Filed 9/14/20 De Martin v. La Jolla Pharmaceutical CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

TIMOTHY DE MARTIN,

Plaintiff and Appellant,

v.

LA JOLLA PHARMACEUTICAL 

COMPANY,

Defendant and Respondent.

 D075026

 (Super. Ct. No. 37-2017-

00009687-CU-WT-CTL)

ORDER MODIFYING OPINION 

AND DENYING REHEARING

NO CHANGE IN JUDGMENT

It is ordered that the opinion filed on August 17, 2020, be modified as 

follows:

1. On page 11, after the first full paragraph and before the 

heading “b. Procedural Law,” add the following two new paragraphs:

In a petition for rehearing, Plaintiff argues that 

the opinion fails to analyze potential violations of 

section 12940, subdivision (k)—which includes as an 

unlawful employment practice the “fail[ure] to take all 

reasonable steps necessary to prevent discrimination and 

harassment from occurring.” For a number of reasons, 
2

Plaintiff forfeited appellate consideration of any potential 

section 12940, subdivision (k) analysis. First, Plaintiff did 

not mention subdivision (k) in his opposition to Defendant’s 

motion in the trial court. (Delfino v. Agilent Technologies, 

Inc. (2006) 145 Cal.App.4th 790, 818, fn. 36 [legal theory 

raised for first time on appeal following grant of summary 

judgment motion not considered].) Second, although 

Plaintiff cited subdivision (k) once in his opening brief on 

appeal, he presented no legal argument or citation to 

authority that might relate subdivision (k) to the facts he 

alleged in his complaint. (Cahill v. San Diego Gas & Elec. 

Co. (2011) 194 Cal.App.4th 939, 956 (Cahill) [“The absence 

of cogent legal argument or citation to authority allows this 

court to treat the contentions as waived”]; see Cal. Rules of 

Court, rule 8.204(a)(1)(B).) Finally, to the extent Plaintiff 

may contend that the two citations to subdivision (k) in his 

reply brief on appeal contain applicable argument or 

authority, his failure to properly raise the issue in the

opening brief forfeits consideration of the issue in reply. 

(Golden Door Properties, LLC v. County of San Diego (2020) 

50 Cal.App.5th 467, 518 [“ ‘ “ ‘Obvious considerations of 

fairness in argument demand that the appellant present all 

of his points in the opening brief’ ” ’ ”].)

In any event, even if we considered Plaintiff’s 

section 12940, subdivision (k) argument, it would fail as a 

matter of law. That is because “courts have required a 

finding of actual discrimination or harassment under 
3

FEHA before a plaintiff may prevail under section 12940, 

subdivision (k).” (Carter v. California Dept. of Veterans 

Affairs (2006) 38 Cal.4th 914, 925, fn. 4., citing Trujillo v. 

North County Transit Dist. (1998) 63 Cal.App.4th 280, 283-

284, quoted in Dickson v. Burke Williams, Inc. (2015) 234 

Cal.App.4th 1307, 1314; accord, Ugorji v. County of Lake

(N.D. Cal. 2020) __ F.Supp.3d __, __ [2020 WL 3639647 at 

*9]; see CACI No. 2527, ¶ 2 [under § 12940, subd. (k), 

plaintiff must prove that he or she “was subjected to 

[harassment/discrimination/retaliation] in the course of 

employment”].) Here, as we explain at part III.B., post, 

Plaintiff has not established the requisite proof of 

discrimination or retaliation.

2. On page 26, in the first full paragraph, delete the final 

sentence (including fn. 20), which begins with “To the extent . . . ,” and 

replace it with the following new paragraph:

To the extent Plaintiff contends that the trial 

court erred in granting summary judgment on his claim for 

failure to accommodate (§ 12940, subd. (l)(4)), Plaintiff did 

not meet his burden of establishing error. Initially, he 

forfeited consideration of the issue by failing to present 

legal arguments or citations to authority that might relate 

section 12940, subdivision (l)(4), to the facts he alleged in 

his complaint.1 (Cahill, supra, 194 Cal.App.4th at p. 956; 

1 In his opening brief on appeal, Plaintiff mentions section 12940, 

subdivision (l)(4) only twice; and in both instances, the citation merely 

supports quoted language, presumably from the statute. Also, at oral 

argument, without citing authority, Plaintiff’s counsel suggested that, for 
4

see Cal. Rules of Court, rule 8.204(a)(1)(B).) In any event, 

Plaintiff did not meet his responsive burden of establishing 

a triable issue of material fact as to any potential claim 

that Defendant discriminated against him by terminating 

his employment based on his request to accommodate a 

religious practice under section 12940, subdivision (l)(4). 

To establish a disparate treatment claim based on a failure 

to accommodate, Plaintiff was required to show that Rolke 

“ma[d]e [Plaintiff’s] religious practice, confirmed or 

otherwise, a factor in [terminating him].” (Abercrombie & 

Fitch, supra, 575 U.S. at p. __ [135 S.Ct. at p. 2033], italics 

added.) As we explained in the context of Plaintiff’s 

discrimination claim under section 12940, 

subdivision (l)(1), Plaintiff did not present evidence, or 

inferences from evidence, to support a finding that Rolke 

knew about Plaintiff’s religious practice and, therefore, that 

Rolke made Plaintiff’s religious practice a factor in 

terminating his employment.

The petition for rehearing is denied.

There is no change in judgment.

AARON, Acting P. J.

Copies to: All parties

purposes of a failure to accommodate (§ 12940, subd. (l)(4)), the mere act of 

requesting an accommodation is sufficient to establish protected conduct. 
Filed 8/17/20 De Martin v. La Jolla Pharmaceutical CA4/1 (unmodified opinion)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

TIMOTHY DE MARTIN,

Plaintiff and Appellant,

v.

LA JOLLA PHARMACEUTICAL 

COMPANY,

Defendant and Respondent.

 D075026

 (Super. Ct. No. 37-2017-

00009687-CU-WT-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, 

Kenneth J. Medel, Judge. Affirmed.

The Van Vleck Law Firm, Brian F. Van Vleck and Stuart H. Kluft for 

Plaintiff and Appellant.

Gibson, Dunn & Crutcher, Jesse A. Cripps, Tiffany Phan and 

Elizabeth A. Dooley for Defendant and Respondent.

Plaintiff Timothy De Martin (Plaintiff) appeals from a judgment in 

favor of his former employer, defendant La Jolla Pharmaceutical Company 

(Defendant), following the grant of Defendant’s motion for summary

judgment. Alleging that Defendant discriminated against him by 
2

terminating his employment due to his religious creed, Plaintiff sued 

Defendant in one cause of action under the California Fair Employment and 

Housing Act (FEHA) (Gov. Code, § 12900 et seq.; further undesignated 

statutory references are to this code.)

On appeal, Plaintiff argues that, in response to Defendant’s evidence of 

a legitimate nondiscriminatory reason for termination, he presented 

sufficient evidence of pretext and/or discriminatory motive to defeat 

Defendant’s summary judgment motion. We disagree and affirm the 

judgment.

