decision itself was discriminatory, even absent evidence that others in the process harbored such [motive]." (Id. at p. 551.)

Here, Medical Group has not established facts that preclude the application of the cat's paw theory. Evidence shows Trad was Scott's supervisor and a significant participant in the decision to fire Scott. Trad's participation included recommending the termination of Scott's employment to the three-person group that decided Scott's fate and may have included inventing a new incident to bolster her recommendation. If the invented new incident was a factor in the decision of Dr. Van Gundy and Dr. Peterson to terminate Scott's employment, then a jury could find they acted as Trad's cat's paws. Medical Group has not presented evidence that negates the cat's paw theory.²⁰ Therefore, Scott is not precluded from pursuing the theory, which imputes any retaliatory motive of Trad to Medical Group's decision makers even though they may have been innocent of any retaliatory motive.

20 For instance, if Medical Group had conducted an investigation into the new incident, determined such an incident had not occurred, and informed Dr. Van Gundy and Dr. Peterson that the new incident did not occur before they decided to fire Scott, those facts would tend to show that Trad had not duped the doctors into acting as her cat's paws.

As the cat's paw theory allows Trad's motivation for recommending the termination of Scott's employment to be imputed to Medical Group, we next consider whether there is sufficient evidence that Trad had a retaliatory motive. In other words, could a jury reasonably find Trad's recommendation to terminate Scott's employment was substantially motivated by Scott's internal reporting of potential forgeries and fraud? If so, the cat's paw theory would allow this motive to be imputed to Medical Group.

Scott contends a jury could reasonably find Trad retaliated against Scott's internal reporting in an effort to sweep Banda's misconduct under the rug and to avoid the problems and embarrassment of following up with the many referring doctors who received electronically signed reports as a result of Banda's action, which might have led to questions by insurance companies or Medicare that paid bills based on the electronically signed reports. Here, Scott has produced no direct evidence that Trad's motive for recommending Scott's discharge was to retaliate for Scott's internal reporting of Banda's activity. This is not unusual because motive relates to state of mind, which typically is proven indirectly by circumstantial evidence. Consequently, the showing must be based on circumstantial evidence, which includes evidence that challenges the proffered reasons as pretexts for the retaliatory discharge. (See Wallace, supra, 245 Cal.App.4th at pp. 122-123.) Here, the evidence creates a triable issue of fact about whether Trad invented a new incident to bolster her recommendation that Scott be discharged. An invented reason is a pretext. Thus, the invented reason is circumstantial evidence that the legitimate reasons offered by Trad were pretexts, which in turn supports the inference that a substantial motivating reason for her recommendation was retaliation. However, like temporal proximity, an inference of a retaliatory or discriminatory motive cannot be drawn solely from evidence that a company (or a supervisor using upper management as her cat's paws) lied about its reasons for discharging the employee. (Guz, supra, 24 Cal.4th at p. 360.) Accordingly, we consider whether there is additional evidence supporting the inference about a retaliatory motive.

7. Pretext: Failure to Use Progressive Discipline

It is undisputed that Medical Group generally followed a progressive discipline procedure that involved giving employees an opportunity to correct their errors after they had been told about a violation of rules or procedures. Scott contends she had never been disciplined in accordance with this general practice before her discharge and Medical Group's deviation from its progressive discipline procedure supports the inference that her discharge was motivated, at least in part, by her internal report of Banda's actions.

As described in part III.D.2., ante, before the January 21, 2013, incident involving Banda, Medical Group had planned to implement a competency corrective action plan for Scott. The draft of the competency corrective action plan attached to the declaration of Fields-Keene proposed placing Scott "on a 90 day probationary period" during which she was expected to demonstrate immediate and on-going improvement on matters such as "overly assertive" confrontations with subordinates, colleagues and supervisors. The apparent logic of the plan was that Scott, after receiving formal written notice and being placed on probation, would be able to modify her behavior and meet standards acceptable to her employer. It is not clear from the evidence before this court why that logic no longer applied when, before the report was issued, Scott purportedly engaged in some of the conduct the plan was drafted to address. In other words, the fact a perceived problem reoccurred before Scott was put on formal notice does not, in itself, demonstrate the plan would be ineffective and Scott would not be able to modify her behavior once she was put on notice. We recognize that conflicting inferences can be drawn from the failure to adhere to the general practice of progressive discipline and Medical Group's failure to implement the competency corrective action plan drafted for Scott. One of the reasonable inferences is that Medical Group changed its plan for progressive discipline for Scott because of a desire to cover up the sending to referring physicians of reports that had been electronically signed by Banda and not by the examining physician. We conclude the decision as to which inference should be drawn is a question of fact that cannot be resolved at the summary judgment stage. (See Code Civ. Proc., § 437c, subd. (c) [conflicting inferences].)

