Filed 2/16/16 Spann v. Aerovironment CA2/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

EILEEN SPANN,

Plaintiff and Appellant,

v.

AEROVIRONMENT INC.,

Defendant and Respondent.

B259952

(Los Angeles County

Super. Ct. No. BC523741)

APPEAL from a judgment of the Superior Court of Los Angeles County, 

Barbara Ann Meiers, Judge. Affirmed.

Law Offices of Kathy F. Bernick and Kathy F. Bernick; Gusdorff Law and 

Janet Gusdorff for Plaintiff and Appellant.

Paul Hastings, James A. Zapp, Cameron W. Fox and Ji Hae Kim for Defendant 

and Respondent.

________________________
2

Plaintiff Eileen Spann appeals from a summary judgment in favor of her former 

employer, defendant Aerovironment, Inc. (Aerovironment). Spann urges that there are 

triable issues of material fact as to whether Aerovironment subjected her to unlawful 

discrimination and retaliation in violation of the Fair Employment and Housing Act 

(FEHA), Government Code section 12920 et seq.

1

 

We affirm. As we now discuss, there is no evidence from which a reasonable trier 

of fact could infer that Spann was not promoted or was terminated because she is female

or because she complained about gender discrimination. Accordingly, summary 

judgment was properly granted for Aerovironment.

FACTUAL AND PROCEDURAL BACKGROUND

I.

Spann’s Request to Be Promoted to 

Manufacturing Engineering Manager

Aerovironment is a defense contractor located in Simi Valley, California. Spann 

was a Senior Manufacturing Engineer in Aerovironment’s Unmanned Aircraft Systems 

(UAS) Division from August 2009 to May 2013, when she was terminated as part of a 

companywide reduction-in-force.

In May 2011, Spann’s immediate supervisor, Steve Myers, left his position as 

Manufacturing Engineering Manager. Immediately thereafter, Vice President Jon Self 

appointed Shawn Webb, a director for another project, as “acting manager” of the 

manufacturing engineering department in addition to his existing responsibilities.2 Webb 

remained the acting Manufacturing Engineering Manager until April 2012.

In October 2011, Spann initiated a meeting with Self to discuss her interest in the 

Manufacturing Engineering Manager position. Self testified that at the time he met with 

Spann, the position was not open; he explained that the company was “going through 

some consolidation of all of our organizations” and he had not yet determined whether he 

 

1 All subsequent statutory references are to the Government Code.

2

Spann testified that in the company hierarchy, a director was senior to a manager.
3

would replace Myers or shift the Manufacturing Engineering Manager responsibilities to 

an existing manager or director. Nonetheless, Self agreed to meet with Spann because “I 

have an open door policy. I take meetings from all employees.”

Spann and Self had different accounts of the October 2011 meeting. Self testified 

that he asked Spann about her qualifications because it was a “question [he] would ask 

anybody asking for a career opportunity or interview for a position.” At the meeting’s 

conclusion, he told Spann that “if I decide to post the position and there is an opening, 

[you’re] welcome to apply.”

Spann agreed Self asked about her qualifications, but she perceived Self’s tone to 

be demeaning. According to her declaration, “Self first asked me what made me 

qualified for this position. There was nothing wrong with the content of the question but 

Self’s tone of voice, body language and facial expression indicated to me that he did not 

believe I was qualified.” Spann said Self told her the position was not then open, but that 

she could apply for it “when it became available.” (Italics added.)

Ultimately, Self decided not to hire a new Manufacturing Engineering Manager, 

instead transferring the manufacturing engineering management responsibilities to a 

newly hired Director of Quality. Spann asserts that had she known of the opening for the 

Director of Quality position, she would have applied for it.

II.

Spann’s Complaints of Gender Discrimination to 

Human Resources Manager Dawnette Sitler

On October 17, 2011, days after her meeting with Self, Spann met with Human 

Resources Manager Dawnette (Beery) Sitler. Spann told Sitler that Self thought her 

unqualified for the Manufacturing Engineering Manager position, an attitude that Spann 

attributed to company-wide anti-female bias. At that initial meeting and subsequently, 

Spann complained to Sitler that male engineers were publicly recognized for their work, 

but female engineers were not; female engineers were assigned more work than male 
4

engineers; and female engineers were treated rudely by male engineers, who knew they 

“did not have to cooperate with women.”3

Sitler interviewed the individuals who were involved in or witness to the incidents 

Spann complained about, and she reviewed the documents Spann provided her. Sitler 

said she spent at least 10 hours meeting with or communicating with Spann and 

investigating her complaints. Based on that investigation, Sitler did not find any 

evidence to support Spann’s claims of gender bias.

In December 2011, acting Manufacturing Engineering Manager Webb announced 

that he “would like to roll out a rotational program for the Manufacturing Engineering 

group to give all those that have expressed interest in [a] leadership role a chance. The 

 

3

Spann provided the following examples, among others: “I asked Perez, [a male 

manufacturing engineer], a question in his cubicle. He kept his back to me, staying 

seated and facing his computer monitor. On another occasion I asked Perez for help and 

he refused. I asked [Production Supervisor Todd] Marshall a question on the floor. He 

walked away. His supervisor, [Peter] Crescenti, was there and did nothing. On another 

occasion Marshall looked like he was holding a door open for me but he closed it right as 

I got there. On another occasion I asked Marshall a question and he gave me incorrect 

information . . . . On another occasion I asked Marshall a question and he told me that I 

should know the answer. He did not tell me if he knew. I told him I did not know. He 

then sent me an egregious e-mail accusing me of having others do my work.”

Spann continued: “I had been experiencing discrimination since I started at 

[Aerovironment]. . . . I told [Dawnette] Sitler that I had sent Chris Fisher, [Production 

Engineering] Manager for Wasp IV, 3 e-mails telling him and made one phone call to tell 

him I was finished with [a presentation] he asked me to do, that he did not get back to me 

and instead pulled me off the project. This was discrimination. Instead of getting Fisher 

to change his mind [Sitler] told me that I should have gone to his building when he did 

not return my e-mails or answer my phone call. Fisher got away with that. [Citation.] 

