1

Filed 1/29/21 Colborn v. Chevron U.S.A. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

SUSAN COLBORN,

Plaintiff and Appellant,

v.

CHEVRON U.S.A. INC.,

Defendant and Respondent.

 A159040

 (Contra Costa County

 Super. Ct. No. MSC14-01280)

Appellant Susan Colborn challenges the trial court’s grant of summary 

judgment to her former employer, Chevron U.S.A. Inc. (Chevron), on her 

claims under the Fair Employment and Housing Act (FEHA) (Gov. Code 

§ 12900 et seq.) of retaliation and failure to prevent retaliation.1 Applying de 

novo review and employing the burden shifting approach to FEHA claims 

adopted by our high court in Guz v. Bechtel National, Inc. (2000) 

24 Cal.4th 317 (Guz) and subsequent cases, we conclude that Chevron met its 

burdens to show Colborn could not establish a prima facie case and that it 

acted for legitimate nonretaliatory reasons and that Colborn failed to raise 

triable issues precluding summary judgment. We therefore affirm.

1 This is the third appeal in this case. In earlier consolidated appeals, 

we reversed the trial court’s denial of Colborn’s request for relief from default

and associated award of costs to Chevron. (Colborn v. Chevron U.S.A. Inc.

(Mar. 26, 2019, A150831, A151494) [nonpub.].)
2

BACKGROUND

I.

Colborn’s First Amended Complaint

In her first amended complaint (FAC) against Chevron, filed in 2013, 

Colborn alleged that she worked for Chevron and one of its wholly owned 

subsidiaries from 1988 until her termination in March 2011. In 

January 2011, her supervisor informed her that management had ultimately 

assigned to an employee (referred to as a “direct report”) who directly 

reported to Colborn, Terry Reich, a performance rank that was lower than 

what had been previously “agreed upon” in a meeting that had been held in 

late 2010. Colborn contacted the human resources department and informed 

them she thought Reich’s final ranking was unfair but was told it would not 

be changed and that Reich had fallen behind his peers. 

The FAC further alleges that on February 23, 2011, she received her 

own ranking from her supervisor, Denise Souza. This ranking was “the 

lowest she had received in her 23 years of employment with Chevron,” and 

she believed she was given that low rank “because of and/or in retaliation for 

her refusal to participate in what she believed was illegal discrimination, 

based on age.” While somewhat unclear, the FAC appears to be alleging that 

Colborn believed the low score given to Reich was age discrimination and 

that her refusal to give that low score to him “was the reason behind adverse 

employment actions [against Colborn] including, but not limited to 

reprimand, alleged insubordination and negative annual performance 

ranking.” The FAC alleges that Reich “complained about suspected age 

discrimination and his performance ranking was changed (to what [Colborn]

initially prepared) as a result.” 
3

The FAC further alleges that Colborn “filed an intake questionnaire 

with the [Oakland office of the U.S. Equal Employment Opportunity 

Commission (EEOC)] regarding this issue” on February 25, 2011, and “spoke 

with an EEOC investigator at the Oakland office and completed a charge of 

discrimination” on March 8, 2011. When she returned to Chevron from a 

vacation on March 9, 2011, she found “ ‘Steps to Employee Problem Solution 

Process’ (‘STEPS’) paper work for [Reich] in her Inbox.” The same morning, 

Souza asked to meet with her to discuss what Colborn “wanted to include in 

the STEPS paperwork.” She met with Souza and a representative from 

human resources, who were “abrasive in confronting” her, which she believed 

“was retaliation as a result of her speaking with the EEOC.” Colborn 

contacted the EEOC again and “informed them of the situation.” 

The next day, March 10, she emailed Souza’s supervisor regarding the 

issues that had arisen the day before. That afternoon, Souza and a Human 

Resources representative came to her office, confiscated her badge, company 

Blackberry and credit card, and told her security guards would escort her out 

of the building. On March 11, 2011, Colborn returned to the EEOC Oakland 

office and filed a subsequent charge for unfair termination, and later filed a 

complaint with the California Department of Fair Employment and Housing 

(DFEH). 

The FAC asserts two causes of action, both for violations of a provision 

of FEHA, Government Code section 12940. The first, under subdivision (h),

is based on the allegations that defendants “retaliated against her for 

refusing to participate in and complaining about unlawful discrimination on 

the basis of age” and that “the stated reasons (insubordination) for her 

termination were pre-textual.” The real reason for her termination, the FAC 

alleges, was “her refusal to change her performance review of another 
4

employee, (Terry Reich) which she reasonably believed it was discriminatory 

[sic]—based upon that employee’s age rather than his performance.” The 

FAC also alleges Colborn “was instructed by her supervisor to change her 

performance review of Mr. Reich, and when she refused and complained, she 

was disciplined for insubordination” by having her employment terminated. 

According to the FAC, Colborn’s complaints and refusal to participate in 

suspected age discrimination against Reich were a motivating reason for her 

termination. The second cause of action, under Government Code 

section 12940, subdivision (k), alleges that Chevron had constructive notice of 

and failed to take reasonable steps to prevent the alleged discrimination and 

retaliation against Colborn. 