I. FACTUAL BACKGROUND2

Defendant is a biopharmaceutical company. In early 2016, BioPhase 

Solutions, Inc. (BioPhase), a staffing agency, contacted Plaintiff, who lived in 

Michigan, regarding a position with Defendant. Plaintiff accepted a position 

with Defendant and, after moving to San Diego, began a temporary 

assignment as a senior research associate on March 14, 2016.3 He reported 

to Kimberly Bieder. 

2 Because this is an appeal from a summary judgment in favor of 

Defendant, we view the evidence in a light most favorable to Plaintiff, 

liberally construing Plaintiff’s evidence, strictly scrutinizing Defendant’s 

evidence, and resolving evidentiary doubts or ambiguities in Plaintiff’s favor. 

(McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 

96-97 (McDonald) [appeal from defense summary judgment in a FEHA 

discrimination case].)

3 Although Plaintiff considered the position “temp-to-permanent,” it was 

a temporary three-month assignment, and he received no promise that the 

position would become permanent. 
3

One week later, Plaintiff, who identifies as a Christian, emailed Bieder, 

stating in part: “ ‘Friday[, March 25,] is a religious holiday (Good Friday) and 

I was wondering if it would be okay to request the day off.’ ” 

The next day, Bieder and Plaintiff discussed his March 21 email. 

During the discussion, Plaintiff also told Bieder that, “ ‘in addition’ to the 

religious holiday, he ‘needed the time on Good Friday to get settled in 

because of [his] move to California.’ ” Being “a bit taken back [sic] by him 

asking for a day” off after only a week on the job, Bieder called Plaintiff an 

“ ‘idiot,’ ” a “ ‘lazy ass,’ ” and a “ ‘slacker’ ” and said in “loud and mean tones” 

during the conversation: “ ‘I saw your request. . . . It seems kind of 

unreasonable, kind of out of place for you to be requesting time off work so 

soon. . . . How could you put me in this position? You just started working 

here.’ ” Nonetheless, at no time did Bieder say Plaintiff could not take the 

day off and, to the contrary, expressly approved his request. Despite having 

been given the day off, Plaintiff indicated that he wanted to think more about 

whether to take off the day. 

The following day, March 23, Bieder emailed Sandra Vedrick, 

Defendant’s head of human resources, to report that she (Bieder) had 

approved Plaintiff’s request to take off Friday, March 25, “for this religious 

day.” 

Later that afternoon, a group of Defendant’s employees, which included 

Plaintiff, Bieder, James Rolke (Defendant’s Vice President of Research and 

Development and the person responsible for termination decisions for the 

department in which Plaintiff and Bieder worked), and others, were in 

Defendant’s offices talking about taking time off. Speaking loudly enough for 

the entire group to hear, in what Plaintiff characterized as sarcasm, Plaintiff
4

said “ ‘Oh, don’t take off for Good Friday though.’ ”4 That evening, Rolke

called Bieder to better understand the context of Plaintiff’s statement, and 

she confirmed to him that, in fact, she had already given Plaintiff the day off. 

The next day, March 24, (the day before Good Friday), Plaintiff 

initiated a conversation with Bieder regarding her comments to him two days 

earlier when she approved his request to take the day off. Plaintiff explained 

that he “ ‘didn’t appreciate a lot of the things’ ” that Bieder had said about 

him in their prior meeting. 

Rolke, who was in the next room at the time, overheard Plaintiff and 

Bieder. Although what Rolke heard was “muffled,” he described the 

exchange as “an argument” between Plaintiff and Bieder. Just as Bieder left 

the meeting with Plaintiff, Rolke saw Bieder, who “was practically near 

breaking down into tears.” In response to Rolke’s inquiry as to the cause of 

Bieder’s apparent upset, Bieder explained to Rolke that “ ‘[Plaintiff] was 

badgering me about taking a day off, which he was already given.’ ” 

Within minutes, Rolke called Vedrick (in human resources) with Bieder

still present. Rolke instructed Vedrick to have Plaintiff terminated at the 

end of that workday. In response to Vedrick’s inquiry as to why, Rolke

explained: “ ‘Because [Plaintiff] had disrespectful behavior’ ”: “One, . . . he 

had made a snarky comment about getting a day off, and . . . two, he was 

arguing with the supervisor [(Bieder)] within the first week of being hired . . .

to the point of where [she] was practically in tears.” Defendant contacted 

4 Rolke testified that what he heard Plaintiff say was, “ ‘Good luck 

getting a day off.’ ” Given the appropriate standard on appeal (McDonald, 

supra, 45 Cal.4th at pp. 96-97), for purposes of this appeal, we consider 

Plaintiff’s recollection of what he said rather than Rolke’s recollection of what 

he heard.
5

BioPhase (the staffing agency), and on that evening, Thursday, March 24, 

Plaintiff received a telephone call from BioPhase informing him that his 

placement with Defendant was terminated due to his “ ‘bad attitude.’ ” 

The following Monday, March 28, Plaintiff sent Rolke an email in 

which he (Plaintiff) complained about what had happened the prior week 

after his “request to take Friday off work.” Throughout the one full page 

single-spaced email, Plaintiff did not once mention religion or Good Friday, 

instead describing the reason that he asked for the time off as follows: “[M]y 

request to take the day off on Friday [was] to help get me set up so I can work 

for you better [sic].” Rolke immediately forwarded Plaintiff’s email to 

Vedrick, advising and clarifying: “[Plaintiff] wasn’t let go because he wanted 

the Friday off. He was let go because he was argumentative and 

disrespectful to his supervisor during his first week” of temporary work for 

Defendant. 

II. PROCEDURAL BACKGROUND

In March 2017, Plaintiff filed a “complaint for religious discrimination 

in violation of [the FEHA],” in which he alleged one cause of action for 

“religious discrimination” against Defendant and BioPhase.5 (Some 

capitalization omitted.) More specifically, Plaintiff claimed that, in violation 

of specified provisions of the FEHA and related regulations, Defendant 

“decided to terminate Plaintiff due to his actual and perceived religious 

beliefs, as retaliation for his opposition to [Bieder’s] religious discrimination 

and harassment, and as a preemptive way to deny him the accommodation of 

taking Good Friday as a day off from work.” 

5 BioPhase moved for and was granted summary judgment in June 2018. 

BioPhase is not a party to this appeal.
6

Defendant moved for summary judgment on the basis that Plaintiff 

could not produce evidence of pretext or discrimination sufficient to raise a 

triable issue of material fact. Plaintiff opposed the motion, Defendant replied 

to the opposition, Plaintiff filed a surreply to the reply, and the trial court 

entertained oral argument. By written order, the court granted Defendant’s 

motion, ruling that Defendant established a nondiscriminatory reason for the 

termination of employment—i.e., Plaintiff’s bad attitude—and Plaintiff did 

not meet his responsive burden of establishing a triable issue of material fact 

as to whether Defendant’s stated reason was pretextual. As part of its order, 

the court also ruled that Plaintiff’s cause of action for discrimination based on 

religious creed (§ 12940, subd. (l)) did not sufficiently plead a claim for 

retaliation (§ 12940, subd. (h)) or harassment (§ 12940, subd. (j)). 