When I complained about [a coworker] yelling at me . . . , which was discrimination, 

Sitler did not ask him to apologize. [Citation.] When [Bud] Jenkins would not give me 

public recognition for my Quality Metrics work, more discrimination, Sitler did not put 

up a fight, made no real attempt to change his mind. Sitler allowed my not getting credit 

in my second [performance evaluation] for my work with PUMA Lean project. 

[Citation.] . . . . Sitler did nothing to change the discriminatory environment at 

[Aerovironment] or the acting out of the obvious animus towards women by male 

engineers and managers.”
5

goal will be to rotate to a new lead every 3 (or so) months, providing a chance to those 

that have or will express interest.” Spann was selected to be the manufacturing 

engineering lead for the period January through March 2012.

III.

Spann’s EEOC and DFEH Complaints;

Aerovironment’s Investigation of Spann’s Claims by

Outside Investigator Sally Phillips

In May or June 2012, Spann filed a discrimination charge with the Equal 

Employment Opportunity Commission (EEOC) and the California Department of Fair 

Employment and Housing (DFEH). Thereafter, Aerovironment hired outside investigator 

Sally Phillips to investigate Spann’s claims.

Phillips reviewed documents and interviewed Spann, her current and former 

supervisors, Dawnette Sitler, and two female manufacturing engineers, among others. 

Phillips then prepared a report, dated July 2012, detailing her findings. The report stated 

as follows.

Spann’s former supervisor, Steve Myers, told Phillips that he had become 

frustrated with Spann because he felt she was not doing her job. He said that just prior to 

leaving the manufacturing engineering department, he gave Spann a “mini-review” that 

he characterized as a final warning that she needed to improve her performance. He 

described Spann as a “non-performer,” noting that she did not do the work she was 

assigned. He said Spann was a huge “demotivator” among her peers and he did not 

believe Aerovironment should employ Spann in any capacity. Myers also said that while 

at Aerovironment, he had hired seven women and eight men, and he had advanced one 

man and one woman to higher pay grades.

Another of Spann’s former supervisors, Shawn Webb, told Phillips that five 

members of his team had reported that while acting as manufacturing engineering lead, 

Spann was detached, aloof, and did not do much work herself. He believed Spann was 

seeking company-wide recognition for simply doing her job. He said the other women in 

Spann’s group did excellent work.
6

Spann’s current supervisor, Bud Jenkins, told Phillips that when he first came to 

work for Aerovironment, about eight weeks before the interview, he met one-on-one with 

each member of his group. Several group members, both men and women, told him 

Spann was difficult to work with, was condescending, and did not listen when others 

spoke. Jenkins did not feel he could pass judgment on Spann because he had worked 

with her for only a brief period.

Production Supervisor Todd Marshall told Phillips that Spann was very difficult to 

work with. He described her as combative and said she tended not to complete the work 

assigned to her. Instead, she “simply forces her workload on everyone else.” He said he 

had no problem working with women, and he described Spann’s female peers, Ashley 

Harrier and Laurie Morrow, as bright, helpful, proactive, organized, and easy to work 

with.

Manufacturing Engineer Ashley Harrier told Phillips that Spann shirked her 

responsibilities and pushed them on to others. She said Spann often let necessary 

procedures sit for weeks and then would claim that someone else should be responsible 

for them. Harrier did not believe that Spann’s workload or her own had increased or that 

women were treated differently than men at Aerovironment. She believed Spann was 

treated differently because she was difficult to work with, not because she was female.

Manufacturing Engineer Laurie Morrow said Spann was bizarre and difficult to 

work with. Morrow did not believe she (Morrow) was treated any differently because 

she was a woman. Morrow thought she generally was well regarded, noting that she had 

been offered a supervisory role but had turned it down because she enjoyed the work she 

was doing.

Technical Writer Lisa Nason said she had not had any problems with Spann. 

Nason said that although the aerospace industry was male-dominated, she had not 

experienced any sexual bias at Aerovironment. She felt that she was treated with respect 

at Aerovironment and had received positive feedback from her male counterparts.

The Phillips report concluded that there “does not appear to be any factual basis 

for Spann’s claim of sexual bias.” It noted that “Spann’s female peers all denied seeing 
7

or experiencing sexual bias. They believe they are treated fairly and no differently than 

the males. They also believe that to the extent Spann feels she is treated differently, it is 

due to her failure to perform and her attitude, rather than her sex.” Further, “all of 

Spann’s managers (Myers, Webb and now Jenkins) have expressed frustration with 

Spann’s communication style and work ethic. According to [Spann’s supervisors], 

Spann’s peers and customers have also expressed the same frustrations. [Coworkers] all 

described Spann similarly – as being difficult to work with and not getting the work 

done.” The report noted, however, that Spann had not been made fully aware of these 

issues, in part because of the changes in management: “With each new manager, Spann 

appears to be given a ‘clean slate’. . . . [As a result, Spann] has developed her own ‘false 

impression’ that she is an excellent employee and qualified for management. Spann’s 

apparent lack of awareness of her own failings may also have further fueled her belief 

that if she is not qualified as a manager, it is through no fault of her own, but rather the 

fault of management in not spreading the word about her work.”

On about July 20, 2012, Phillips met with Spann and Sitler to report that she had 

not found any evidence of gender bias. Spann disagreed with Phillips’ findings and 

continued to assert that she had been the victim of gender bias.

IV.

Spann’s 2013 Termination

In 2012, several of Aerovironment’s major projects ended, and the company 

experienced a significant reduction in demand for its UAS products. In September 2012, 

the managers of the engineering and manufacturing groups were asked to rank their 

employees according to a fixed set of criteria, and the following month, about 36 

employees, including 22 from the UAS division, were laid off. No manufacturing 

engineers were laid off at that time.