8. Pretext: Shifting Explanation for Discharge

Our Supreme Court stated that, "in an appropriate case, an inference of dissembling may arise where the employer has given shifting[ or] contradictory ... justifications for its actions." (Guz, supra, 24 Cal.4th at p. 363.) As a result of this statement, many judicial decisions have discussed shifting or changing reasons for discharging an employee. (E.g. Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 716 [employer never rested on a single coherent explanation for firing plaintiff and several explanations were questionable]; Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 815, citing Nidds v. Schindler Elevator Corp. (9th Cir. 1996) 113 F.3d 912, 918 [reasons given by employer for termination were not incompatible and therefore not properly described as "shifting reasons"].)

Here, Scott argues shifting explanations exist because (1) the decision was made to give a corrective action plan (2) the jury could believe Medical Group's decision makers did not think the Banda incident was worthy of terminating Scott over, and (3) the new incident described by Trad to the decision makers was too vague and insubstantial to warrant the termination of Scott's employment.

We conclude Scott has failed to identify an explanation for Scott's termination that (1) has shifted from a prior explanation and (2) is incompatible with that prior explanation. The new incident invented by Trad does not qualify as a "shifting explanation" because there is no incompatibility with the legitimate reasons given by Medical Group of Scott's discharge. The new incident is simply an additional example of the negative behavior described in Scott's employee performance reviews.

9. Conclusion: Triable Issue of Fact as to Motivation

To prevail on her claim of a retaliatory discharge in violation of public policy, Scott must prove her internal report of Banda's action was a substantial motivating reason for her discharge. (CACI No. 2430.) Scott is not required to prove retaliation was the only or even primary motive for her discharge. (Davis v. Farmers Ins. Exchange (2016) 245 Cal.App.4th 1302, 1317.) A substantial motivating reason is a reason that actually contributed to a plaintiff's discharge and is more than a remote or trivial reason. (Ibid.)

The question before this court is whether the evidence as a whole supports a reasoned inference that retaliation was a substantial motive for Medical Group's decision to discharge Scott. (See Joaquin, supra, 202 Cal.App.4th at p. 1226, fn. 5.) We conclude substantial circumstantial evidence supports such an inference and, as a result, there are triable issues of material fact related to the motive attributable to Medical Group. As described earlier, the evidence that supports the existence of a retaliatory motive includes (1) the temporal proximity between Scott's internal report on January 21, 2013, and the termination of her employment on February 1, 2013; (2) Trad's invention of a new incident to support her recommendation that Scott be discharged; (3) Medical Group's acts and omissions in investigating whether the reports printed by Banda were received and relied upon by referring physicians or were used to wrongfully initiate billings sent to insurance companies or government payors; and (4) Medical Group's decision to terminate Scott's employment rather than implement the progressive discipline it had planned. Therefore, we conclude Scott's claim for retaliatory discharge in violation of public policy should not have been summarily adjudicated.