The court entered judgment in October 2018, and Plaintiff timely 

appealed. 

III. DISCUSSION

On appeal, Plaintiff argues: (1) Defendant failed to provide him with a 

statutorily required religious accommodation; (2) in response to Defendant’s 

evidence of a nondiscriminatory reason for terminating his employment, 

Plaintiff met his burden of establishing a triable issue of material fact as to 

whether Defendant’s stated reason was pretextual; and (3) Plaintiff 

sufficiently pled a claim for retaliation.6 As we explain, Plaintiff has not met 

his burden of establishing reversible error: (1) Defendant presented a 

legitimate, nondiscriminatory reason for terminating Plaintiff’s employment; 

(2) Plaintiff did not meet his responsive burden of presenting evidence, or 

inferences from evidence, of a pretext or a discriminatory or retaliatory 

6 On appeal, Plaintiff abandoned his claim for harassment. 
7

motive or intent for the termination; and (3) even if Plaintiff sufficiently pled 

retaliation, the claim does not survive Defendant’s summary judgment 

motion.

A. Summary Judgment Under the FEHA

1. General Standards of Appellate Review

Because the trial court’s judgment is presumed correct, the appellant 

has the burden of affirmatively establishing reversible error. (Jameson v. 

Desta (2018) 5 Cal.5th 594, 609; Claudio v. Regents of the University of 

California (2005) 134 Cal.App.4th 224, 252 [appeal from defense summary 

judgment in FEHA action (Claudio).) 

“On appeal after a motion for summary judgment has been granted, we 

review the record de novo, considering all the evidence set forth in the 

moving and opposition papers[.]” (Guz v. Bechtel National, Inc. (2000) 24 

Cal.4th 317, 334 (Guz) [FEHA age discrimination claim]; accord, Aguilar v. 

Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860 (Aguilar).) 

A defendant is entitled to a summary judgment on the basis that the 

“action has no merit” (Code Civ. Proc., § 437c, subd. (a)) only where the court 

is able to determine from the evidence presented 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 cause of 

action “has no merit” if one or more of the elements of the cause of action 

cannot be established or an affirmative defense to the cause of action can be 

established as a matter of law. (Code Civ. Proc., § 437c, subd. (o).)

Thus, the moving defendant has the ultimate burden of persuasion7

that one or more elements of the cause of action at issue “cannot be 

7 The burden of persuasion, sometimes referred to as the burden of proof, 

means the obligation of a party “to establish by evidence a requisite degree of 
8

established” or that “there is a complete defense to the cause of action.”

(Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at pp. 849, 

850, 853-854.) In attempting to achieve this goal, the defendant has the 

initial burden of production8 to make a prima facie showing of the 

nonexistence of any triable issue of material fact. (Code Civ. Proc., § 437c, 

subd. (p)(2); Aguilar, at p. 850.) If the defendant meets this burden, then the 

burden of production shifts to the plaintiff to establish the existence of a 

triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, 

at pp. 850-851.)

2. The FEHA

a. Substantive Law

At issue in this appeal is the FEHA’s prohibition on an employment 

practice that discriminates based on an employee’s religious creed, based on a 

failure to accommodate a request for an accommodation of an employee’s 

religious belief or observance, and based on retaliation against an employee’s 

opposition to these specified practices. (§ 12940.9) As applicable to Plaintiff’s 

claims, section 12940 includes as unlawful employment practices:

“For an employer, because of the . . . religious creed . . . of 

any person, . . . to discharge the person from employment

belief concerning a fact in the mind of the trier of fact or the court.” (Evid. 

Code, § 115.) 

8 The burden of production means “the obligation of a party to introduce 

evidence sufficient to avoid a ruling against him on the issue.” (Evid. Code, 

§ 110.)

9 Plaintiff’s cause of action arose out of activities that took place in 

March 2016. The portions of the subdivisions of section 12940 at issue in this 

appeal have not changed since 2016. (Compare Stats. 2015, ch. 122, § 2, eff. 

Jan. 1, 2016, with Stats. 2018, ch. 955, § 2, eff. Jan. 1, 2019.)
9

. . . or to discriminate against the person in . . . or privileges 

of employment” (§ 12940, subd. (a));

“For an employer . . . to discharge a person from 

employment . . . or to discriminate against a person in . . .

privileges of employment because of a conflict between the 

person’s religious belief or observance and any employment 

requirement, unless the employer . . . demonstrates that it 

has explored any available reasonable alternative means of 

accommodating the religious belief or observance, . . . but is 

unable to reasonably accommodate the religious belief or 

observance without undue hardship . . . . Religious belief or 

observance, as used in this section, includes, but is not 

limited to, observance of a Sabbath or other religious holy 

day or days, reasonable time necessary for travel prior and 

subsequent to a religious observance” (§ 12940, subd. (l)(1));

“For an employer . . . to, in addition to the employee 

protections provided pursuant to subdivision (h), retaliate 

or otherwise discriminate against a person for requesting 

accommodation under [section 12940, subdivision (l)], 

regardless of whether the request was granted” (§ 12940, 

subd. (l)(4)); and 

“For any employer . . . to discharge, expel, or otherwise 

discriminate against any person because the person has 

opposed any practices forbidden under this part or because 

the person has filed a complaint, testified, or assisted in 

any proceeding under [the FEHA]” (§ 12940, subd. (h)). 

For purposes of section 12940, “ ‘[r]eligious creed,’ ‘religion,’ ‘religious 

observance,’ ‘religious belief,’ and ‘creed’ include all aspects of religious belief, 

observance, and practice, including religious dress and grooming practices.”

(§ 12926, subd. (q).) In addition, “ ‘[r]eligious creed’ includes any traditionally 

recognized religion as well as beliefs, observances, or practices, which an 

individual sincerely holds and which occupy in his or her life a place of 

importance parallel to that of traditionally recognized religions.” (Cal. Code 

Regs., tit. 2, § 11060.)
10

Under section 12940, subdivision (l), there are three elements to a 

prima facie case for religious creed discrimination based on disparate 

treatment:10 “the employee sincerely held a religious belief; the employer 

was aware of that belief; and the belief conflicted with an employment 

requirement.” (California Fair Employment & Housing Com. v. Gemini 

Aluminum Corp. (2004) 122 Cal.App.4th 1004, 1011 (Gemini Aluminum).) 

In opposing Defendant’s summary judgment motion, Plaintiff argued only 

discrimination based on disparate treatment. 