In 2013, the company experienced a further reduction in demand for its UAS 

products, and it again asked the manufacturing and engineering managers to rank their 

employees. Jenkins evaluated the five manufacturing engineers in his group—Spann, 

Sergio Perez, David Naillon, Dale Curtis, and Laurie Morrow—based on input “from 
8

peers, other managers, . . . [his] review of daily activity logs, and . . . [his] own 

observations.” Laurie Morrow, the other female engineer in the group, received the 

highest overall score of 3.3. David Naillon, Sergio Perez, and Dale Curtis received 

scores of 3.2, 3.2, and 3.1, respectively. Spann received a score of 2.0, the lowest score 

of the group.

Based on the rankings, Jenkins recommended Spann for layoff. His 

recommendation was reviewed and approved by Self, the UAS “leadership team,” and 

Senior Vice President of Administration Cathleen Cline. Spann was laid off in May 

2013, along with 56 other employees, including 30 from the UAS division.

In September 2013, Aerovironment engaged in another round of layoffs, 

terminating 46 employees, all from the UAS division.

V.

The Present Action

Spann filed a complaint with the DFEH in September 2013, and filed the present 

action against Aerovironment on October 8, 2013.4The complaint asserted that there 

“was a pattern and practice of gender discrimination at [Aerovironment] and in particular 

in the Manufacturing Engineering Department where women engineers were treated 

differently than male engineers.” The complaint further asserted that female engineers 

faced “bias and hostility from male engineers who would not cooperate with them, 

creating a hostile work environment. Management was aware of this but would do 

nothing to correct this.”

The complaint alleged that as part of an alleged pattern and practice of gender 

discrimination, Aerovironment eliminated the position of Manufacturing Engineering 

Manager “to avoid giving it to [Spann] or to any other woman.” When Spann 

complained of pervasive gender bias, Aerovironment retaliated by giving her a poor 

 

4

In July 2013, Spann received a right to sue letter from the EEOC in connection 

with her first discrimination complaint. In September 2013, she received a right to sue 

letter from the DFEH in connection with her second discrimination complaint.
9

performance review and subsequently terminating her. The layoff was retaliatory in that 

Spann “was more qualified than other engineers who were not laid off.”

Spann alleged that this alleged discriminatory and retaliatory conduct gave rise to 

four causes of action: (1) gender discrimination; (2) retaliation; (3) wrongful termination; 

and (4) failure to prevent discrimination and retaliation.

VI.

Aerovironment’s Motion for Summary Judgment

Aerovironment moved for summary judgment or, in the alternative, summary 

adjudication of issues. Aerovironment presented declarations and documentary evidence 

of a nondiscriminatory reason for failing to promote Spann to Manufacturing Engineering 

Manager—namely, that the company decided not to replace Myers but, instead, to 

transfer his responsibilities to a newly-hired Director of Quality. Spann never applied for 

the Director of Quality position, and thus she could not establish that Aerovironment 

failed to promote her to that position for discriminatory reasons. With regard to Spann’s 

retaliation claim, Aerovironment presented evidence that it laid off Spann because of a 

reduced demand for its products and because Spann was the lowest ranked manufacturing 

engineer in her group.

Spann opposed the motion. In support, she submitted her own declaration 

describing the discrimination to which she believed she had been subject, as well as the 

declarations of three female former colleagues who said they found Spann to be 

“friendly, nice and warm,” and had not found her to act superior to others.

The court granted Aerovironment’s motion for summary judgment on September 

15, 2014, finding that “there is no material issue of fact presented by competent evidence 

that would impede defendants’ right to a judgment in its favor as a matter of law.”

DISCUSSION

Spann contends that the trial court erred in summarily adjudicating her FEHA 

claims against Aerovironment—for (1) gender discrimination, (2) retaliation, and 
10

(3) failure to prevent discrimination and retaliation. (§ 12940, subds. (a), (h), (k).)

5

 We 

address these issues below.

I.

The McDonnell Douglas Burden-Shifting Framework

“In cases alleging employment discrimination, we analyze the trial court’s 

decision on a motion for summary judgment using a three-step process that is based on 

the burden-shifting test that was established by the United States Supreme Court for trials 

of employment discrimination claims in McDonnell Douglas Corp. v. Green (1973) 411 

U.S. 792. (See, e.g., Guz [v. Bechtel National, Inc. (2000)] 24 Cal.4th [317,] 354-355 

[(Guz)]; Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 111 (Reeves).) . . . [¶] 

. . . [U]nder the first step of the McDonnell Douglas framework, the plaintiff may raise a 

presumption of discrimination by presenting a ‘prima facie case,’ the components of 

which vary depending upon the nature of the claim . . . . (Reeves, supra, 121 Cal.App.4th 

at pp. 111-112.) ‘A satisfactory showing to this effect gives rise to a presumption of 

discrimination which, if unanswered by the employer, is mandatory—it requires 

judgment for the plaintiff.’ (Id. at p. 112, citing Guz, supra, at pp. 355-356.) However, 

under the second step of the test, ‘the employer may dispel the presumption merely by 

articulating a legitimate, nondiscriminatory reason for the challenged action. [Citation.] 

At that point the presumption disappears.’ (Reeves, at p. 112.) Under the third step of 

the test, the ‘plaintiff must . . . have the opportunity to attack the employer’s proffered 

reasons as pretext for discrimination, or to offer any other evidence of discriminatory 

motive.’ (Guz, supra, at p. 356.)

