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Filed 10/28/15 Valencia v. United Domestic Workers of America CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

MANUEL VALENCIA,

Plaintiff and Appellant,

v. UNITED DOMESTIC WORKERS OF AMERICA,

Defendant and Respondent. C074086 (Super. Ct. No. 3420110016444CUWTGDS)

Plaintiff Manuel Valencia worked for defendant United Domestic Workers of America, AFSCME Local 3930 , AFL

- CIO (United Domestic) for five months as an assistant legislative director. After five months, plaintiff’s position was eliminated.
Plaintiff filed suit against United Domestic, alleging his termination was motivated by
discriminat ory intent based on a disability and constituted retaliation for his complaints about disability discrimination. United Domestic moved for summary judgment and the trial court granted the motion. Plaintiff appeals, alleging United Domestic’s actions were not for legitimate business reasons and that he was subject to an ongoing pattern of discrimination. We shall affirm the judgment.2 STANDARD OF REVIEW A defendant moving for summary judgment must show that the plaintiff cannot
establish one or more eleme nts of the cause of action or cannot refute an affirmative defense established by the defendant. (Code Civ. Proc., § 437c, subd. (o).) “From commencement to conclusion, the moving party bears the burden of persuasion that there is no genuine issue of mat erial fact and that he is entitled to judgment as a matter of law. There is a genuine 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 acco rdance with the applicable standard of proof.” ( Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 845, fn. omitted ; see Slovensky v. Friedman (2006) 142 Cal.App.4th 1518 , 1522. )
We review de novo the record and the determination of the trial court . ( Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.) First, we identify the issues raised by the pleadings, since it is these allegations to which the motion must respond. Second, we determine whether the moving party’s showing has established facts negating the opponent’s claims and justifying a judgment in the moving party’s favor. When a summary judgment motion prima facie justifies a judgment, the final step is to determine whether the opposition demonstrates the existence of a triable issue of material fact. ( Barclay v. Jesse M. Lange Distributor, Inc. (2005) 129 Cal.App.4th 281, 290.) When an employee alleges employment discrimination, the employee must first establish a prima facie case of discrimination. The employer can then rebut the employee’s claim by offering a legitimate, nondiscriminatory reason for its employment
decision. I f substantial evidence is offered in support, the employer is entitled to summary judgment unless the plaintiff produces substantial responsive evidence that
raises a triable issue o f fact material to the employer’ s showing. ( Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 356

- 357 ( Guz ) ; Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1005.) The evidence must demonstrate the existence of a3

material controversy as to pretext or discriminatory animus on the part of the employer. ( Uni versity 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.) It is not enough to make a bare prima facie showing or to simply deny the credibility of the empl oyer’ s witnesses or to speculate as to discriminatory motive. ( Hersant v. Department of Social Services (1 997) 57 Cal.App.4th 997, 1004

- 1005 ; Compton v. City of Santee (1993) 12 Cal.App.4th 591, 595

- 596 ; Wallis v. J.R. Simplot Co. (1994) 26 F.3d 885, 890

. )
Moreover , the employee will not prevail by simply showing the employer’s decision was wrong or mistaken, since the factual dispute is over whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or compet ent. Instead, the employee must demonstrate such weaknesses , implausibilities , inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its actions that a trier of fact could legitimately find them “ ‘ unworthy o f
credence ’ ” and infer that the employer did not act for the asserted nondiscriminatory

reason ; the employee must show that the employer’s proffered reason is pretextual. ( Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 342

- 343 ( Arteaga ) ; see also McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 [36 L.Ed.2d 668 ] ( McDonnell Douglas ) .) The ultimate issue is simply whether the employer acted with a motive to discriminate. ( Guz , supra , 24 Cal.4th at p. 358.) On summary judgment, the question is

w hether a triable issue of fact exists as to the employer’s motivations. With these considerations in mind, we summarize the pertinent allegations of the complaint and motion for summary judgment a long with relevant portions of the parties’ separate statem ents of disputed and u ndisputed facts and supporting evidence. We then assess the motion in light of the parties’ factual showi ngs and standards of review to
determine whether triable issues of fact remain.4 FACTUAL AND PROCEDUR AL BACKGROUND
The Complaint The complaint sets forth three “causes of action”: FEHA disability discrimination (Cal. Fair Employment & Housing Act; Gov. Code, § 12900 et seq.) , FEHA retaliation, and wrongful termination in violation of public policy.
As to the first two cause s of a ction , plaintiff alleges the following ultimate facts :
t hat he is a person with physical and psychological disabilities, as defined by FEHA , including an anxiety disorder that renders him unable to fly. Though granted an
accommodati on, his supervisor , Jovan Agee, director of political and legislative affairs,
nonetheless chastised him for the disability in person and in a performance evaluation , and later stripped him of his supervisory authority