By contrast, where the employee’s disparate treatment claim is that the 

employer failed to accommodate a religious practice, the employee does not 

have to show “ ‘actual knowledge’ of the [employee’s] need for an 

accommodation”; the employee “need only show that his need for an 

accommodation was a motivating factor in the employer’s decision.” (EEOC 

v. Abercrombie & Fitch Stores, Inc. (2015) 575 U.S. 768, __ [135 S.Ct. 2028, 

2032] (Abercrombie & Fitch) [under title VII of the Civil Rights Act of 1964, 

42 U.S.C. § 2000e et seq.11].) Thus, to prevail on a failure to accommodate 

claim, the employee must show: The employee held a bona fide religious 

belief, the practice of which conflicted with an employment duty; the 

employee’s religious belief or religious practice was a “motivating factor” in 

the employer’s decision; and the employer took adverse action (e.g., discharge 

10 “ ‘Disparate treatment’ is intentional discrimination against one or 

more persons on prohibited grounds” as opposed to “ ‘disparate impact,’ ”

which focuses on the adverse effect of a “facially neutral” employment 

practice. (Guz, supra, 24 Cal.4th at p. 354, fn. 20; see CACI No. 2500, 

Directions for Use.) 

11 “Because of the similarity between state and federal employment 

discrimination laws, California courts look to pertinent federal precedent 

when applying our own statutes.” (Guz, supra, 24 Cal.4th at p. 354.)
11

or refusal to accommodate) because of the employee’s inability to fulfill the 

job requirement. (Abercrombie & Fitch, at p. __ [pp. 2032-2033].) In short, 

“the rule for disparate-treatment claims based on a failure to accommodate a 

religious practice is straightforward: An employer may not make an 

[employee’s] religious practice, confirmed or otherwise, a factor in 

employment decisions.” (Id. at p. __, [p. 2033].)

Finally, “to establish a prima facie case of retaliation under the FEHA, 

[the employee] must show (1) he or she engaged in a ‘protected activity, 

(2) the employer subjected the employee to an adverse employment action, 

and (3) a causal link existed between the protected activity and the 

employer’s action.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028,

1042 (Yanowitz).) These elements of a section 12940, subdivision (h) claim 

for retaliation under the FEHA “ ‘are substantially the same as those for 

disparate treatment except that instead of having to show that the action was 

motivated by animus toward the plaintiff as a member of the protected class, 

the plaintiff must show that the motive was retaliatory animus.’ ” (Cornell v. 

Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 941-942 (Cornell).)

b. Procedural Law

An employer may move for summary judgment against a 

discrimination cause of action with evidence of a legitimate, 

nondiscriminatory reason for the adverse employment action. (Guz, supra, 

24 Cal.4th at p. 357.) Such a reason is one that is unrelated to prohibited 

bias and that, if true, would preclude a finding of discrimination. (Id. at 

p. 358.) “The employer’s evidence must be sufficient to allow the trier of fact 

to conclude that it is more likely than not that one or more legitimate, 

nondiscriminatory reasons were the sole basis for the adverse employment 
12

action.” (Featherstone v. Southern California Permanente Medical Group

(2017) 10 Cal.App.5th 1150, 1158 (Featherstone).) 

By presenting evidence of a legitimate, nondiscriminatory reason for 

the adverse employment action, the employer shifts the burden to the 

employee to present evidence that the employer’s decision was motivated at 

least in part by prohibited discrimination.12 (Guz, supra, 24 Cal.4th at 

pp. 353, 357.) The stronger the employer’s showing of a legitimate, 

nondiscriminatory reason, the stronger the employee’s evidence must be in 

order to create a reasonable inference of a discriminatory motive. (Id. at 

p. 362 & fn. 25 [a plaintiff’s “circumstantial evidence of intentional 

discrimination, even if fully credited and technically sufficient to establish a 

prima facie case, raises, at most, a weak inference of prohibited bias”].) 

Although the employee’s evidence submitted in opposition to an employer’s 

motion for summary judgment is construed liberally (see fn. 1, ante), it 

“ ‘remains subject to careful scrutiny.’ ” (Featherston, supra, 10 Cal.App.5th

at p. 1159.) The employee’s “ ‘subjective beliefs in an employment 

discrimination case do not create a genuine issue of fact; nor do 

12 This procedure, often referred to as the McDonnell Douglas test or 

formula, is derived from the three-stage burden-shifting procedure

established by the United States Supreme Court for use at trial in cases 

involving claims (like Plaintiff’s) of employment discrimination based on 

disparate treatment. (Guz, supra, 24 Cal.4th at pp. 354, 357, citing 

McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792.) At trial, a plaintiff 

has the initial burden to establish a prima facie case of employment 

discrimination. (Guz, at p. 354.) By contrast, in a summary judgment 

motion, the “moving defendant has the initial burden to show that a cause of 

action has no merit (Code Civ. Proc., § 437c, subd. (p)(2))” and, therefore, has 

“the initial burden to present evidence that its decision was motivated solely 

by legitimate, nondiscriminatory reasons.” (Featherstone, supra, 10 

Cal.App.5th at p. 1159, fn. 4.)
13

uncorroborated and self-serving declarations’ ”; instead, the employee’s 

evidence “must relate to the motivation of the decision makers and prove, by 

nonspeculative evidence, ‘an actual causal link between prohibited motivation 

and termination.’ ” (Ibid., italics added.)

To show that the employer’s reason for termination is pretextual,13

the employee “ ‘ “must demonstrate such weaknesses, implausibilities, 

inconsistencies, incoherencies, or contradictions in the employer’s proffered 

legitimate reasons for its action that a reasonable factfinder could rationally 

find them ‘unworthy of credence,’ ” ’ ” and hence infer ‘ “that the employer did 

not act for [the asserted] nondiscriminatory reasons.” ’ ” (Featherstone, 

supra, 10 Cal.App.5th at p. 1159.) “[I]f nondiscriminatory, [the employer’s] 

true reasons need not necessarily have been wise or correct.” (Guz, supra, 24 

Cal.4th at p. 358.) The FEHA “ ‘ “ ‘addresses discrimination.’ . . . “ ‘[It] is not 

a shield against harsh treatment at the workplace.’ ” ’ . . . ‘ “[T]he mere fact 

that an employee is displeased by an employer’s act or omission does not 

elevate that act or omission to the level of a materially adverse employment 

action” ’ ” for purposes of the FEHA. (Doe v. Department of Corrections & 

Rehabilitation (2019) 43 Cal.App.5th 721, 735 (Doe); see Diego, supra, 15 

Cal.App.5th at p. 355 [“even if otherwise unfair,” an employment decision not 

based on “protected status” under the FEHA is not actionable].) “While the 

13 Evidence is sufficient to find pretext if it establishes “ ‘ “that the 

employer’s asserted justification is false[.]” ’ ” (Diego v. City of Los Angeles

(2017) 15 Cal.App.5th 338, 351 (Diego); see also McRae v. Department of 

Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 388 [pretextual 

evidence establishes “that the presumptively valid reason for the employer’s 

action was in fact a coverup”]; O’Regan v. Arbitration Forums, Inc. (7th Cir.

2001) 246 F.3d 975, 983 [“Pretext ‘means a dishonest explanation, a lie rather 

than an oddity or an error’ ”].)
14

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 . . . in this 

context are reasons that are facially unrelated to prohibited bias, and which, 

if true, would thus preclude a finding of discrimination.” (Guz, at p. 358, 

italics & citations omitted.)