“The McDonnell-Douglas framework is modified in the summary judgment 

context. In a summary judgment motion in ‘an employment discrimination case, the 

 

5

The trial court also summarily adjudicated Spann’s cause of action for wrongful 

termination. Spann does not assert on appeal that summary adjudication of the wrongful 

termination claim was erroneous, and thus any such contention is forfeited. (E.g., Tellez 

v. Rich Voss Trucking, Inc. (2015) 240 Cal.App.4th 1052, 1066 [“On appeal we need 

address only the points adequately raised by plaintiff in [the] opening brief on appeal.”].) 
11

employer, as the moving party, has the initial burden to present admissible evidence 

showing either that one or more elements of plaintiff’s prima facie case is lacking or that 

the adverse employment action was based upon legitimate, nondiscriminatory factors.’ 

(Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 1003, citing Guz, supra, 

24 Cal.4th at p. 357.) . . .

“ ‘[I]f nondiscriminatory, [the employer’s] true reasons need not necessarily have 

been wise or correct. [Citations.] While the objective soundness of an employer’s 

proffered reasons supports their credibility . . . , the ultimate issue is simply whether the 

employer acted with a motive to discriminate illegally. Thus, “legitimate” reasons 

[citation] in this context are reasons that are facially unrelated to prohibited bias, and 

which, if true, would thus preclude a finding of discrimination.’ (Guz, supra, 24 Cal.4th 

at p. 358, original italics.) Examples of legitimate reasons are a failure to meet 

performance standards (Trop v. Sony Pictures Entertainment Inc. (2005) 129 Cal.App.4th 

1133, 1149) or a loss of confidence in an employee (Arteaga v. Brink’s, Inc. (2008) 

163 Cal.App.4th 327, 352.) . . . .

“In Guz, the Supreme Court emphasized that ‘the great weight of federal and 

California authority holds that an employer is entitled to summary judgment if, 

considering the employer’s innocent explanation for its actions, the evidence as a whole 

is insufficient to permit a rational inference that the employer’s actual motive was 

discriminatory.’ (Guz, supra, 24 Cal.4th at p. 361, fn. omitted.) It is not sufficient for an 

employee to make a bare prima facie showing or to simply deny the credibility of the 

employer’s witnesses or to speculate as to discriminatory motive. (Hersant v. 

Department of Social Services (1997) 57 Cal.App.4th 997, 1004 (Hersant); Wallis v. J.R. 

Simplot Co. (1994) 26 F.3d 885, 890; Compton v. City of Santee (1993) 12 Cal.App.4th 

591, 595-596.) Rather it is incumbent upon the employee to produce ‘substantial 

responsive evidence’ demonstrating the existence of a material triable controversy as to 

pretext or discriminatory animus on the part of the employer. (University of Southern 

California v. Superior Court (1990) 222 Cal.App.3d 1028, 1039; Martin [v. Lockheed
12

Missiles & Space Co. (1994)] 29 Cal.App.4th [1718,] 1735.)” (Serri v. Santa Clara 

University (2014) 226 Cal.App.4th 830, 860-862.)

“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 except that to which objections have been made and sustained. [Citation.] Under 

California’s traditional rules, we determine with respect to each cause of action whether 

the defendant seeking summary judgment has conclusively negated a necessary element 

of the plaintiff’s case, or has demonstrated that under no hypothesis is there a material 

issue of fact that requires the process of trial, such that the defendant is entitled to 

judgment as a matter of law.” (Guz, supra, 24 Cal.4th at p. 334.)

II.

Discrimination and Failure to Prevent Discrimination

The complaint alleges that Aerovironment violated section 12940, subdivision (a), 

by failing to promote Spann because of her gender. On appeal, Spann contends that the 

trial court erred in concluding that there were no triable issues of material fact as to why 

she was denied a promotion—and specifically, whether she was not promoted to 

Manufacturing Engineering Manager because she is a woman. For the reasons that 

follow, the trial court was correct. 

A. Governing Legal Principles and Aerovironment’s Stated Reasons for Not 

Promoting Spann

Section 12940, subdivision (a), provides that it is an unlawful employment 

practice for an employer, because of a person’s sex or gender, “to refuse to hire or 

employ the person or to refuse to select the person for a training program leading to 

employment, or to bar or to discharge the person from employment or from a training 

program leading to employment, or to discriminate against the person in compensation or 

in terms, conditions, or privileges of employment.”

The responsibility of the moving defendant in a failure to promote case is to 

“ ‘clearly set forth, through the introduction of admissible evidence, the reason for the 

plaintiff’s rejection.’ ” (Addy v. Bliss & Glennon (1996) 44 Cal.App.4th 205, 215-216,
13

italics added.) Here, Aerovironment did so: Through the declaration of Jon Self, it 

presented evidence that it decided not to replace outgoing Manufacturing Engineering 

Manager Steve Myers, but instead to consolidate two positions into one by transferring 

the Manufacturing Engineering Manager responsibilities to the Director of Quality, who 

also maintained his existing responsibilities. It is undisputed that Spann never applied for 

the Director of Quality position, and that the Manufacturing Engineering Manager 

position was never posted or filled.

In an appropriate case, a plaintiff’s assertions of discrimination may be shown to 

be without merit “where the job [plaintiff] sought was withdrawn and never filled.” 

(Guz, supra, 24 Cal.4th at p. 354; see also Horne v. District Council 16 Internat. Union of 

Painters & Allied Trades (2015) 234 Cal.App.4th 524, 533 [quoting Guz]; Chavez v. 

Tempe Union High School Dist. No. 213 (9th Cir. 1977) 565 F.2d 1087, 1091 

[“Necessarily, the failure to prove the existence of a job opening is a fatal defect in a 

prima facie case of overt discrimination.”].) Accordingly, Aerovironment successfully 

met its burden to establish that it did not promote Spann for legitimate, nondiscriminatory 

reasons.

B. Spann’s Evidence of Pretext/Discriminatory Animus

Spann concedes that the Manufacturing Engineering Manager position was never 

formally posted and a new Manufacturing Engineering Manager was not hired, but she 

suggests that Aerovironment’s failure to post the position was itself evidence of 

discrimination. Spann urges: “Instead of officially opening the position, 

[Aerovironment] was able to avoid promoting a female (Spann) to manage the (mostlymale) manufacturing engineers by assigning those duties to another position – one for 

which defendants assumed Spann was not qualified and would not apply – the Director of 

Quality.”