In reaching the foregoing conclusions, we have rejected Medical Group's argument that Scott "cannot recover merely by showing that the inferences she draws from [the circumstantial evidence] are consistent with her theory. Instead, she must show that the inferences favorable to her are more reasonable or probable than those against her." (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 483.) First, Leslie G. and the two cases from the 1920's upon which it relied were decided before our Supreme Court's extensive decision that clarified "the law that courts must apply in ruling on motions for summary judgment," including the 1992 and 1993 amendments to Code of Civil Procedure section 437c. (Aguilar, supra, 25 Cal.4th at p. 837.) Thus, Leslie G. does not reflect our Supreme Court's view of inferences that create a triable issue of fact for purposes of the summary judgment statute. Second, the statement in Leslie G. about the "more reasonable or probable" inference is not derived from the language of Code of Civil Procedure section 437c. That statutory language states a court may not grant a defendant's motion for summary judgment "based on inferences ... if contradicted by other inferences or evidence that raise a triable issue as to any material fact." (Code. Civ. Proc., § 437c, subd. (c); see Aguilar, supra, at p. 856.) This text does not state that the contradictory inference drawn by the plaintiff is sufficient to create a triable issue of fact only when it is more probable than the inference favoring the defendant. Third, the statements about inferences made in Leslie G. relate to proving causation sufficient to hold a landlord responsible for a third party's criminal act (viz., rape) that occurred on the landlord's property. We are reluctant to export the statement from an area of law with particular rules to cases alleging a wrongful termination of employment, to another area of law with specific rules relating to how plaintiffs prove causation (i.e., motive). IV. SEX DISCRIMINATION

A. Third Cause of Action

1. Allegations in the Complaint

In pleading her third cause of action, Scott adopted the label "Violation of California Government Code §12940 Retaliation" and quoted subdivisions (h) and (i) of that section, which provide in relevant part:

"(h) For an employer... to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part, or because the person has filed a complaint, testified or assisted in any proceeding under this part.

"(i) For any person to aid, abet, incite, compel, or coerce the doing of any of the acts forbidden under this part, or to attempt to do so."

Scott interpreted these provisions broadly by asserting Government Code section 12940 prohibited retaliation against employees for complaining of unlawful discrimination and/or conduct. Scott did not allege how she "opposed any practices forbidden under this part" or was involved in "any proceeding under this part" as those phrases are used in subdivision (h) of Government Code section 12940.

Besides the ill-defined allegations about retaliation, Scott's complaint alleged she was "over the age of 40, female, and single. As an older, single female employee her work was subject to heightened scrutiny, she was singled out for selective discipline." In view of the other allegations of the complaint, which were incorporated into the third cause of action, it is reasonable to interpret "selective discipline" to mean the termination of her employment.

To summarize, the allegations under the heading for the third cause of action can reasonably be construed as attempting to state two legal theories—one about retaliation and a second about discrimination based on age and sex.

2. Medical Group's Grounds for Summary Judgment

Medical Group's motion for summary judgment raised two issues that it contended demonstrated Scott's third cause of action had no merit. Medical Group characterized the third cause of action as a claim "for retaliation in violation of the FEHA" and asserted Scott could not establish (1) a prima facie case of protected activity or (2) Medical Group's legitimate reason for terminating her employment was a pretext for an unlawful motive.

3. Scott's Opposition to Motion for Summary Judgment

Scott's opposition to the motion for summary judgment argued Medical Group had not met its burden as to the third cause of action. Scott argued: "The facts obtained in discovery show that Scott was subjected to sexually discriminatory treatment for which a jury might properly conclude was motivated on the basis of gender animus." Other points made in Scott's opposition focus entirely on sex discrimination and do not refer to retaliation. Thus, it is reasonable to interpret Scott's opposition as abandoning the legal theory of retaliation that violates Government Code section 12940 and asserting only a legal theory of sexual discrimination in violation of that code section.²¹ Furthermore, this interpretation is consistent with the approach Scott has taken in her appellate briefs.

21 Subdivision (a) of Government Code section 12940 states that it is an unlawful employment practice for an employer, because of sex or age, to discharge a person from employment. The statutory phrase "because of" means a substantial motivating factor or reason. (Harris, supra, 56 Cal.4th at p. 232.)

B. Analysis of Motion and Opposition

1. Protected Activity

Medical Group sought summary judgment on the ground that Scott could not "establish a prima facie case of protected activity" to support her third cause of action. In response, Scott abandoned her retaliation theory and continued to assert a sex discrimination theory. As a claim for sex discrimination in violation of Government Code section 12940 is not based on "protected activity," the first ground asserted by Medical Group does not provide a basis for concluding Scott will not be able to establish a sex discrimination claim. Accordingly, we cannot grant summary adjudication of the sex discrimination claim on this ground.