Like FEHA discrimination claims, at trial FEHA retaliation claims are 

subject to the same McDonnell Douglas burden-shifting framework. (Cornell, 

supra, 18 Cal.App.5th at p. 942.) Thus, where the employee is able to 

establish a prima facie case, the burden is on the employer to identify “a 

legitimate, nonretaliatory reason for the adverse employment action”; and if 

the employer meets this standard, then “the burden shifts back to the 

employee to prove intentional retaliation.” (Yanowitz, supra, 36 Cal.4th at 

p. 1042.) In summary judgment proceedings, FEHA retaliation claims are 

also treated the same as FEHA discrimination claims: Where “ ‘ “the 

employer presents admissible evidence either that one or more of [the 

employee’s] prima facie elements is lacking, or that the adverse employment 

action was based on legitimate, nondiscriminatory [or nonretaliatory] factors, 

the employer will be entitled to summary judgment unless the [employee]

produces admissible evidence which raises a triable issue of fact material to 

the [employer’s] showing.” ’ ” (Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th

327, 344 (Arteaga), italics omitted.)

B. Analysis

As we explain, the trial court properly granted summary judgment. 

Defendant presented a legitimate, nondiscriminatory reason for terminating 

Plaintiff’s employment, and Plaintiff did not meet his responsive burden of 
15

establishing either a pretext or a discriminatory or retaliatory motive for the 

termination.

1. Defendant Presented a Legitimate, Nondiscriminatory Reason

for Terminating Plaintiff’s Employment

For purposes of determining whether an employer’s allegedly 

nondiscriminatory reason is “legitimate,” Guz requires that it must be one 

that is “facially unrelated to prohibited bias, and which, if true, would thus 

preclude a finding of discrimination.” (Guz, supra, 24 Cal.4th at p. 358.) 

Here, Defendant presented evidence that, after having been given the 

day off, Plaintiff made a “snarky comment” and was “very disrespectful.” 

This evidence included two incidents, both of which occurred at a time when 

Plaintiff had been employed by Defendant for less than two weeks. First, 

Plaintiff made a sarcastic comment to a roomful of other employees, including 

Rolke, to the effect that, when it comes to taking time off from work, just 

“ ‘don’t take off for Good Friday[.]’ ” Second, the next day, Rolke overheard 

what he described as “an argument” between Plaintiff and Bieder, Plaintiff’s 

supervisor. Bieder “was practically near breaking down into tears” after 

Plaintiff confronted her, “badgering [her] about taking a day off, which he 

was already given.’ ” Based on these incidents, Defendant terminated 

Plaintiff “for having a ‘bad attitude.’ ” 

In addition to the evidence of bad attitude, the uncontradicted evidence 

is that Rolke was the person responsible for termination decisions in the 

department in which Plaintiff worked, Rolke made the decision to terminate 

Plaintiff’s employment, and at the time he made that decision Rolke was 

unaware that Plaintiff had requested the day off to observe Good Friday.14 

14 In support of its summary judgment motion, Defendant included the 

following undisputed material fact, fully supported by cited evidence from 

Rolke’s deposition: “At the time Rolke made the decision to terminate 
16

This evidence establishes the requisite legitimate, nondiscriminatory reason 

for Defendant’s decision to terminate Plaintiff’s employment. The reason is 

unrelated to prohibited acts under section 12940 and, if true, would preclude 

a finding of discrimination. 

Plaintiff argues that “Rolke’s claimed ignorance strains credulity in 

light of his many meetings and conversations with Bieder and Vedrick on the 

subject.” However, “strain[ing] credulity” is not the standard; Plaintiff was 

required to cite to “nonspeculative evidence” that establishes “ ‘an actual 

causal link between prohibited motivation and termination.’ ” (Featherstone, 

supra, 10 Cal.App.5th at p. 1159.) Plaintiff’s “ ‘subjective beliefs in an 

employment discrimination case do not create a genuine issue of fact.’ ” 

(Ibid.)

Relying on Reeves v. Safeway Stores (2004) 121 Cal.App.4th 95 

[retaliation claim, which requires a showing “ ‘that the offensive act would 

not have happened but for’ ” the discrimination], Plaintiff further suggests 

that, even if Rolke did not have knowledge of the religious origin of Plaintiff’s 

request, “it does not excuse [Defendant’s] failure as an employer to provide a 

legally mandated accommodation . . . without discrimination or retaliation.” 

However, Reeves is distinguishable. As Plaintiff acknowledges, a defense of 

“the employer’s ignorance” only applies where “ ‘it extends to all corporate 

actors who contributed materially to an adverse employment decision.’ ” 

[Plaintiff], he was unaware of the reason (Good Friday) that [Plaintiff] had 

requested the day.” In support of his opposition to the motion, Plaintiff’s 

response to this material fact was: “Disputed. Rolke was made aware of the 

reason [Plaintiff] requested Friday, March 25, 2016, off from work.” 

However, the evidence on which Plaintiff relied to dispute this fact—i.e., 

portions of the deposition testimony from Bieder, Rolke and Vedrick—

contains neither direct nor circumstantial evidence (or inferences) to support 

Plaintiff’s dispute of Defendant’s proffered material fact. 
17

(Quoting Reeves, at p. 109.) That is because “a defendant does not

conclusively negate the element of causation by showing only that some 

responsible actors, but not all, were ignorant of the occasion for retaliation”. 

(Ibid.) In Reeves, the ultimate decisionmaker “was not the only actor who 

materially contributed to plaintiff’s discharge”; to the contrary, she merely 

“ratifi[ed]” the adverse employment recommendation made by a person with 

knowledge of the plaintiff’s prior complaints about incidents of discrimination 

in the workplace. (Id. at p. 110.) Here, on this record, Rolke was the sole 

decisionmaker, and he had no knowledge of any religious basis for Plaintiff’s 

request for the day off.

Likewise, Plaintiff’s reliance on Gemini Aluminum, supra, 122 

Cal.App.4th 1004 is misplaced. There, the plaintiff’s supervisor “knew [the 

plaintiff] was a Jehovah’s Witness and wanted the days off to attend his 

annual religious convention.” (Id. at p. 1015.) In contrast to our case, 

however, in Gemini Aluminum the plaintiff’s supervisor was not only “the 

person responsible for taking the [plaintiff’s] request to management,” but he 

“was also a member of the management committee which would grant or 

deny the request.” (Id. at pp. 1009-1010; see id. at p. 1015.)

In the present case, the only evidence is that Rolke—not Bieder, 

Vedrick, or anyone else—“was responsible for termination decisions” in the 

department to which Plaintiff had been assigned.15 Had Plaintiff intended 

to apply a vicarious liability theory to establish discrimination, at a minimum 

15 During cross-examination of Rolke at his deposition, Rolke testified 

that, for his department, “All decisions to terminate are made by me.” There 

is no evidence either that Bieder or Vedrick told Rolke about the religious 

reason for Plaintiff’s requested day off or that Bieder or Vedrick had any role 

in Rolke’s decision to terminate Plaintiff’s employment.
18

he would have had to have shown that Bieder was Defendant’s agent for 

purposes of terminating Plaintiff’s employment. (See Gemini Aluminum, 

supra, 122 Cal.App.4th at p. 1015 [discussion of “agen[cy] for purposes of 

vicarious liability for unlawful discrimination”].) In Gemini Aluminum, for

example, the “decision makers were the members of the management 

committee,” and the employee’s supervisor who had knowledge of the alleged 

discrimination at the time of the adverse employment decision “was a 

member of that committee.” (Ibid.) Because Plaintiff has made no similar 

showing here, there is no basis on which Plaintiff can claim that, for purposes 

of Defendant’s decision to terminate Plaintiff’s employment, Bieder’s (or 

Vedrick’s) knowledge either should be imputed to Defendant or is a basis on 

which to conclude that Bieder (or Vedrick) had a duty to disclose information 

to Rolke regarding the allegedly religious nature of Plaintiff’s request.