In support of her contention that Aerovironment never formally opened the 

Manufacturing Engineering Manager position to avoid promoting a woman, Spann cites 

her own testimony that Jon Self told her that she could apply for the Manufacturing 

Engineering Manager position “when it became available.” From this testimony, she 
14

contends, “[a] jury could reasonably infer that Self’s reference to ‘when’ the job was 

posted, as opposed to ‘if,’ meant that at the time of the interview, Self (and 

[Aerovironment]) intended the Manager position to be a standalone position, and 

intended to fill it. . . . A jury could also reasonably infer that had Spann not spoken to 

HR about her goals of promoting within the company, and had she not simultaneously 

expressed her concerns of company-wide gender bias, Self would have opened and filled 

the position. The fact that defendants eliminated the position, coupled with the timing of 

Spann’s complaint to HR, raise[d] the logical inference that [Aerovironment] eliminated 

the position to avoid promoting (or avoid explaining its failure to promote) Spann.”

We do not agree with Spann that Self’s purported use of the word “when” in this 

context gives rise to a reasonable inference that Aerovironment eliminated a management 

position for the express purpose of keeping women out of management. As an initial 

matter, we note that when Spann first approached Self to express interest in the 

Manufacturing Engineering Manager position in October 2011, the position had been 

vacant for more than five months. There is no evidence that Aerovironment took any 

steps to fill the position at any point during that five month period. The decision not to 

replace Myers, therefore, was not an abrupt change of position following Spann’s 

meeting with Self, but instead was a maintenance of the status quo. 

Spann urges that a reasonable jury could infer anti-female bias from Self’s tone 

during their October 2011 meeting, which Spann described as “demeaning.” But Spann’s 

perception of Self’s tone during a single meeting cannot, by itself, support an inference of 

intentional discrimination. (See McRae v. Department of Corrections and Rehabilitation 

(2006) 142 Cal.App.4th 377, 396 [“[plaintiff’s] personal beliefs or concerns are not 

evidence.”].) Nor could a jury reasonably infer intentional discrimination from the fact 

that “nobody at [Aerovironment] informed her that the Director of Quality position was 

open, and nobody formally or ‘informally’ considered her for that position.” The 

evidence is undisputed that Aerovironment publicly posted the Director of Quality 

position “so employees could see that it was available” between May 2011 and March 
15

2012. Although Spann was not personally advised of the posting, neither was she 

prevented from accessing or reviewing it.6

For all of these reasons, none of Spann’s proffered evidence raises a triable issue 

of material fact that Spann was not promoted because she is a woman. Accordingly, the 

trial court properly granted summary adjudication of Spann’s causes of action for 

discrimination and failure to prevent discrimination.

III.

Retaliation and Failure to Prevent Retaliation

A. Governing Legal Principles

Section 12940, subdivision (h) provides, in relevant part, that it is an unlawful 

employment practice for an employer “to discharge, expel, or otherwise discriminate 

against any person because the person has opposed any practices forbidden under this 

part or because the person has filed a complaint, testified, or assisted in any proceeding 

under this part.”

To establish a prima facie case of retaliation under FEHA, “ ‘a plaintiff 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.” ’ ” (Nealy v. City of Santa Monica (2015) 

234 Cal.App.4th 359, 380; accord, Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 

1028, 1042 (Yanowitz).) Once an employee establishes a prima facie case, the employer 

 

6

Spann asserts that there was pervasive gender bias at Aerovironment, but as we 

have said, she does not persuasively link such perceived bias to her failure-to-promote 

claim. We note, moreover, that not a single one of Spann’s former co-workers testified 

that he or she had witnessed discriminatory treatment of Spann, and none of Spann’s 

female coworkers testified that they themselves had experienced gender-based 

discrimination. Even the three declarations submitted by Spann in opposition to 

summary judgment did not provide any evidence of gender-based discrimination, stating 

only that the declarants’ interactions with Spann had been positive and that they found 

her to be “friendly,” “warm,” “efficient,” and “helpful.” And, the undisputed evidence is 

that during the years relevant to this litigation, women held high-level positions at 

Aerovironment, including as Vice Presidents of Administration and Finance.
16

is required to offer a legitimate, nonretaliatory reason for the adverse employment action. 

If the employer produces a legitimate reason for the adverse employment action, the 

presumption of retaliation “ ‘ “ ‘drops out of the picture,’ ” ’ ” and the burden shifts back 

to the employee to prove intentional retaliation. (Yanowitz, supra, at p. 1042.)

It is undisputed that Spann was terminated after she complained of gender bias to 

Human Resources Manager Sitler and filed complaints with the EEOC and DFEH. 

Aerovironment asserted, however, that it had “legitimate, nonretaliatory reason[s]” for 

Spann’s termination—that the company was experiencing a reduced demand for its

products, requiring a reduction in its workforce, and that Spann received the lowest 

numerical ranking of the five manufacturing engineers in her department.

Spann concedes that Aerovironment laid off a large number of employees, 

including UAS employees, as part of reductions in force in 2012 and 2013. She urges, 

however, that there was evidence that Aerovironment “used its ranking-system as a 

pretext for covering up its true motivation—getting rid of Spann because she reported the 

company to the EEOC.”