2. Inability to Establish Disparate Treatment

The trial court rejected Scott's claim of sex discrimination. First, the court noted "her relevant discovery responses do not mention age, gender or marital status." Next, the court rejected her argument that she had presented substantial evidence she had been held to a different and higher standard than male employees. Scott argued that even if she was discharged for yelling at an employee, her evidence showed male employees were not fired despite regularly yelling at staff. One reason the court rejected this argument was that there was no indication the surgeons who yelled at staff were males.

On appeal, Scott contends she presented evidence "of differential treatment of male and female employees for similar alleged misbehavior." Scott supports this contention by making the factual assertion that "male employees of [Medical Group] were not fired after regularly yelling at staff people." The evidence Scott cites to establish this factual assertion is two pages from the deposition of Fields-Keene and one page from her own deposition. Neither of Scott's appellate briefs specifically responds to the trial court's determination that her evidence did not establish the person described as yelling were male.

Before evaluating Scott's evidence and determining whether it is sufficient to create a triable issue of material fact as to sex discrimination, we set forth some of the basic legal principles that define such a claim. First, there are two types of discrimination claims brought under Government Code section 12940, subdivision (a)—claims for disparate treatment and claims of disparate impact.²² (See Wallace, supra, 245 Cal.App.4th at p. 126.) Here, Scott alleges a disparate treatment type of discrimination claim. Second, in disparate treatment cases, the employer "discriminates" when it treats the employee differently "because of" a factor (such as age, race, religion or sex) listed in the FEHA. (Gov. Code, § 12940, subd. (a); Wallace, supra, at p. 126.) Based on these principles, we consider whether Scott has presented evidence to establish disparate treatment—specifically, that she was treated differently when compared to males who behaved in the manner she is alleged to have behaved.

22 The disparate impact type of illegal discrimination occurs when, "regardless of motive, a facially neutral employer practice or policy, bearing no manifest relationship to job requirements, in fact had a disproportionate adverse effect on members of the protected class." (Guz, supra, 24 Cal.4th at p. 354, fn. 20.)

Scott's deposition testimony included the statement that she "believe[d] in a sense that there is a little bit of [sex] discrimination there in regards to how this was handled." Scott stated, "It might have been a very different turnabout if it was a man that had reported this situation with Dr. Johnson and staff, or the neurosurgeons." In response to these statements, counsel asked Scott, "Tell me everything that you are aware of that suggests that your termination had anything to do with being a woman?" Scott's answer began, "It's my belief from what I witnessed in my time ...." The remainder of her answer is not part of the record as the pages from her deposition skip from page 174 to page 188. In short, Scott expressed a belief that some sex discrimination motivated her dismissal. However, the factual basis for this belief is not set forth in the testimony provided in the appellate record. A plaintiff's belief that sex discrimination has occurred is insufficient to create a triable issue of fact about whether her sex was a substantial motivating reason for her dismissal. (See McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 396 [plaintiff's personal beliefs or concerns were not evidence of employer's unlawful motive].)

In addition, our review of the deposition testimony of Fields-Keene leads us to the same conclusion as the trial court. The pages cited by Scott do not establish that the doctors who yelled at staff were male. Consequently, that testimony does not show she was treated differently from male employees. Therefore, we conclude Scott has not produced "substantial responsive evidence" demonstrating a triable issue of material fact on whether sex discrimination was a substantial motivating reason for her discharge. Accordingly, the trial court properly granted summary adjudication of Scott's third cause of action.

DISPOSITION

The judgment is reversed. The trial court is directed to vacate its order granting the motion for summary judgment and to enter a new order summarily adjudicating the second and third causes of action and denying the motion as to the first cause of action for wrongful discharge in violation of public policy. Scott shall recover her costs on appeal.

/s/_________

FRANSON, Acting P.J. WE CONCUR: /s/_________
PEÑA, J. /s/_________
SMITH, J.