. United Domestic then demoted him, placed him on adminis trated leave, terminated his lobbyist registration , and ultimately
terminated his employment. With respect to the second cause of action for retaliation, the complaint alleges that plaintiff filed a discrimination charge with the Equal Employment Opportun ity Commission (EEOC) and informed Agee he had a February 1, 2011, meeting with the EEOC to discuss the charge. On February 3 United Domestic terminated his employment. Plaintiff’s complaints of disability harassment and discrimination were motivating fa ctors for the decision to terminate his employment. With respect to the third cause of action for wrongful termination in violation of public policy, the complaint alleges that United Domestic’s decision to terminate plaintiff was motivated by his status as a person with disabilities, and/or his requests for accommodation, and/or his complaints about illegal discrimination. Summary Judgment Motion
United Domestic filed a general denial to the complaint and moved for summary judgment or summary adjudication . The motion, accompanied by United Domestic’s5

separate statement of undisputed facts , supporting declarations , and other exhibits, sets forth the following account of relations between plaintiff and United Domestic : United Domest

ic United Domestic is a labor union affiliated with the American Federation of State, County and Municipal Employees. The union represents employees working in the i n

h ome s upportive s ervices (IHSS) s ystem who provide home care services for eligible
clie nts. United Domestic represents IHSS workers for collective bargaining purposes. United Domestic has a staff of approximately 73 employees who work in various offices throughout the state. Each employee is provided an employee handbook. Under the terms of the
h andbook, p laintiff was employed on an at

- will basis and could be terminated at any time without cause. In addition, the h andbook provides that disabled employees shall be provided reasonable accommodation where the disability involved affects per formance of job functions. United Domestic gave p laintiff a copy of the h andbook, which he
reviewed. United Domestic’s 2010 Reorganization and Plaintiff’s Hiring Prior to hiring p laintiff, in spring 2010 United Domestic began reorganizing its political and legislative department. The reorganization resulted in the creation of the positions of assistant legislative director and assistant political director, to work under the supervision of Agee. United Domestic created five regional political coordinato rs who reported to the assistant political director.
United Domestic hired p laintiff, a graduate of UC Davis School of Law, on August 27, 2010, as assistant legislative director. The job description stated p laintiff’s duties were to “assist in coordinati ng [United Domestic’s] advocacy to California Legislators, state agencies, and statewide elected officials, primarily through lobbying, relationship

- building with decision

- makers, policy analysis, and training member activists.” The job also included the “[ a ] bility to travel and willing [ ness ] to work long6

hours and weekends, as needed.” Plaintiff shared supervision of the regional political coordinators with assistant political director Mathew Kostrinsky. During his employment, United Domestic assigned p laintiff to a variety of work outside of his job description, including political advocacy work supervised by Kostrinsky, assignments normally delegated to regional political coordinators, budgetary analysis normally handled by political and legislative de partment budget and policy analyst Kristina Bas Hamilton, litigation discovery work in pending lawsuits, and media communications. During his employment, p laintiff traveled for work in other counties, including Merced, Modesto, and San Diego.
Plaintiff s tates that shortly after he began working for United Domestic, he told Agee he was unable to travel by airplane because of an anxiety disorder. Plaintiff requested that he not be required to fly. On at least two occasions, Agee granted
p laintiff’s reques t. Plaintiff attended a staff meeting in San Diego by video conference and drove to a second San Diego meeting. Further Restructuring
United Domestic ’s e xecutive d irector , Doug Moore , is the union’s chief executive , with sole authority to make organizat ional changes, including creating or eliminating staff positions and changing job descriptions and titles. Only Moore can hire United Domestic employees, terminate their employment, or approve disciplinary measures. On September 13, 2010, Moore advised s enior staff, including Agee, that after reviewing e

- mails between executive and senior staff it was clear there was confusion over roles and responsibilities. Two weeks later, Moore announced a reorganization in early 2011 caused by “departmental feuds.” Moore stated, “I will . . . announce future staff restructuring in early 2011 that will alleviate this internal bickering.” The e

- mail announcing the reorganization was sent to staff, including p laintiff. On November 12, 2010, Agee sent an e

- mail to Moo re recommending that United Domestic discharge p laintiff and Kostrinsky for inadequate performance. According to7