II.

The Summary Judgment Record

The parties’ papers regarding Chevron’s motion for summary judgment 

flesh out the events referred to in the FAC. According to these papers, in 

2009, after Colborn had worked for Chevron and one of its subsidiaries for 

21 years in positions in the United States and abroad, her assignment as an 

expatriate ended, her visa expired and she sought a new position within the 

company. In her previous positions, Colborn was “promoted up through 

10 pay grades” and “consistently recognized as a technical resource, for 

producing quality work, and for meeting [her] responsibilities no matter what 

assignment [she] was given.” In June 2009, Colborn was within days of being

terminated for lack of a position when Souza, the manager of Chevron’s 

Operational Excellence Organization for the Business and Real Estate 

Services division (CBRES), hired Colborn for a management position. 

Colborn knew Souza from earlier in her career at Chevron. 
5

From the beginning of her employment with CBRES, Colborn appeared 

to Souza to be disinterested in the work. She told Souza she was “trying to 

‘post’ out of the group and find another position . . . in the Global Upstream & 

Gas (‘Upstream’) organization where she had previously worked as an 

expatriate.” She spent significant time, while working, applying for other 

positions and inquiring about the status of the selection process for those 

positions. Souza inferred Colborn had accepted the position in CBRES “only 

so she would not be terminated when her expatriate assignment had 

previously ended.” As of April 2010, ten months into her new position, she 

wrote that her career goal was to return to Upstream as soon as possible. 

Souza discussed some performance deficiencies with Colborn during 

their regular one-on-one meetings. Among other things, Colborn “was not an 

effective supervisor, did not manage her direct reports, including Reich.” 

Souza did not oppose Colborn applying for other jobs. However, Souza spoke 

with Colborn about the fact that she was not sufficiently “focused on the work 

required of her position because of the inordinate amount of time she spent 

trying to return to the Upstream organization where she previously worked.” 

And in November 2010, having recently received complaints that Colborn’s 

conduct in seeking other positions was disruptive and inconsistent with 

established protocol, Souza consulted with Human Resources, counseled 

Colborn about the issue and gave her a written warning.

Chevron’s performance evaluation process is referred to as the 

“Performance Management Process,” or “PMP.” That process entails 

reviewing employees on “their overall performance, behavior, and 

accomplishments relative to their peers, and their contributions to the success 

of their group.” Employees complete portions of a PMP form describing their 

own achievements and their supervisors then review the form and add their 
6

own comments. Then, at meetings with other supervisors, employees are 

“collectively discussed and given a numerical rating of 1 (‘Exceptional 

Performance’); 2+, 2, or 2- (varying degrees of ‘Meets Performance 

Expectation’); or 3 (‘Falls Short of Performance Expectations’), as compared to 

the performance of their peers.” Peers are “individuals in the organization 

that are at the same [pay grade].” A supervisor “may have in mind an initial 

rating for the employee going into the ranking sessions,” but “that rating may 

change during the ranking discussions.” 

On February 24, 2011, Colborn received her 2010 PMP, and Souza 

discussed the ranking with her. She was ranked “2-.” That meant she was 

meeting most, but not all, expectations and performing at a level below that 

of her peers.2 Souza discussed with Colborn why she was ranked lower than 

her peers and areas where she needed to improve. The feedback section of 

the report contained a mix of positive and negative feedback. Colborn 

received a pay raise after getting this rating. 

One of Colborn’s important duties as a manager was to effectively 

supervise her direct reports, including Reich. She was responsible for 

managing their performance, including coaching and counseling them as 

necessary. She was also responsible for conducting their performance 

reviews. Throughout 2010, Colborn had expressed concerns about Reich’s 

performance, complaining that he was not completing his tasks on time and 

that she often had to perform his work for him. She told Souza she “planned 

to ‘let him fail’ to ‘prove’ that he had performance deficiencies.” Souza told 

her that, as Reich’s supervisor, “it was her job to coach him and to ensure she 

provided him feedback on his performance so he could improve.” 

2 Colborn had received a “2” rating in 2008, before she joined CBRES, 

and in 2009. 
7

Toward the end of 2010, Souza and Colborn discussed Reich’s 

performance ranking and agreed on a tentative ranking of “2-.” Colborn 

agreed to that ranking and thought it was “a fair assessment because Mr. 

Reich had inconsistent follow through, a subject [she had] discussed with Ms. 

Souza throughout 2010.” There had been three “substantial projects” that

year for which Reich “required coaching with little to no progress.” He had 

not completed one project and Colborn had to perform much of his work on

another. During the management team meeting about Reich’s initial 

ranking, the subject of his age never came up. 

During subsequent sessions attended by other managers and

supervisors to discuss employees’ performances and compare them to those of 

their peers, it was decided that Reich’s “rating for 2010 was a ‘3’ because he 

was not meeting expectations relative to his peers.” Colborn understood that 

Reich’s rating could be changed during this discussion. The final ranking 

was determined at a meeting Colborn did not attend, where the subject of

Reich’s age did not come up. Souza told Colborn Reich had been ranked a “3”

because he had not performed as well as his peers, and provided notes that 

indicated he was “falling short of expectation along the way” and had been 

coached “with no progress.” 