2. Plaintiff Did Not Meet His Responsive Burden of Establishing a 

Pretext or Discriminatory Motive for the Termination

We now turn to Plaintiff’s presentation to determine whether he met 

his responsive burden. Our inquiry is whether there is “evidence supporting 

a rational inference that intentional discrimination, on grounds prohibited by 

the statute, was the true cause of the employer’s actions.” (Guz, supra, 24 

Cal.4th at p. 361, italics omitted.) Thus, as applicable here, we consider

whether Plaintiff has presented sufficient evidence—or “inferences 

reasonably deducible from the evidence”16 (Code Civ. Proc., § 437c, 

16 Plaintiff may rely on inferences from direct evidence or from 

circumstantial evidence. (See Harris v. City of Santa Monica (2013) 56 

Cal.4th 203, 232 [“the law generally makes no distinction between 

circumstantial and direct evidence[;] . . . both types of evidence can be 

persuasive in discrimination cases”]; Desert Palace, Inc. v. Costa (2003) 539 

U.S. 90, 99 [Title VII “requires a plaintiff to prove his case . . . using ‘direct or 

circumstantial evidence’ ”].)
19

subd. (c))—to allow a factfinder at trial to conclude that Defendant 

intentionally discriminated against him based on religious creed in violation 

of section 12940.

a. Direct Evidence

According to his opening brief on appeal, Plaintiff contends that the 

record contains direct evidence of discrimination, relying on: (1) “Bieder’s 

hostility toward Plaintiff’s request [for the day off]”; and (2) “Rolke’s 

admission that termination was based on Plaintiff’s protected conduct being 

‘disrespectful’ and demonstrating a ‘bad attitude.’ ” (Some initial 

capitalization omitted.) We disagree.

With regard to Bieder’s alleged hostility, Plaintiff focuses on Bieder

having “called him ‘lazy,’ a ‘dumbass’ ” and having “told him his request was 

‘a sloppy choice.’ ”17 Plaintiff then argues that, because Bieder was “a 

“ ‘[D]irect evidence’ means evidence that directly proves a fact, without 

an inference or presumption, and which in itself, if true, conclusively 

establishes that fact.” (Evid. Code, § 410.) In the context of a FEHA discrimination 

case, “[d]irect evidence is evidence which, if believed, proves the fact of 

discriminatory animus without inference or presumption. Comments 

demonstrating discriminatory animus may be found to be direct evidence if 

there is evidence of a causal relationship between the comments and the 

adverse job action at issue.” (DeJung v. Superior Court (2008) 169 

Cal.App.4th 533, 550 (DeJung), discussed in the text, post.)

The term “circumstantial evidence” emphasizes the effect of the 

evidence—i.e., the necessity of drawing inferences from it. “An inference is a 

deduction of fact that may logically and reasonably be drawn from another 

fact or group of facts found or otherwise established in the action.” (Evid.

Code, § 600, subd. (b).)

17 In the next sentence of his brief, Plaintiff tells us that there is direct 

evidence that “Bieder also told Rolke that she believed Plaintiff was being 

untruthful about the religious purpose of his request.” (Italics added.) 

Because Plaintiff failed to provide a record reference for this assertion, we 

disregard it. (Delta Stewardship Council Cases (2020) 48 Cal.App.5th 1014, 
20

supervisor who was involved in the adverse employment action,” this direct 

evidence establishes that “unlawful discrimination played a role in the 

decision.” The problem with Plaintiff’s approach is that the record does not 

support the premise for Plaintiff’s argument—namely, that Bieder “was 

involved in the adverse employment action.” To the contrary, as we 

explained at part III.B.1., ante, the record establishes that only Rolke made 

the decision to terminate Plaintiff’s employment. (See fn. 14 and related text, 

ante.) In addition, despite using language that Plaintiff finds offensive, 

Bieder approved Plaintiff’s request in its entirety. While Bieder’s comments 

may evidence rude behavior or a personal animosity, neither is evidence of 

religious discrimination in violation of the FEHA. (See Lyle v. Warner 

Brothers Television Productions (2006) 38 Cal.4th 264, 295 (Lyle) [“the FEHA 

is ‘not a “civility code” ’ ”]18; Doe, supra, 43 Cal.App.5th at p. 735 [the FEHA 

1079; Cal. Rules of Court, rule 8.204(a)(1)(C).) In any event, based on our 

own review of the record, we are satisfied that, for purposes of opposing 

Defendant’s motion, Plaintiff was unaware of such evidence.

First, in his response to Defendant’s undisputed fact No. 29, Plaintiff

agreed that, in discovery responses, he did not identify Rolke as “a person 

having ‘knowledge’ of ‘any ADVERSE EMPLOYMENT ACTIONS’ taken 

against [Plaintiff] which ‘were discriminatory.’ ” 

Additionally, in disputing Defendant’s undisputed fact No. 35, in part 

Plaintiff told the trial court: “[Rolke] based his decision [to terminate 

Plaintiff] on three conversations he had with Bieder, one Wednesday 

morning, another Wednesday evening, and the third occurring Thursday 

morning. Rolke also convened on a phone call with [Vedrick] and Bieder 

regarding the decision to terminate.” In support of his response, Plaintiff

cited portions of deposition testimony from Rolke, Bieder, and Vedrick. None 

of that testimony contains evidence, or any inference from the testimony, that 

Bieder told Rolke that Plaintiff’s request for a day off had a “religious 

purpose”—as Plaintiff tells us in his appellate brief.

18 In Lyle, our Supreme Court recognized that “the use of sexually coarse 

and vulgar language in the workplace can . . . constitute harassment because 
21

“is not a shield against harsh treatment at the workplace”]; Slatkin v. 

University of Redlands (2001) 88 Cal.App.4th 1147, 1157 (Slatkin) [where a 

personal grudge constitutes a “legitimate, nondiscriminatory reason” for an 

adverse employment decision, the plaintiff does not have a claim for 

discrimination]; Guz, supra, 24 Cal.4th at p. 358 [“if nondiscriminatory, [the 

employer]’s true reasons need not necessarily have been wise or correct”].)

Plaintiff’s reliance on DeJung, supra, 169 Cal.App.4th 533 is misplaced. 