Agee, the political and legislative department suffered from internal dysfunction because
p laintiff and Kostrinsky could not work together. A gee recommended their two positions be consolidated into one position that would handle all “political/legislative activities at
the local level that I now deal with on the state level.” The position would be called “Assistant Political and Legislative Di rector,” and Agee believed the consolidation would eliminate the dysfunction in the department. However, Moore did not terminate p laintiff and Kostrinsky. Instead, in
December 2010 Moore moved the regional political coordinators from the joint supervisio n of p laintiff and Kostrinsky to supervision by Kostrinsky alone . Moore wanted the coordinators to focus on local political work, as opposed to the legislative
work that p laintiff supervised. On December 14, 2010, Agee notified p laintiff of the change wh en he gave
p laintiff his only written performance evaluation. According to Agee, p laintiff could continue to assign work to the regional political coordinators, but only after obtaining Kostrinsky ’s or Agee’s approval. Plaintiff’s Response
Plaintiff sen t an e

- mail to United Domestic’s human resources director, Manuel Bejarano, on January 2, 2011. According to p laintiff, Agee harassed him and subjected him to a hostile work environment; Agee told p laintiff to overcome his disability, the anxiety disorder that prevented him from flying; and Agee stripped p laintiff of his supervision of the regional political coordinators without cause. Plaintiff provided a medical note supporting his request for a work accommodation “to travel by automobile
when necessary.” He asked United Domestic to help him in dealing with Agee because “under the current hostile work environment, it is physically and emotionally unhealthy for me to deal with [Agee] in the workplace.” United Domestic placed p laintiff on paid a dministrative leave and commenced an investigation. The union interviewed Agee, p laintiff, and other employees. United8

Domestic determined that, although p laintiff’s December 14 performance evaluation did not explicitly discuss any medical condition or f lying , Agee had orally advised p laintiff that the word “obstacles” in the performance evaluation referred to p laintiff’s “fear of flying.” On January 10 United Domestic met with p laintiff. Plaintiff asked for an accommodation by granting him “the ability to drive; the ability to use our video

conference system that was recently set

- up and teleconference.” United Domestic then provided p laintiff with a written memorandum stating it would remove the December 14 evaluation from his personnel file and would not require him to travel by plane for work. In addition, United Domestic directed p laintiff to return to work from administrative leave on January 18, 2011. United Domestic suspended Agee without pay for
10 working days for e

- mailing a political and leg islative department staff member in violation of Moore’s instruction and for mishandling plaintiff’s evaluation.
Prior to p laintiff’s return, Jeremy Wright, a regional political consultant, informed United Domestic he was taking medical leave for an indet erminate period of time. The union temporarily assigned some of Wright’s duties to p laintiff. On January 18 Agee
gave p laintiff various assignments, including drafting policy analyses for three legislative bills, performing budget analysis, and filling i n for Wright in his absence. Agee also told
p laintiff United Domestic was revoking his lobbyist registration because the union would not be sponsoring legislation in 2011. United Domestic needed p laintiff to assist with budget alternatives and to fill in “where we have voids in our region s .” Plaintiff’s pay and title were not changed. On January 19 p laintiff informed United Domestic that Agee had retaliated against him by revoking his lobbyist registration. Moore met with p laintiff and agreed to let hi m retain his lobbyist registration. Moore also informed p laintiff he would be temporarily relocated to Bakersfield, where Wright had been stationed. The reassignment would last9

less than three months and p laintiff would resume his lobbying duties afterwa rd. Plaintiff agreed. However, a few days later, p laintiff notified United Domestic he could not relocate for medical reasons. Plaintiff had a weekly appointment in Sacramento , and making the drive back and forth “would prove too onerous on me, physical ly and mentally.” In addition, p laintiff had special dietary needs that required “a refrigerator and proper cooking facilities.” United Domestic offered to accommodate p laintiff by paying for housing that had a refrigerator and cooking facilities , and ch anging his out

- of

- town work schedule to Monday through Wednesday, permitting him to drive back during work hours on Thursdays in order to make his Friday appointments. The union also requested
p laintiff supply medical documentation to support his request. Plaintiff, on January 30, gave United Domestic a medical note stating his treatment consisted of weekly one

- hour appointments, and p laintiff needed to be in Sacramento four days a week in order to ”engage fully in treatment