Colborn did not believe “3” was a fair rating for Reich. On February 22, 

2011, Souza told her to “come up with a reason for Mr. Reich’s final rating, 

stating something to the effect of ‘just figure something out,’ or ‘you’ll think of 

something.’ ” However, Colborn never told Souza or anyone else at Chevron

that she believed Reich had been rated a “3” or been treated unfairly because 

of his age.3 She did not remember complaining, nor recall ever having formed 

3 Colborn purported to dispute this fact, which was asserted in Souza’s 

declaration, based on her inability to recall whether she complained to 
8

the opinion, that Reich’s rating was reduced from “2-” “ to “3” based on his 

age. She simply believed the “2-” rating “was a fair assessment because 

Mr. Reich had inconsistent follow through, a subject I discussed with 

Ms. Souza throughout 2010.” Colborn recalled that Reich’s tendency to miss 

deadlines or his “commitment follow-through” issue was “why we ended up 

where we did with his final rank.”

Chevron policy required that supervisors of employees who received a 

rating of “3” create a Performance Improvement Plan, or “PIP,” to assist the 

employee to improve. A PIP is not a disciplinary measure; it is “a tool used to 

focus employees on areas needing improvement in order to help them to

succeed.” Souza and Bob Howisey of Human Resources reminded Colborn

multiple times that Reich’s “3” rating required a PIP and provided her 

information to assist her in creating one. Souza and Howisey directed 

Colborn to explain the reasons for the rating to Reich and discuss his 

performance deficiencies so that he understood what areas he needed to focus 

on and develop. 

Colborn did not want to participate in putting Reich on a PIP because 

she disagreed with his “3” rating. She never prepared a PIP for Reich or

placed him on a PIP. Instead, she met with Reich and delivered the message 

that his rating was a “3” because he had not performed at the level of his 

peers. She did not “say anything more because [she] was not comfortable just 

making something up and [she] had no more specific information regarding 

the comparison with his peers or otherwise.” 

After receiving his rating, Reich complained to Souza and Colborn that 

Colborn had not given him feedback and said he had questions about the 

anyone at Chevron that she believed Reich’s final rating was based on his age 

rather than his performance. Not recalling whether an event occurred is not 

evidence that it did occur and does not raise a genuine issue of triable fact.
9

rating. He emailed Souza and Colborn, requesting “the detail PIP [sic] that 

will identify and validate that [his] performance fits in this category” and 

stating he wanted “written specifics.” He complained that he “should have 

been aware in 2010 if [his] performance was lacking.” He requested “more 

detail on where [he] fell short in 2010” and, once he received the PIP, that

someone “go over the details and address those areas that are identified” with 

him. Colborn responded with a two-sentence email stating, “I do not have 

anything further of value to add” and “I am sorry you feel the way you do.” 

In Souza’s view, “[t]his was not an acceptable response by a manager.” 

Reich filed a formal complaint with Human Resources, invoking a 

“process [called STEPS] that involves having a facilitated discussion between 

the supervisor and employee to resolve disputes.” Souza declared, apparently 

in connection with the STEPS process, that “[i]t was discovered that Ms. 

Colborn had not provided Mr. Reich adequate feedback during the 

performance year as she and [Souza] had previously discussed she would do 

when she expressed concerns to [Souza] about Mr. Reich’s performance.”

Colborn partly disputes this, stating she “provided constructive feedback” to

Reich throughout 2010. 

On February 28, 2011, Reich emailed Souza and Howisey stating that 

Colborn had said “she would not be helping [him] with the PIP [and] to 

contact [Howisey].” Howisey advised Souza, “The PIP is [Colborn’s] 

responsibility as [Reich’s] supervisor. She needs to own this from start to 

finish as she will be the one determining if he has successfully met the PIP 

expectations.” Howisey said he might need Souza’s “assistance in helping 

[Colborn] understand what her responsibilities are if [Reich] is correctly 

quoting her that she would not be helping him with his PIP.” 
10

Colborn took a vacation at some point and returned on March 9, 2011,

to find Reich’s formal STEPS complaint in her email inbox. In it, Reich 

stated, among other things, “I feel because of my age, being a white male and 

years of experience, I am being targeted and discriminated against.” At some 

point previously in 2011, Howisey had made a comment in Colborn’s presence 

about Reich “not keeping up with his peers and that [he] should retire or 

leave.” Colborn was concerned about Reich’s final rating “and his belief that 

he was being discriminated against based on age.” However, as we have 

stated, Colborn does not remember ever thinking Reich’s performance rating 

was made a “3” rather than a “2-” because of his age or expressing such a 

belief to anyone at Chevron. 

On March 9, 2011, Souza attempted to meet with Colborn to discuss 

responding to Reich’s request for specific information regarding his 

performance rating. She stopped by Colborn’s office at about 11:15 a.m. and 

was taken aback when, according to her, Colborn refused to meet with her. 