It is well established that a reduction in force can be a legitimate reason to 

discharge an employee. (E.g., Villanueva v. City Of Colton (2008) 160 Cal.App.4th 

1188, 1195 [“[T]he law is settled that an employer’s depressed economic condition ‘can 

be good cause for discharging [an] employee.’ [Citation.]”]; see also Guz, supra, 

24 Cal.4th at p. 358 [noting “employer’s freedom to consolidate or reduce its work force, 

and to eliminate positions in the process”].) However, “downsizing alone is not 

necessarily a sufficient explanation, under the FEHA, for the consequent dismissal of [a 

protected] worker. An employer’s freedom to consolidate or reduce its work force, and 

to eliminate positions in the process, does not mean it may ‘use the occasion as a 

convenient opportunity to get rid of its [protected] workers.’ [Citations.] Invocation of a 

right to downsize does not resolve whether the employer had a discriminatory motive for 

cutting back its work force, or engaged in intentional discrimination when deciding 

which individual workers to retain and release. Where these are issues, the employer’s 

explanation must address them. [Citation.]” (Guz, supra, 24 Cal.4th at p. 358.)
17

On the other hand, “if nondiscriminatory, [the employer’s] true reasons need not 

necessarily have been wise or correct. [Citation.] While the objective soundness of an 

employer’s proffered reasons supports their credibility . . . , the ultimate issue is simply 

whether the employer acted with a motive to discriminate illegally. Thus, ‘legitimate’ 

reasons ([Tex. Dep’t of Cmty. Affairs v.] Burdine [(1981)] 450 U.S. [248,] 254 [101 S.Ct. 

at p. 1094]) in this context are reasons that are facially unrelated to prohibited bias, and 

which, if true, would thus preclude a finding of discrimination. [Citations.]” (Guz, 

supra, 24 Cal.4th at p. 358.)

With these principles in mind, we examine Aerovironment’s evidence that it had a 

legitimate, nondiscriminatory reason for terminating Spann, and Spann’s evidence that 

Aerovironment’s true motivation for terminating her was retaliatory animus.

B. Aerovironment’s Asserted Reasons for Terminating Spann

Spann received a rating of 2.1 (out of 4) in “skills,” 2.2 (out of 5) in 

“performance,” and 1.6 (out of 3) in “attributes” in her pre-termination evaluation. In 

relevant part, the evaluation explained Spann’s ratings as follows:

“Skills Comments: Eileen has scored low (2 or 1) in almost all areas of this 

category. She rarely communicates with others in the group and needed to be told to 

spend time on the manufacturing floor. Her lack of leadership is exhibited through her 

lack of communication with her internal customers. This also shows a lack of team 

support and almost no attention given to mentoring others.”

“Performance Comments: Eileen’s responsiveness has been practically nonexistent. On many occasions, when issues arose on the manufacturing floor, she was not 

involved until someone located her and asked her to get involved and brought [her] ‘up to 

speed.’ Again, team work is lacking as a result of her non-attendance to floor issues as 

they arise. Timeliness suffers due to a lack of attention to current floor issues and as a 

result, efficiency is reduced.”

“Attributes Comments: Eileen has scored low in each area of this category. She

does not act like a self-starter; she needs to be ‘pushed’ to ‘get things done.’ This shows 

a lack of customer focus, both internal and external. She does not act like she ‘owns’ her 
18

areas of responsibility and has shown little in the way of accountability. She does not 

seem to be personally invested in the business of [Aerovironment] and acts in a 

‘detached’ and ‘aloof’ manner. As the senior engineer of the group, she should 

exemplify these attributes and work to create an environment where others in and outside 

of the group will want to come to her for guidance and support.” 

“[Summary]: Eileen only supports Tier II (all other work reassigned to others and 

sufficiently staffed.) Tier II program faces potential budget cuts that will eliminate the 

need for her position. This combined with her overall score of 2.0 and the reduction in a 

need for her lean manufacturing/analytical expertise with workload going forward leads

to a recommendation that Eileen be RIF’d.”7

In support of its motion for summary judgment, Aerovironment submitted portions 

of the deposition testimony of Spann’s supervisor, Bud Jenkins. Jenkins said that 

Spann’s pre-termination ranking was “based on the information I had at the time[,] which 

included input from peers, other managers, as well as my review of daily activity logs, 

and also my own observations throughout . . . a little over a year.” Jenkins said Spann 

was aloof with other employees and did not adequately attend to issues that arose on the 

manufacturing floor. He explained: “[I]n general trying to find resolution to issues as 

quickly as possible would require that you’re [on the manufacturing floor] pretty much 

all the time throughout the day. And that – that was not the case. . . . [Spann] had to be 

sought out. She had to be notified more times than not that there was an issue. And 

that’s not really acceptable in terms of how a senior engineer would react and respond 

within that manufacturing environment.”

Jenkins also noted that Spann regularly missed morning meetings: “Eileen Spann 

was supposed to be on the floor first thing in the morning for the morning walk-throughs. 

And then periodically on a regular basis throughout the day, understanding what the 

issues were within her area of responsibility. Had she been in attendance at all of those 

 

7

“RIF” is an acronym for “reduction in force.” A person laid off during a reduction 

in force is sometimes said to have been “RIF’d.”
19

morning meetings she would have known what the issues were that were being 

discussed. . . . [However, she missed] the majority of them.”

Jenkins also noted that he received frequent complaints from Spann’s coworkers 

that she was difficult to work with or was not completing her work: “[There] seemed to 

be an overall unwillingness to – on a regular basis over time to be a part of the team and 

to try to work with others effectively and efficiently. [¶] I had received numerous 

complaints, verbal complaints, as well as written, through email, complaints, on that 

topic. It was not uncommon for people to show up at my door, walk in, close the door, 

and say can I have a word with you[?] . . . And then they would begin to tell me about 

something that happened or some situation there where it was . . . uncomfortable for them 

to perform their duties as a result of interaction or noninteraction with [Spann].” Jenkins 

said that many members of Spann’s group had complained about her, including several 

female coworkers. For example, Jenkins recalled Ashley Harrier “coming into my office, 

and saying I keep asking Eileen for this information, and she’s nonresponsive, and it’s 

putting me in a very uncomfortable position.” Similarly, Laurie Morrow told Jenkins that 

Spann’s work “is not accurate and complete.” Jenkins added, “And there had been errors 

noted and Laurie would have to go back and make the corrections and do whatever 

updates were required to get back on track.”