. ” The following day,
p laintif f advised Bejarano and Agee that he was taking off February 1 to meet with an EEOC investigator. 2011 Reorganization On February 1 Moore decided to eliminate the positions of assistant legislative director, the regional political consultant for Riverside , and a lead organizer position in Orange County. That day, United Domestic sent an e

- mail to p laintiff stating that based on his medical note, the union believed p laintiff was “unable or unwilling to carry out the temporary assignment in the Bakersfield field office,” and that he would be placed on paid administrative leave while the union considered “this new information.” The e

- mail requested that p laintiff meet with United Domestic on February 4 to discuss his employment situation. On February 3 p laintiff notified United Domestic that he would not meet to discuss his employment. Plaintiff also notified the union that he had filed a charge of10

discrimination with the California Department of Fair Employment and Housing. Bejarano responded that p lai ntiff’s failure to meet would be considered insubordination.
Plaintiff repeated in writing his refusal to meet with United Domestic. In an e

mail, Bejarano informed p laintiff that “ [ b ] ecause you have refused to attend the meeting,
we will communicate to you in this letter what we were going to tell you in person.” Bejarano stated that as part of a staff reorganization and reduction in force necessitated by cuts to the IHSS program, United Domestic was eliminating the assistant legislative director positi on. One purpose of t he proposed meeting would have been to ascertain
p laintiff’s interest in being considered for any other open staff position. In the e

- mail, Bejarano stated United Domestic was “still willing to have this conversation, if you so
desire .” Plaintiff never responded to Bejarano’s e

- mail, believing the e

- mail was his
termination letter. On February 4, 2011, Bejarano flew to Sacramento to meet with p laintiff. Plaintiff
did not appear at the scheduled meeting, nor did he reschedule. Later that day, United Domestic again mailed p laintiff notice of his position’s elimination but also noted, “We will meet with you to ascertain your interest in being considered for any other open staff position.” Plaintiff failed to respond to this second off er. February 4, 2011, was also
p laintiff’s last day of employment. His duties at United Domestic were either eliminated or absorbed by existing positions.
United Domestic’s Further Reorganization By late March 2011 United Domestic’s reorganization had resulted in the elimination of eight positions and the creation of five new positions. The eliminated positions included assistant legislative director, assistant political director, all five regional political coordinators, and one lead organizer positio n. The newly created positions included chief of staff, assistant political and legislative director, assistant field/political campaign director, and two budget /junior policy analysts. Employees in11

eliminated positions were given the opportunity to tran sfer within United Domestic or apply for the newly created positions, which were only posted internally. United Domestic reorganized further in August 2011, and again the organization created new positions . T he chief of staff position was eliminated . Th e following month United Domestic eliminated the assistant political and legislative director position. Again, employees whose positions were eliminated were offered alternative employment in the organization. Plaintiff’s Opposition As an employment disc rimination case evolves, the plaintiff must commonly counter evidence by the employer that the adverse employment action was taken for a legitimate nondiscriminatory reason with evidence that the employer’s stated reasons were not its true reasons, but wer e a pretext for discrimination

. The employer’s motives are also crucial in assessing claims of retaliation and wrongful termination in violation of public policy. The p laintiff must frequently offer evidence that the motive for the
adverse action taken w as not as represented by the defendant employer. The evidence offered by the parties may conflict, and it is not our task in a summary judgment proceeding to resolve the conflict; the plaintiff need only establish a triable issue of
material fact as to th e reason for his or her termination. ( McDonnell Douglas , supra , 411 U.S. 792; Guz , supra , 24 Cal.4th at p. 358 ; Arteaga , supra , 163 Cal.App. 4th at
pp

. 342

- 343.) Here, the trial court found p laintiff failed to offer evidence demonstrating the adverse empl oyment actions were a response by United Domestic to plaintiff’s anxiety disorder, or to his complaints of discrimination. Plaintiff insists he presented numerous triable issues of fact in that regard, as set forth in his statement of disputed and undisputed fa cts and in his briefing on appeal. First, p laintiff contends the record established a link between his disability a nd his supervisory duties being taken away from him. When he was hired, p laintiff argues, his duties included direct supervision of the regional political coordinators. After he12

informed his supervisor of his inability to fly due to general anxiety disor der, United Domestic stripped p laintiff of those supervisory duties. Therefore, p laintiff argues it is reasonable to infer that he was stripped of those duties because his disability interfered with his ability to meet with the regional political coordina tors. Prior to p laintiff’s hiring, the assistant legislative director position had no supervisory authority over the regional political coordinators, who fell under the purview of the assistant political director. In September 2010 Moore approved p lainti ff’s authority over the regional political coordinators . In early December 2010 Moore returned supervision of the regional political coordinators from the assistant legislative director, p laintiff, to the assistant political director, Kostrinsky. In an e