When asked why, Colborn said she wanted more information about her own 

performance rating, which Souza viewed as unrelated to Souza’s request to 

meet with Colborn about Reich’s need for feedback. According to Souza, even 

though she offered to talk with Colborn about her own rating again, Colborn 

“reiterated that she was unwilling to meet,” and told her “that if I wanted 

anything from her, I needed to put it in writing because she would not have a 

verbal discussion.” 

Colborn denied telling Souza she would not meet with her but admitted

she “asked [Souza] why we were meeting, for specifics” and told Souza she 

would need to put in writing an agenda of what was going to be discussed 

before Colborn would meet with her. Colborn agreed that she asked Souza 

“about discussing my 2010 review.” 
11

After “giving Ms. Colborn some time to reflect,” Souza emailed her at 

1:57 p.m. that same day, stating she wanted to meet at 3:00 p.m. to discuss 

Reich’s request for information. Colborn responded that she had just sent 

Souza the completed comments for Reich’s STEPS documentation and that 

Souza was “welcome to follow-up with Bob [Howisey] as needed.”4

Souza continued to press for a meeting, writing to Colborn that she had 

asked Howisey “to come over at 3pm to meet with us” and that “we’ll come by 

at 3pm to pick you up.” Colborn, copying Howisey, responded again, “You 

have everything you need from me as [Reich’s] Supervisor. Please feel free to 

make comments in the documents that I have provided to you.” 

This time, Howisey followed up, writing, “Susan, I’m sorry but I 

disagree. [¶] What you provided is not satisfactory for several reasons. [¶] In 

addition I need to understand what happened this morning on your refusal to 

meet with [Souza] to address this important STEPS issue. [¶] We will see you 

at 3:00.” Colborn responded, “Thanks Bob. As mentioned, you have what is 

needed from me as [Reich’s] Supervisor. I am happy to review written

comments/additions from you and Denise.” 

According to Souza, at 3:00 p.m., she and Howisey went to Colborn’s 

office, where Colborn saw them through a window while on a phone call. 

Colborn interrupted her call to tell them she would not meet and asked them 

to put everything in writing, to which Souza responded that they would wait 

4 In its moving papers, Chevron did not include the STEPS 

documentation that Colborn sent, but Souza’s declaration describes it as 

“insufficient” and “not adequately or specifically inform[ing] Mr. Reich of the 

reasons for his ‘3’ rating as he had requested.” Colborn’s declaration attached 

the STEPS documentation, in which she stated to Reich that she believed a 

ranking of “2-” “fairly represents your performance for 2010” and that she 

was told the ranking of “3” was “relative to your peers,” but that she “did not 

receive any specific information on this decision.”
12

outside while Colborn finished her call. According to Souza, “[a]fter a few 

minutes, Ms. Colborn narrowly opened her door to prevent us from entering 

and stated she would not meet. She repeatedly told us ‘no,’ she would not 

meet. She then closed the door and went back to her desk.” Howisey then 

opened her door and “specifically told her that our request to meet was a 

direct instruction, that refusing to meet would be considered insubordination, 

and he asked if she would please reconsider.” Colborn still refused and said, 

“ ‘I will not meet with you. Please just write me up,’ and closed her door.”5

Colborn’s account of these events is similar, but it varies in two

respects. First, she denied telling Howisey she would not meet with him and 

Souza. However, a document she attached to and authenticated in her 

declaration as an email she wrote to herself the following day, which she 

stated “describ[es] this incident,” states, in relevant part: “I returned to work 

from vacation yesterday. Yesterday afternoon, Denise [Souza] made 

arrangements for me to meet with her and Bob Howisey to discuss Terry 

Reich’s STEPs process. Terry is using STEPs because he believes that his 

salary treatment is also unfair. Prior to the meeting I completed the 

Supervisor’s comments and forwarded them to Denise and Bob. There was no 

reason to meet with them. When they arrived at my office, from the hallway 

Bob critized [sic] my STEPs comments, told me they were ‘sad’ and then 

threatened me with insubordination because I would not meet with them. 

This was very disrespectful and demeaning. So I went ahead and told them 

both that they were retaliating and I was going to contact the EEOC, as that 

is what I told to do [sic] when I met with the representative on Tuesday. I 

contacted the San Francisco office because I could not get anyone in 

5 Souza’s notes of these events, made that afternoon, are consistent 

with this account.
13

Oakland.” (Italics added.) When shown this document at her deposition, 

excerpts of which were submitted by Chevron, Colborn admitted it was 

accurate. 

Colborn also admitted in deposition that, after receiving Souza’s email 

about meeting with her and Howisey at 3:00 p.m., she understood Souza “was 

insisting that they come and talk to [her]” and that “they still wanted to meet 

with [her].” Further, she acknowledged that her responding email telling 

Souza she had “everything you need from me” and to “feel free to make 

comments in the documents” was telling Souza that she “didn’t think it’s 

necessary to meet.” She sent the same message to Howisey after he 

intervened. 