In DeJung, a former part-time court commissioner brought a FEHA age 

discrimination case against the Sonoma County Superior Court. (Id. at 

p. 538.) The court’s executive committee made the decision to appoint a 

fulltime commissioner and established a screening panel and an interview 

panel for the recruitment process. (Id. at p. 541.) During the time at which 

the executive committee decided not to rehire the plaintiff on a part-time 

basis and the time at which the court offered the fulltime position to a 

younger man, the court’s presiding judge—who was also chair of the 

executive committee—told the plaintiff and others that the court was looking 

to hire someone younger than the plaintiff.19 (Id. at pp. 541-542.) In 

support of its motion for summary judgment, the defendant court argued that 

the presiding judge’s comments, “if made, did not taint its decisionmaking 

of sex . . . depending on the circumstances.” (Lyle, supra, 38 Cal.4th at 

p. 295, italics added.) We need not consider whether Bieder’s actions might 

constitute harassment because of religion, since Plaintiff here expressly 

withdrew his claim for harassment. 

19 At the time of the hiring decision, 12 candidates, including the plaintiff, 

had been interviewed. (DeJung, supra, 169 Cal.App.4th at p. 541.) The 

plaintiff was 64 years old, the other applicants were between the ages of 37 

and 62, and the applicant who was offered the position was 43 years old. (Id.

at pp. 541, 542, & fn. 4.)
22

process because the hiring decision involved a multi-level process conducted 

by multiple individuals.” (Id. at pp. 550-551.) The Court of Appeal rejected 

this argument, ruling that, although “[the plaintiff] need not demonstrate 

that every individual who participated in the failure to hire him shared 

discriminatory animus in order to defeat a summary judgment motion, . . .

[by] showing that a significant participant in an employment decision

exhibited discriminatory animus is enough to raise an inference that the 

employment decision itself was discriminatory.” (Id. at p. 551, italics added.) 

Very simply, in DeJung, the person who allegedly “exhibited discriminatory 

animus” was the defendant court’s presiding judge who also chaired the 

court’s executive committee (id. at pp. 541-542); whereas, in contrast, in the 

present case, there is no evidence that Bieder had any role in the decision to 

terminate Plaintiff’s employment.

For the foregoing reasons, Plaintiff did not meet his responsive burden 

of producing direct evidence to establish the existence of a triable issue of 

material fact as to whether Defendant intentionally discriminated against 

him based on religious creed in violation of section 12940. (Code Civ. Proc., 

§ 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at pp. 850-851.)

b. Circumstantial Evidence

Plaintiff argues that certain circumstantial evidence supports 

an inference of Defendant’s unlawful motivation or pretext. An inference is 

“a deduction of fact that may logically and reasonably be drawn from another 

fact or group of facts found or otherwise established in the action.” (Evid. 

Code, § 600, subd. (b).) As applicable here, “[s]peculation . . . is not evidence” 

(Aguilar, supra, 25 Cal.4th at p. 864), and an appellant opposing summary 

judgment “cannot rely on ‘speculation, conjecture, imagination, or 

guesswork’ ” (Granadino v. Wells Fargo Bank, N.A. (2015) 236 Cal.App.4th 
23

411, 418). Moreover, just as at trial, on summary judgment the inferences a 

plaintiff relies on must satisfy the “more likely than not” evidentiary 

standard. (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 487.)

Here, Plaintiff relies on the following circumstantial evidence to 

support inferences of discrimination: (1) Defendant’s “vague and subjective 

‘bad attitude’ rationale”; (2) Defendant’s “biased and defective fact finding”; 

and (3) “ the close timing between [Plaintiff’s] protected conduct and [his] 

termination.”20 As we explain, Plaintiff did not meet his responsive burden.

20 In response to our request for supplemental briefing from the parties, 

Plaintiff argues that we should infer that Rolke knew Plaintiff had requested 

the day off for religious reasons from his statement to a group of employees, 

including Rolke, one day before the termination, “ ‘Oh, don’t take off for Good 

Friday though.’ ” (Italics added.) We reject Plaintiff’s contention. 

First, Plaintiff did not argue this inference in his appellate briefing. 

Because the judgment is presumed correct (Claudio, supra, 134 Cal.App.4th 

at p. 252), our review on appeal “ ‘is limited to issues which have been 

adequately raised and supported in [the appellant’s] brief.’ ” (Palm Springs 

Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 279, 

fn. 4; accord, Golightly v. Molina (2014) 229 Cal.App.4th 1501, 1519; Claudio, 

at p. 230.) Any other procedure would be “manifestly unjust to the opposing 

parties, unfair to the trial court, and contrary to judicial economy.” (North 

Coast Bus. Park v. Nielsen Constr. Co. (1993) 17 Cal.App.4th 22, 29.)

Moreover, in his discovery responses, which formed the basis of an 

undisputed material fact in the summary judgment proceedings, Plaintiff 

“did not identify Rolke as a person having ‘knowledge’ of ‘any ADVERSE 

EMPLOYMENT ACTIONS’ taken against [Plaintiff] which ‘were 

discriminatory.’ ” Having taken this position, Plaintiff cannot now argue 

that, from the evidence that Rolke thought Plaintiff’s statement was “snarky”

and “disrespectful,” we should infer that Rolke—and, thus, Defendant—had a 

discriminatory motive when terminating Plaintiff’s employment. Had 

Plaintiff in fact relied on the inference from this evidence, he should have 

included it with his summary judgment opposition in the trial court and 

attempted to amend his discovery responses to identify Rolke as someone 

with knowledge of the allegedly discriminatory termination of employment.
24

First, Plaintiff argues that, because Defendant’s expressed basis for the 

termination (i.e., Plaintiff’s “bad attitude”) was “ ‘excessively subjective and 

vague,’ ” he has not been given a “ ‘reasonable opportunity to rebut’ ” 

Defendant’s showing of a legitimate, nondiscriminatory reason for 

terminating Plaintiff’s employment. (Quoting Morgan v. Regents of 

University of California (2000) 88 Cal.App.4th 52, 75, internal quotation 

marks omitted.) Initially, by concluding that Defendant met its initial 

burden in presenting a legitimate, nondiscriminatory reason for terminating

Plaintiff’s employment (see pt. III.B.1., ante), we have already determined 

that Plaintiff’s “bad attitude”—i.e., Defendant’s stated reason for 

termination—is neither excessively subjective nor vague. In any event, since 

Plaintiff’s premise is faulty, his conclusion necessarily fails. Here, Defendant 

has been consistent and clear: The two bases for Rolke concluding that 

Plaintiff demonstrated a bad attitude are (1) Plaintiff’s sarcastic comment in 

a room of other employees, and (2) Plaintiff’s argument with his direct 

supervisor (Bieder) that left her practically in tears. Such behavior by 

Plaintiff does show a bad attitude, and describing it as such is neither 

excessively subjective nor vague.

Plaintiff next suggests that, where an employer conducts an 

investigation or otherwise assesses potential employee misconduct, a 

“defective fact finding” investigation “may itself support an inference of 

discrimination.” More specifically, Plaintiff argues that, in summary 

judgment proceedings, the burden does not shift to the employee to establish 

pretext “ ‘until the employer shows that the procedure by which the employee 

was terminated was validly and fairly devised and administered to serve a

legitimate business purpose.’ ” (Quoting Gemini Aluminum, supra, 122 

Cal.App.4th at p. 1022.) Again, we have already concluded that Defendant 
25

made a sufficient showing to shift the burden to Plaintiff to establish pretext. 