Jenkins also described complaints from employees outside Spann’s group: “One 

issue was where is she. She’s not here. And another issue was she’s not pulling her 

weight, staying on top of the . . . workload.” Because Spann was not completing her

work, “Laurie [Morrow] was having to do a lot of the work that [Spann] was supposed to 

be doing. Which was taking Laurie away from doing the work that she needed to do. 

And it was causing her to work a significant amount of hours beyond what would 

normally be expected.” 

Aerovironment also submitted portions of the deposition transcript of Laurie 

Morrow, who testified that Spann was not easy to work with because she was not a “team 

player”: “When we had documents we needed to create, we were supposed to work 

together to create them, and she left it to me even when I asked for her help.” Morrow 
20

said Spann did not communicate when she was going to be absent from work, did not 

interact with people in the field, and did not share the burden of what was happening on 

the production floor. Morrow explained that a manufacturing engineer typically spends 

the majority of his or her time on the manufacturing floor to “learn the important details 

of how things go together.” Morrow complained to Bud Jenkins about Spann because in 

Morrow’s judgment, Spann “wasn’t performing her job.” 

C. Spann’s Evidence of Pretext/Retaliatory Animus

1. Inconsistent performance evaluations

Spann contends that her low pre-termination ranking was pretextual because it was 

inconsistent with earlier evaluations of her work. She notes that in 2011, “taking 

initiative” was identified as one of her strengths, while the pre-termination evaluation 

gave her low marks “for not being a self-starter.” Similarly, Spann’s integrity was noted 

as a strength in her 2011 evaluation, but she was rated a “2” (meets some expectations) in 

this category immediately prior to termination. 

We do not agree with Spann that comparing the 2011 and 2013 evaluations gives 

rise to a reasonable inference that the 2013 evaluation was retaliatory. As an initial 

matter, both evaluations (which were finalized in April 2012 and May 2013, respectively)

followed Spann’s internal complaint of gender discrimination. Logically, therefore, if

Aerovironment had been motivated by retaliatory animus, such animus would have 

colored the 2011 evaluation, as well as the evaluation that immediately preceded Spann’s 

termination. 

Moreover, the annual performance reviews (referred to as “Personal Development 

Process” or “PDP”) were structured very differently than the rankings prepared in 

anticipation of layoffs. The PDPs were filled out initially by the employees, and only 

later by supervisors; they sought information such as “[w]hat skills does the employee 

currently possess,” “[w]hat skills does the employee need to work on in the future,” 

“[w]hat individual attributes are strengths for the employee,” “[w]hat [i]ndividual 

[a]ttributes does the employee need to improve,” “[w]hat experience and skills has the 

employee gained during the past year,” “[w]hat are the employee’s most valuable 
21

contributions,” “[w]hat is the employee’s growth direction,” and “[w]hat additional tools, 

skills, education or experience does the employee need to help accomplish this growth 

path?” In contrast, the pre-termination rankings were filled out by supervisors only, and 

asked for numerical rankings in categories such as “diagnostic,” “communication,” 

“technical workmanship,” “decision making,” “leadership,” “conflict resolution,” “floor 

support,” “team support,” “timely execution of duties,” “responsiveness,” “innovation,” 

and “teamwork.” 

Finally, the 2011 and 2013 evaluations were largely consistent. The 2013 

evaluation rated Spann “2” (“fair”) in leadership; the 2011 performance review said, 

among other things, that Spann should “work to improve [her] leadership skills.” The 

2013 evaluation rated Spann “1” (poor) in conflict resolution, and “2” (fair) in 

communication, mentoring others, team work; the 2011 performance review suggested 

that Spann “hone the skill of getting buy in from peers,” “improve her flexibility,” and 

“not get frustrated when her ideas are not immediately accepted or implemented.”8 

2. Insufficient time on manufacturing floor

Spann contends that Aerovironment’s assertion that she spent insufficient time on 

the manufacturing floor was a pretext for discrimination because during her last two 

months at Aerovironment, “she was literally on that [manufacturing] floor.” Spann says: 

“Regarding the Tier II floor, [I] was always available, because [I] was literally on that 

floor. . . . Thus, a jury could reasonably conclude that Jenkins was not credible when 

claiming that a Tier II coworker reported to Jenkins, ‘where is she?’ ” 

We do not agree that a jury reasonably could infer pretext from Aerovironment’s 

statement that Spann spent insufficient time on the manufacturing floor. While it is 

undisputed that Spann’s desk was near the “Tier II” manufacturing area, Spann herself 

conceded that she spent only about 20 percent of her time in the manufacturing area 

itself. She testified that she spent the rest of her time “at my desk on my computer” and 

 

8

Some of these comments appeared in the initial version of the 2011 performance 

review, but were subsequently removed at Spann’s request.
22

“[i]f someone needed me on the floor they could come to my cubicle, send me an e-mail 

or phone me.” Spann’s testimony thus was entirely consistent with Jenkins’ statements 

that Spann was not in the manufacturing area “throughout the day,” and that she “had to 

be sought out” when an issue arose.

The real dispute between Spann and Aerovironment, therefore, is not how much 

time Spann actually spent in the manufacturing area, but how much time she should have 

spent there. As we have said, Jenkins testified that to be effective, a manufacturing 

engineer had to be in the manufacturing area “pretty much all the time throughout the 

day.” Laurie Morrow gave similar testimony; she said that a manufacturing engineer’s 

primary role is to “work with the engineers and the production floor,” and that doing so 

requires being “[o]n the production floor.” Although Spann disagreed about the necessity 

of spending significant time in the manufacturing area, her disagreement is insufficient to

create a triable issue of material fact. “ ‘[A]n employee’s subjective personal judgments 

of his or her competence alone do not raise a genuine issue of material fact.’ (Horn [v. 