In her declaration and response to Chevron’s statement of undisputed 

facts, Colborn also admitted that when Souza and Howisey arrived at her 

office and tried to speak with her, she spoke to them in the hallway and 

(again) “told them that [she] had given [her] comments and there really was 

not anything else [she] could add.” In her deposition, she admitted she 

understood at the time that Howisey was instructing her she had to meet 

with Souza and that Howisey told her “that [she] would be insubordinate if

[she] didn’t meet with them.” She also admitted she told Howisey “to 

document it, to write [her] up.” In an email she wrote to Souza’s supervisor 

the day after these events, she stated that Souza made arrangements to meet 

with her and Howisey, that “[t]here was no reason to meet with them” and 

that Howisey “threatened [her] with insubordination because [she] would not 

meet with them.” (Italics added.)

Colborn’s second variation from Chevron’s account is her declaration

statement that she told Souza and Howisey they were “retaliating and that 

[she] would contact or had already contacted the EEOC.” 
14

On March 10, 2011, Souza and a person from Human Resources

informed Colborn that her employment was being terminated. According to 

Souza, Colborn was fired “based solely on her insubordinate and 

unacceptable behavior.”

III.

The Trial Court’s Ruling

The trial court issued a lengthy ruling granting Chevron’s motion for 

summary judgment. The court explained the bases for its ruling, which 

included its conclusions, in applying the burden-shifting McDonnell Douglas

test (which we will soon discuss), that Colborn was required but failed to 

show she engaged in any protected activity; Chevron demonstrated a valid 

and lawful reason for firing Colborn; and Colborn did not raise a triable issue 

of fact regarding whether the firing was pretextual.

The court entered judgment in favor of Chevron and against Colborn, 

and Colborn timely appealed. 

DISCUSSION

I.

Legal Standards

A. Summary Judgment

Summary judgment is properly granted when there is no triable issue 

as to any material fact and the moving party is entitled to judgment as a 

matter of law. (Code Civ. Proc., § 437c, subd. (c).) “First, and generally, from 

commencement to conclusion, the party moving for summary judgment bears 

the burden of persuasion that there is no triable issue of material fact and 

that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic

Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) “[G]enerally, the party 

moving for summary judgment bears an initial burden of production to make 
15

prima facie showing of the nonexistence of any triable issue of material fact; 

if he carries his burden of production, he causes a shift, and the opposing 

party is then subjected to a burden of production of his own to make a prima 

facie showing of the existence of a triable issue of material fact.” (Ibid.) “A 

prima facie showing is one that is sufficient to support the position of the 

party in question.” (Id. at p. 851.) 

“[H]ow the parties moving for, and opposing, summary judgment may 

each carry their burden of persuasion and/or production depends on which

would bear what burden of proof at trial.” (Aguilar, supra, 25 Cal.4th at 

p. 851.) “[I]f a defendant moves for summary judgment against [a plaintiff 

who would bear the burden of proof by a preponderance of the evidence at 

trial], he must present evidence that would require a reasonable trier of fact 

not to find any underlying material fact more likely than not—otherwise, he

would not be entitled to judgment as a matter of law, but would have to 

present his evidence to a trier of fact.” (Id. at p. 851.) To establish a triable 

issue of fact, a plaintiff opposing summary judgment must present evidence 

that, together with permissible inferences, shows the conduct she complains 

of “more likely than not” occurred. (Id. at pp. 852, 856-857.) If all the 

evidence presented by the plaintiff and permissible inferences show and 

imply that unlawful conduct is “only as likely as permissible” conduct “or 

even less likely,” the court must grant the defendant’s motion for summary 

judgment, “because a reasonable trier of fact could not find for the plaintiff.” 

(Id. at pp. 852, 857, italics omitted.)

Finally, “even though the court may not weigh the plaintiff’s evidence 

or inferences against the defendants’ as though it were sitting as the trier of 

fact, it must nevertheless determine what any evidence or inference could

show or imply to a reasonable trier of fact. . . . In so doing, it does not decide 
16

on any finding of its own, but simply decides what finding such a trier of fact 

could make for itself.” (Aguilar, supra, 25 Cal.4th at p. 856.)

We independently review an order granting summary judgment. 

(Aguilar, supra, 25 Cal.4th at p. 860.) Like the trial court, we consider all 

the evidence and all the inferences reasonably drawn therefrom (Code Civ. 

Proc., § 437c, subd. (c); Aguilar, at p. 843) and view such evidence and 

inferences in the light most favorable to the opposing party. (Aguilar, at

p. 843.) We “view the evidence in a light favorable to plaintiff” as the

nonmoving party, liberally construing her evidentiary submission while

strictly scrutinizing defendants’ own showing and resolving any evidentiary

doubts or ambiguities in plaintiff’s favor. (Saelzler v. Advanced Group 400

(2001) 25 Cal.4th 763, 768.)

B. FEHA Retaliation Claims

Colborn’s retaliation claim is based on the retaliation provision of 

FEHA, which makes it unlawful for an employer “to discharge, expel, or 

otherwise discriminate against any person because the person has opposed 

any practices forbidden under [FEHA].” (Gov. Code, § 12940, subd. (h).)