- mail the day of the transition, Moore expressed a desire that the regional political coordinators focus on local political work, under Kostrinsky, as opposed to legislative duties, under p laintiff. Plaintiff cites Agee’s testimony that it was his idea to strip p laintiff of his supervisory duties and that he did so. However, the record reveals Moore alone possessed the authority to remove p laintiff’s supervisory duties over the regional political
coordinators . Moore, as United Domestic’s executive direct or, had the sole authority to make staff changes, including changing job descriptions or job titles. While other senior
staff might make recommendations, Moore had the final say. He was the only United Domestic supervisor with the authority to hire, fire , or approve discipline of employees. Plaintiff presented no evidence that Moore knew of his accommodation requests or medical condition prior to relieving p laintiff of his supervisory duties. Plaintiff also claims his negative evaluation was motivated b y his general anxiety disorder and its impact on his ability to travel. The negative evaluation, p laintiff argues, was part of a larger pattern of adverse actions. A negative evaluation is actionable only if used as a basis to detrimentally alter the ter ms and conditions of the plaintiff’s employment. (

Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1456 .)13

Here, United Domestic rescinded p laintiff’s December 14, 2010, performance review in its entirety on January 11, 2011, following an investig ation into p laintiff’s allegations against Agee. The rescission took place nine days after p laintiff complained about Agee’s evaluation and was accompanied by a formal written memorandum by United Domestic advising him of the removal and telling him he wo uld not be required to travel by plane. Plaintiff argues , “the fact remains that Respondent attempted to give the negative evaluation.” However, p laintiff offers no evidence that the negative evaluation, quickly rescinded, was used as a basis to alter hi s employment status. In addition, according to p laintiff, the record also establishes a retaliatory link between his disability and United Domestic’s termination of his lobbyist registration. He argues he was “temporarily demoted” when United Domestic “i nformed him of its intent to rescind his lobbyist registration.”
Moore decided to terminate p laintiff’s lobbying registration because United Domestic did not intend to sponsor legislation in 2011 , a decision Agee told plaintiff
about on January 18, 2011. After Agee notified p laintiff of the decision, p laintiff stated he believed the move was retaliatory. Moore met with p laintiff on January 21, 2011, and agreed not to terminate his lobbying rights. Whatever p laintiff may have believed, as with Agee’s negative evaluation, the rescinded decision to terminate p laintiff’s lobbying registration does not support p laintiff’s claim of an adverse employment action. Plaintiff argues United Domestic discriminated agains t him by attempting to transfer him to Bakersfield. The transfer, p laintiff contends, was unwanted and far from
the Sacramento location that was conducive to the performance of his lobbying duties. After regional political consultant Wright notified Unit ed Domestic in January 2011 that he was taking an open

- ended medical leave, Agee assigned p laintiff to help cover for Wright. Subsequently, Moore told p laintiff he would be temporarily relocated to Bakersfield, where Wright had been stationed. The reassi gnment would last no more than three months, and at the conclusion, p laintiff would resume his lobbying duties.14

Plaintiff agreed to the assignment. However, a few days later, p laintiff refused the transfer based on his medical condition. In response, Un ited Domestic offered to
accommodate p laintiff by paying for housing with appropriate facilities and scheduling him for Monday through Wednesday to permit him to drive home on Thursdays for his Friday medical appointments in Sacramento . United Domestic pr esented a legitimate reason for transferring p laintiff to Bakersfield and attempted to accommodate his medical needs. Ultimately, p laintiff never transferred to Bakersfield. United Domestic’s attempted transfer of p laintiff to Bakersfield does not suppor t his claim that it used Wright’s leave as a pretext for disability discrimination. Plaintiff contends that United Domestic’s decision to place him on unwanted
administrative leave was in retaliation for his submission of a note from his doctor. He

terms United Domestic’s action as “unwarranted discipline and discriminatory retaliation.” United Domestic put p laintiff on paid administrative leave for four days on February 1, 2011, following his refusal to perform Wright’s duties and relocate despite
his e arlier agreement. After p laintiff notified United Domestic that he needed a work location restriction to Sacramento and had dietary restrictions that restricted his ability to travel, United Domestic agreed to accommodate the requests but asked for suppor ting documentation from a physician. United Domestic believed the note provided did not
relate to p laintiff’s accommodation requests, placed him on paid leave, and requested that he further discuss his accommodation request. Clearly, p laintiff’s paid lea ve was not “retaliation” or an adverse employment action, but a response to his rejection of a work assignment and changing accommodation requests. Finally, p laintiff argues the record contains direct evidence of United Domestic’s discriminatory animus ag ainst him. He cites evidence that his supervisor expected him to resolve his disability and cure his fear of flying. In addition, he argues, United Domestic’s own internal investigation revealed that p laintiff’s disability played an15