Cushman & Wakefield Western, Inc. (1999)] 72 Cal.App.4th [798], 816.)” (Morgan v. 

Regents of University of California (2000) 88 Cal.App.4th 52, 76; see also Fercello v. 

County of Ramsey (8th Cir. 2010) 612 F.3d 1069, 1080 [“Absent some evidence of 

retaliatory motive, we will not second-guess an employer’s judgment of an employee’s 

performance.”]; Gilbert v. Des Moines Area Community College (8th Cir. 2007) 495 F.3d 

906, 916 [“ ‘[T]he employment-discrimination laws have not vested in the . . . courts the 

authority to sit as super-personnel departments reviewing the wisdom and fairness of the 

business judgments made by employers, except to the extent that those judgments involve 

intentional discrimination.’ ”].)

3. Altered time records

Spann suggests that there is evidence that some of her time records were altered, 

and a jury reasonably could conclude that Aerovironment deliberately altered the records 

in order to make her look less productive than she actually was. In this regard, Spann 

asserts that (1) Daily Activity Logs produced during discovery “inexplicably omitted 

several entries showing work Spann performed,” and (2) several timecard entries 
23

“inaccurately reflected Spann leaving work significantly earlier than she did.” Spann 

urges that these discrepancies “are significant, and made Spann appear less professional, 

less motivated, and less committed to [Aerovironment] than she was.” 

We do not agree that the time card inaccuracies Spann highlights reasonably 

support an inference that Aerovironment altered such records to justify Spann’s 

termination. As an initial matter, Spann concedes in a footnote that Aerovironment 

acknowledged that there had been a “computer glitch” during discovery, and that it 

produced accurate records when notified of the discrepancies. Further, Spann identifies 

only four Daily Activity Logs (March 1, 4, 5, 6, 2013) that she believes were altered, and 

only four time cards (April 5, 2013; March 12, 2013; July 27, 2012; October 27, 2011) 

that she believes document her leaving earlier than she actually did. These asserted 

discrepancies are de minimis in the context of Spann’s three and a half years of 

employment at Aerovironment; and, in any event, Aerovironment never cited these 

documents as a reason to terminate Spann. 

4. Manufactured paper trail

Spann suggests that Aerovironment manufactured a “paper trail” to justify her 

termination by soliciting negative feedback from coworkers. In support, she relies on a 

January 2013 email from Sitler to product engineer James Campbell, as well as several 

emails from Laurie Morrow to Jenkins from which Spann suggests a jury could infer 

“that Jenkins had asked Spann’s co-worker to essentially spy on Spann and report any 

negative information to him.”

We do not agree that these emails can reasonably be interpreted as Spann suggests. 

The email from Sitler is, on its face, a follow-up to an earlier conversation about Spann’s 

performance, seeking feedback as to “how [Spann] is performing,” “[h]ow is she 

responding to you,” and “what level is she supporting your program[?]”9 The emails 

 

9

In full, the email says as follows: “A couple of months ago I had spoken to you 

regarding Eileen and how things were going, how she was supporting your programs, and 

how you were professionally getting along. You stated in that conversation that she had 

improved the professionalism she displayed in your responses, such as being more 
24

from Laurie Morrow discuss Spann’s performance, but contain no suggestion that Jenkins 

had asked Morrow to “spy” on her. 

5. Reduced need for “lean manufacturing” expertise

Spann suggests that a jury reasonably could infer that Aerovironment’s “alleged[] 

‘. . . reduc[ed] need for [Spann’s] lean manufacturing/analytic expertise’ ” was pretext 

because “a company that was facing budget cuts so substantial that it had to undergo 

three rounds of workforce reductions[] would require an increase, not a decrease, in 

money-saving opportunities, such as LSS [Lean Six Sigma].”10 Not so. Contrary to 

Spann’s suggestion, there is no logical reason why a company manufacturing fewer

products would have an increased need for manufacturing efficiency. Moreover, “if 

nondiscriminatory, [an employer’s] true reasons need not necessarily have been wise or 

correct.” (Guz, supra, 24 Cal.4th at p. 358.) Therefore, we “will not be drawn into an 

extended examination of the sufficiency of the evidence to support each stated reason for 

[Spann’s] termination.” (McGrory v. Applied Signal Technology, Inc. (2013) 

212 Cal.App.4th 1510, 1533.)

 

responsive and less abrasive. You also mentioned that she is responding more. When we 

discussed the responsiveness, you mentioned that you were still very involved in the 

work she is doing. You felt that you needed to give her a lot of direction in order to 

complete the assignment. When we discussed the level of work she was performing, you 

felt that based on the questions and the amount of help you were providing that it was 

well below what would be expected of a Manufacturing Engineer Sr. You also stated that 

at that point the amount of work you were assigning her was less than full time. 

However, you were about to give her a number of tasks. When we spoke, I asked that 

you continue to be supportive and helpful, however, that you were more hands off with 

the assignments that you were giving to her. This was in an effort to allow Eileen to use 

her education and experience to perform at a level equal to her position level and allow us 

to see her performance and better understand her capabilities. [¶] At this time, I wanted 

to follow up with you to see if you were able to give her more responsibility. If not, why

[not]. Also, to ask how she is performing. How is she responding to you and what level 

is she supporting your program. Or if something has changed and you are not utilizing 

her any longer. [¶] Thank you for your honest and complete assessment.”

10 Spann asserts that she was the “resident expert” in the area of lean manufacturing, 

including “Lean Six Sigma,” which Spann said is “ ‘all about cutting costs, saving 

money, [and] efficient operation.’ ”
25

For all of these reasons, there are no triable issues of material fact as to Spann’s 

causes of action for retaliation or failure to prevent retaliation. Summary adjudication of 

these causes of action was properly granted.

DISPOSITION

The judgment is affirmed. Aerovironment is awarded its appellate costs.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EDMON, P. J.

We concur:

ALDRICH, J.

JONES, J.*

 

*

 Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.