In Guz, supra, 24 Cal.4th 317, the California Supreme Court adopted 

the “three-stage burden-shifting test established by the United States 

Supreme Court” for trying discrimination claims brought under FEHA. (Guz, 

at p. 354.) That test, known as the McDonnell Douglas6 test, applies not only 

to discrimination claims but also to FEHA claims alleging retaliation. 

(Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz).)

The McDonnell Douglas test “places on the plaintiff the initial burden 

to establish a prima facie case of discrimination.” (Guz, supra, 24 Cal.4th at 

6 The test was first established in McDonnell Douglas Corp. v. Green

(1973) 411 U.S. 792.
17

p. 354.) If the plaintiff meets that burden, a presumption of discrimination 

arises. (Id. at p. 355.) The presumption, which is rebuttable, shifts the 

burden to the defendant employer to produce evidence showing it acted “for a 

legitimate, nondiscriminatory reason.” (Id. at pp. 355-356.) “If the employer 

sustains this burden, the presumption of discrimination disappears.” (Id. at 

p. 356.) “The plaintiff must then have the opportunity to attack the 

employer’s proffered reasons as pretexts for discrimination, or to offer any 

other evidence of discriminatory motive. [Citations.] In an appropriate case, 

evidence of dishonest reasons, considered together with the elements of the 

prima facie case, may permit a finding of prohibited bias. [Citations.] The 

ultimate burden of persuasion on the issue of actual discrimination remains 

with the plaintiff.” (Ibid.) 

To establish a prima facie case of retaliation under FEHA, plaintiffs 

must show “ ‘that (1) they engaged in activities protected by the FEHA, (2) 

their employers subsequently took adverse employment action against them, 

and (3) there was a causal connection between the protected activity and the 

adverse employment action.’ ” (Husman v. Toyota Motor Credit Corp. (2017) 

12 Cal.App.5th 1168, 1192-1193.) The causal link element required to satisfy 

plaintiff’s first prong burden may be established “by producing evidence of 

nothing more than the employer’s knowledge that the employee engaged in 

protected activities and the proximity in time between the protected action 

and the allegedly retaliatory employment decision.” (McRae v. Dept. of 

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

If the plaintiff meets that first prong burden, a presumption of 

discrimination or retaliation arises, shifting the burden to the employer. 

(Guz, supra, 24 Cal.4th at p. 354.) “If the employer produces substantial 

evidence of a legitimate, nondiscriminatory reason for the adverse 
18

employment action, the presumption of discrimination created by the prima 

facie case ‘ “simply drops out of the picture” ’ [citations] and the burden shifts 

back to the employee to prove intentional discrimination.” (Morgan v.

Regents of University of Cal. (2000) 88 Cal.App.4th 52, 68 (Morgan).)

The employer’s burden under the second prong is to articulate a 

legitimate reason for its employment decision, that is, one unrelated to 

retaliation or discrimination. This “likewise is not an onerous burden 

[citation], and is generally met by presenting admissible evidence showing 

the defendant’s reason for its employment decision.” (Wills v. Superior Court

(2011) 195 Cal.App.4th 143, 160 (Wills).) “[I]f nondiscriminatory [or 

nonretaliatory], [the employer’s] true reasons need not necessarily have been 

wise or correct.” (Guz, supra, 24 Cal.4th at p. 358.) “ ‘It is the employer’s 

honest belief in the stated reasons for firing an employee and not the 

objective truth or falsity of the underlying facts that is at issue in a 

discrimination case.’ ” (Wills, at p. 170.) 

“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, 36 Cal.4th at p. 1042.) “The plaintiff must then have the 

opportunity to attack the employer’s proffered reasons as pretexts for 

discrimination, or to offer any other evidence of [retaliatory] motive.” (Guz, 

supra, 24 Cal.4th at p. 354.) “Direct evidence of retaliation may consist of 

remarks made by decisionmakers displaying a retaliatory motive.” 

(Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th 803, 816.)

In Guz, the court addressed to a great extent how the McDonnell

Douglas formula applies to an employer’s motion for summary judgment 

against a claim of employment discrimination. (Guz, supra, 24 Cal.4th at 
19

p. 356.)7 As the moving party, the court observed, an employer may meet its 

burden to show the plaintiff’s action has no merit by demonstrating that one 

or more elements of the plaintiff’s claim cannot be established or that there is 

a complete defense to the action. (Ibid.). “Only after the defendant has met 

that burden must the plaintiff respond with admissible evidence raising a 

triable issue.” (Ibid.) As an alternative or in addition to showing the plaintiff

cannot establish an essential element of a FEHA claim, the defendant may

“proceed[] directly to the second step of the McDonnell Douglas formula” by

“set[ting] forth competent, admissible evidence [citations] of its reasons,

unrelated to [prohibited] bias, why it [took the complained of adverse

employment action].” (Id. at p. 357.) If the employer’s explanation is proved

by competent and admissible evidence and its reasons are unrelated to

intentional bias, the burden shifts to the plaintiff “to rebut this facially

dispositive showing by pointing to evidence which nonetheless raises a

rational inference that intentional discrimination occurred.” (Ibid.; id. at

p. 360.) 