improper part in his evaluation and that his supervisor was disciplined for that. But he ignores the progression of events leading up to his termination as a record that establishes a legitimate reason for United Domestic’s action. After United Domestic placed p laintiff
on p aid administrative leave, it sent an e

- mail on February 1, 2011, directing him to meet with Bejarano and Gary Voice , director of finance and administration, on February 4, 2011, to discuss his employment situation. On February 3, 2011, p laintiff told Unit ed Domestic he would not meet to discuss his employment. Bejarano responded that
p laintiff’s failure to meet would be considered insubordination. Plaintiff reasserted his refusal to meet with United Domestic representatives. In response, Bejarano notifi ed p laintiff that “ [ b ] ecause you have refused to attend the meeting, we will communicate to you in this letter what we were going to tell you in person.” As part of the staff reorganization and budget cuts, United Domestic was eliminating the assistant le gislative director position. The e

- mail also stated: “The second purpose of tomorrow’s meeting was to ascertain your interest in being considered for any other open staff position. We are still willing to have this conversation if you so desire. If so, please contact me to make arrangements

.

“ Your last day of work in your current position will be February 4, 2011, though you will be paid for the current pay period through February 15, 2011. You also [will] be paid for your unused vacation balance.”
U nited Domestic also sent p laintiff a letter on February 4, 2011, reiterating the points made in the earlier e

- mail

. Plaintiff failed to respond to either missive.
As p laintiff acknowledges, during United Domestic’s 2011 reorganization, “no employee whose position was eliminated was laid off, where they agreed to transfer or apply for alternative employment with [United Domestic] .” However, p laintiff argues
that he was the “only one who was terminated as a result of the ‘reorganization.’ ” According to p laintiff, his termination resulted from United Domestic’s retaliation for his inability to travel for his job.16

We disagree. Plaintiff refused United Domestic’s repeate d requests to meet before his termination to discuss continuing employment. United Domestic accommodated every other employee impacted by the reorganization; p laintiff’s intransigence led to his ultimate termination. All along the way, United Domestic at tempted to respond to
p laintiff’s complaints about his supervisor’s mistreatment. It rescinded the negative evaluation, restored p laintiff’s lobbying status, and attempted to accommodate his new requirements in the Bakersfield transfer. However, when Uni ted Domestic asked
p laintiff to discuss alternative positions within the organization, p laintiff flatly refused. We find the trial court did not err in granting summary judgment, since p laintiff failed to
establish a triable issue of fact as to whether hi s asserted disability had any connection to his termination.
This failure also dooms p laintiff’s cause of action for retaliation. The trial court correctly found: “

. . . Plaintiff has failed to demonstrate any evidence which would give
rise to a triable issue of fact that [United Domestic’s] actions in restructuring [ its ] operations and changing Plaintiff’s position, title and duties was in retaliation for any protected activity engaged in by Plaintiff.” Plaintiff claims United Domestic retaliated against him after he filed a discrimination charge with the EEOC on January 4, 2011. However, p laintiff presents no evidence that United Domestic was aware of the complaint before his termination. Instead, p lai ntiff states he advised Agee on January 31, 2011, that he had a February 1, 2011, meeting with the EEOC. “It can reasonably be inferred, therefore, that as [United Domestic] was aware of [plaintiff’s] meeting with EEOC shortly before it decided to
elimina te his position, the fact that he was doing so was a substantial factor in eliminating his position.” We are not persuaded by p laintiff’s attempt to link his termination to his pursuit of an EEOC claim. Although p laintiff’s supervisor was aware of an imp ending meeting, there is no evidence that Moore, who made the final decision, knew of the17

meeting. Instead, as we have determined, p laintiff’s termination was based on his refusal to meet with United Domestic to pursue other employment opportunities.
Pla intiff has failed to establish a material factual dispute as to whether discriminatory animus was behind any of U nited Domestic’s actions.
DISPOSITION The judgment is affirmed. United Domestic shall recover costs on appeal.

RAYE , P. J.

We concur:

BLEASE , J.

BUTZ , J.