(See pt. III.B.1., ante.) In any event, Plaintiff cites no authority that required 

Defendant to conduct an investigation, and our independent research has not 

disclosed any. 

Finally, Plaintiff argues that the “ ‘close temporal proximity’ ” between 

his argument with Bieder (over what he characterizes as his “objection to 

[her] abusive response to his original request”) and the termination of his 

employment later that same day “establishes an inference that Plaintiff’s 

termination was caused by his protected statements to Bieder.” (Quoting 

Hodgens v. General Dynamics Corp. (1st Cir. 1998) 144 F.3d 151, 168.) Yet 

again, because here “the employer has offered evidence of a legitimate, 

nondiscriminatory reason for the termination” (see pt. III.B.1., ante), 

“temporal proximity alone is not sufficient to raise a triable issue as to 

pretext.” (Arteaga, supra, 163 Cal.App.4th at p. 353; accord, Light v. 

Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 94 [“a mere

temporal relationship between an employee’s protected activity and the 

adverse employment action, while sufficient for the plaintiff’s prima facie 

case, cannot create a triable issue of fact if the employer offers a legitimate, 

nonretaliatory reason for the adverse action”].) In any event, as we explained 

ante, although “Bieder’s abusive response to [Plaintiff’s] original request” 

may evidence rude behavior or a personal animosity, it does not evidence 

religious discrimination in violation of the FEHA. (See Lyle, supra, 38 

Cal.4th at p. 295 [“the FEHA is ‘not a “civility code” ’ ”]; Doe, supra, 43 

Cal.App.5th at p. 735 [the FEHA does not preclude “harsh treatment at the 

workplace”]; Slatkin, supra, 88 Cal.App.4th 1147, 1157 [a personal grudge 

will not support a claim for discrimination]; Guz, supra, 24 Cal.4th at p. 358 
26

[the employer’s “true reasons need not necessarily have been wise or 

correct”]; see pt. III.B.2.a., ante.)

For the foregoing reasons, Plaintiff has not established reversible error. 

With regard to the issue whether Defendant intentionally discriminated 

against him based on religious creed in violation of section 12940, 

subdivision (l)(1), Plaintiff did not meet his responsive burden of producing 

circumstantial evidence to establish the existence of a triable issue of 

material fact. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, 25 

Cal.4th at pp. 850-851.) To the extent Plaintiff contends that the trial court 

erred in granting summary judgment as to his claim for failure to 

accommodate (§ 12940, subd. (l)(4)), for all of the reasons that Plaintiff did 

not establish reversible error as to the claim of discrimination (§ 12940, 

subd. (l)(1)), summary judgment was also appropriate as to a claim for failure 

to accommodate (§ 12940, subd. (l)(4)).21 

In short, Plaintiff’s “ ‘suspicions of improper motives . . . primarily 

based on conjecture and speculation’ are not sufficient to raise a triable issue 

of fact to withstand summary judgment.” (Kerr v. Rose (1990) 216 Cal.App.3d 

1551, 1564 [wrongful termination].)

21 At oral argument, Plaintiff’s counsel suggested that, for purposes of a 

failure to accommodate (§ 12940,subd. (l)(4)), the mere act of requesting an 

accommodation is sufficient to establish protected conduct. We disagree. 

As we explained at part III.A.2.a. ante, to establish a disparate treatment 

claim based on a failure to accommodate a religious practice, Plaintiff was 

required to show that Rolke “ma[d]e [Plaintiff’s] religious practice, confirmed 

or otherwise, a factor in [terminating him].” (Abercrombie & Fitch, supra, 

575 U.S. at p. __ [135 S.Ct. at p. 2033], italics added.)
27

3. To the Extent Plaintiff Pled a Claim for Retaliation, 

the Grant of Summary Judgment Applies to It, 

and Plaintiff Has Not Established Reversible Error

The trial court granted Defendant’s summary judgment motion, which 

Defendant directed to the complaint, not to any specific claim. In explaining 

its reasoning, in part the court ruled that, in Plaintiff’s “single cause of action 

for discrimination based upon religion[,] Plaintiff did not plead a cause of 

action for retaliation . . . under FEHA, Gov. Code, § 12940[, subd. ](h).” 

On appeal, the parties disagree as to whether the complaint contains 

sufficient allegations to support a claim for retaliation (§ 12940, subd. (h)), in 

addition to a claim for discrimination or failure to accommodate (§ 12940, 

subd. (l)). We will assume without deciding that the complaint adequately 

alleges a claim for retaliation.22 Nonetheless, as we explain, Plaintiff has 

not met his burden of establishing reversible error.

In an appeal from a summary judgment, “we review ‘the ruling, not the 

rationale’ ”; thus, we may affirm on any basis supported by the record and the 

law. (Skillin v. Rady Children’s Hospital – San Diego (2017) 18 Cal.App.5th 

35, 43.) Applying this standard, we conclude that the trial court correctly 

ruled that Defendant was entitled to summary judgment on the complaint—

including the (assumed) claim for retaliation.

One of the elements of a prima facie case of retaliation under the FEHA 

is “a causal link . . . between the [employee’s] protected activity and the 

employer’s action.” (Yanowitz, supra, 36 Cal.4th at p. 1042.) To do this, “ ‘the 

plaintiff must show that the motive was retaliatory animus.’ ” (Cornell, 

supra, 18 Cal.App.5th at pp. 941-942.) “Like FEHA discrimination claims, 

22 Proceeding with this assumption, we deny as unnecessary Plaintiff’s 

request to amend the complaint. 
28

FEHA retaliation claims are subject to the McDonnell Douglas burdenshifting framework.” (Id. at p. 942.) 

As we explained at part III.B.2., ante, because neither direct nor 

circumstantial evidence supports a finding that Rolke knew of the religious 

nature of his request for the day off, Plaintiff did not meet his responsive 

burden of producing evidence to establish the existence of a triable issue of 

material fact as to whether Defendant intentionally discriminated against 

him. For the same reason, Plaintiff has not met, and cannot meet, his 

responsive burden of producing evidence that Defendant’s motive in 

terminating Plaintiff’s employment was retaliatory animus. The decision to 

terminate the employment was a decision made solely by Rolke. (See fn. 14, 

ante.)

Thus, Plaintiff did not meet his responsive burden of producing 

evidence to establish the existence of a triable issue of material fact as to 

whether Defendant intentionally retaliated against him based on religious 

creed in violation of section 12940. (Code Civ. Proc., § 437c, subd. (p)(2); 

Aguilar, supra, 25 Cal.4th at pp. 850-851.)
29

IV. DISPOSITION

The judgment is affirmed. Defendant is entitled to its costs on appeal. 

(Cal. Rules of Court, rule 8.278(a)(2).)

IRION, J.

WE CONCUR:

AARON, Acting P. J.

GUERRERO, J.