II.

Analysis

Chevron contends it was entitled to summary judgment because, first,

it demonstrated that Colborn could not make a prima facie showing of 

7 The court did not resolve an issue that has divided the appellate 

courts, which is whether a plaintiff is required to demonstrate a prima facie 

case “at the outset” or only after the moving defendant has made a showing 

that the plaintiff cannot establish one or more elements of her prima facie 

case or meet its burden under the second prong of McDonnell Douglas by 

showing its action was based on legitimate, nondiscriminatory factors. (See

Guz, supra, 24 Cal.4th at pp. 356-357.) The defendant in Guz had made both 

the first prong and second prong showings, and thus the burden had 

unquestionably shifted to the plaintiff in that case. We need not resolve this 

issue here either because of the nature of Chevron’s argument. 
20

retaliation under FEHA and, second, even if Colborn could make such a 

showing, Chevron met its burden to establish a legitimate non-retaliatory 

reason for terminating her employment, which Colborn did not effectively 

rebut. 

Colborn argues she met her prima facie burden by showing a temporal 

proximity between her engagement in protected activity and Chevron’s

adverse actions. She further contends that she raised triable issues of fact 

regarding whether Chevron had lawful reasons for the adverse actions it took 

and whether Chevron’s purported reasons are pretextual or unworthy of 

credence. 

More specifically, Colborn contends that she showed she had engaged 

in two types of protected activity: “complaining” and “refusing to participate 

in” what she believed was age discrimination. First, Colborn asserted in 

opposition to summary judgment, for the first time, that she informed Souza 

in June 2009 and April 2010, and Howisey in November 2010, that she had 

filed an intake questionnaire with the EEOC before coming to work for 

CBRES. Colborn argued her filing of that questionnaire constituted a 

“complaint” that raised a triable issue as to whether Chevron retaliated 

against her for this “complaining” to the EEOC by giving her a negative 

review and/or firing her. As we will discuss, Colborn’s reliance on this theory 

was improper because it was beyond the bounds of the FAC and was based on 

evidence to which Chevron objected and that the trial court properly 

excluded. 

Second, Colborn argued two theories of retaliation for protected activity 

that were referred to in the FAC. First, she asserted that her refusal to 

engage in age discrimination against Reich led Souza and Howisey to fire 

her. Second, she asserted that her threat to Souza and Howisey on March 9, 
21

2011, that she had filed or intended to file an EEOC complaint also 

constituted a “complaint” that led them to fire her in retaliation.

A. Colborn’s Improperly Asserted Retaliation Theory

In its order granting summary judgment, the trial court sustained 

Chevron’s objections to the portions of Colborn’s declaration that referred to 

her having told Souza and Howisey she had filed an intake questionnaire 

with the EEOC in 2009 before she came to work at CBRES.

8 The court 

concluded this evidence was irrelevant because Colborn’s FAC did not allege 

that Chevron retaliated against her for filing the intake questionnaire. The 

court rejected her theory of retaliation based on the 2009 questionnaire for 

that and other reasons.

The trial court was correct to reject this theory of protected activity. It 

is well established that “ ‘[t]he pleadings delimit the issues to be considered 

on a motion for summary judgment. [Citation.]’ [Citation.] Thus, a 

‘defendant moving for summary judgment need address only the issues raised 

by the complaint; the plaintiff cannot bring up new, unpleaded issues in his 

or her opposing papers.’ [Citation.] ‘To create a triable issue of material fact, 

the opposition evidence must be directed to issues raised by the pleadings. 

[Citation.] If the opposing party’s evidence would show some factual 

assertion, legal theory, defense or claim not yet pleaded, that party should 

seek leave to amend the pleadings before the hearing on the summary 

judgment motion. [Citations.]’ [Citation.] . . . [Plaintiff’s] separate 

statement of material facts is not a substitute for an amendment of the 

complaint.’ ” (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1253.)

8 The record contains no written response to Chevron’s objections, nor 

a transcript of the summary judgment hearing at which such objections 

might have been discussed. 
22

Colborn concedes that she did not “specifically allege in her [FAC] any 

facts concerning the 2009 EEOC intake questionnaire,” but asserts that she 

testified in her deposition about informing Mr. Souza or Mr. Howisey in 

June 2009, April 2010 and November 2010 that she had contacted the EEOC.

She contends the standard for whether a court should consider a theory 

presented at summary judgment, rather than being based on what is alleged 

in a complaint, is “whether such a particular theory or defense is one that the 

opposing party could have reasonably anticipated would be pursued, and 

whether a request for leave to amend accordingly would likely have been 

granted.” Colborn relies on a liberal framework applied in FPI Development, 

Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 385 and Howard v. Omni 

Hotels Management Corp. (2012) 203 Cal.App.4th 403. But even that 

framework requires that a pleading give the opposing party at least minimal 

notice of the theory asserted. (See FPI, at p. 385; Howard, at p. 422.) Here, 

the complaint did not give even minimal notice that Colborn was asserting 

any claim that Souza retaliated against her because of statements she made 

in 2009 and 2010 that she had filed an intake questionnaire with the EEOC

in 2009 before she came to work for CBRES. The complaint simply does not 

allege that Colborn filed such a questionnaire or that she made any 

statements about a 2009 questionnaire to anyone at Chevron.

9 

9 Colborn filed a request for judicial notice with this court seeking to 

introduce deposition excerpts of testimony by her that she discussed the 2009 

EEOC questionnaire. Chevron did not initially oppose the request and,

under the misimpression that the excerpts had been submitted to the trial 

court and inadvertently omitted from the record on appeal, we granted it. 

Chevron opposes the request in its respondent’s brief and makes clear the 

excerpts were never submitted to the trial court. We therefore reconsider the 

request for judicial notice, sua sponte, and deny it. But even if we considered 

these excerpts, the outcome would be no different in the absence of any legal 

authority to support Colborn’s legal argument. 
23

The FAC does allege Colborn had two contacts with the EEOC, on 

March 8 and March 11, 2011.

10 These alleged contacts related to an intake 

questionnaire and complaint Colborn filed with the EEOC in 2011, and are 

coupled with the further allegations that Chevron “retaliated against her 

for . . . complaining about unlawful discrimination on the basis of age.” They 

were (contrary to Chevron’s argument) sufficient to put Chevron on notice 

that Colborn was basing her retaliation claims in part on her having stated 

that she filed or would file an EEOC complaint in 2011. However, these

allegations about 2011 did not so much as hint that Colborn’s retaliation 

claim was based on comments she purportedly made to Souza and/or Howisey 

in 2009 and 2010 about an EEOC questionnaire she submitted sometime 

early in 2009 when she worked for a different department of Chevron. The 

FAC alleges that “the real reason for [Colborn’s] termination was her refusal 

to change her performance review of another employee, (Terry Reich) which 

she reasonably believed it was discriminatory [sic]—based upon that 

employee’s age rather than his performance.” The 2009 intake questionnaire 

Colborn referred to for the first time in opposition to summary judgment was, 

by her own characterization, made because of what Colborn considered “a 

forced relocation to Houston,” an issue she “thought was closed because of the 

appointment to the new position” at CBRES. It did not relate to any alleged 

age discrimination against Reich, and thus had nothing to do with the 

retaliation claim alleged in the FAC.

In short, the trial court was correct to reject Colborn’s intake 

questionnaire retaliation theory (and her related evidentiary submissions) on 

the ground that it was beyond the scope of the FAC. 

10 The FAC also alleges, presumably to show Colborn exhausted her 

administrative remedies, that she filed a complaint with the Department of 

Fair Housing and Employment in September 2011. 
24

B. Colborn’s Properly Asserted Retaliation Theories

We turn now to the theories that are encompassed by the FAC and, 

therefore, were properly asserted by Colborn in opposition to Chevron’s 

summary judgment motion, namely her age discrimination and 2011 EEOC 

complaint retaliation theories. 

1. Colborn’s Age Discrimination Retaliation Theory

Regarding Colborn’s age discrimination retaliation theory, Chevron 

claims Colborn cannot establish the required causal link element of her 

prima facie case because “the evidence is undisputed that [Chevron] was 

unaware that [Colborn] allegedly engaged in any protected activity.” As 

Chevron points out and our high court has instructed, “[s]tanding alone, an 

employee’s unarticulated belief that an employer is engaging in 

discrimination will not suffice to establish protected conduct for the purposes 

of establishing a prima facie case of retaliation, where there is no evidence 

the employer knew that the employee’s opposition was based upon a 

reasonable belief that the employer was engaging in discrimination.” 

(Yanowitz, supra, 36 Cal.4th at p. 1046.)

We agree that Chevron has shown Colborn cannot establish the 

requisite causal element of her age discrimination retaliation claim. Chevron 

showed Colborn did not inform Souza, Howisey or anyone else at Chevron, 

prior to her termination, that she believed Reich had been rated a “3”

unfairly because of his age or even that she formed an opinion that they were 

engaging in age discrimination against Reich. Rather, her claim appears to 

be that her failing to put Reich on a PIP as directed, explain adequately the

bases for his rating, and meet with Souza and Howisey to discuss these 

matters constituted protected activity because she took these acts as part of 
25

her opposition to age discrimination against Reich.

11 However, the causal 

link between these activities and her termination is missing because there is 

no evidence suggesting Souza, Howisey or anyone else at Chevron knew or 

should have known these actions were an attempt by Colborn to oppose what 

she believed was discriminatory conduct. Thus, Chevron has met its first 

prong burden of showing Colborn cannot make out a prima facie case on this 

theory.

Colborn fails to rebut Chevron’s showing with evidence of a triable 

issue of fact on the causal link element. Colborn does not even establish that 

she had a good faith belief that Reich’s rating was based on age

discrimination, much less that she somehow communicated such a belief to 

Chevron.12 Her declaration states only that she believed his rating was 

“unfair,” and does not state that she ever communicated even this much to 

11 Chevron correctly argues that there is no direct evidence that 

anyone asked Colborn to change Reich’s rating. However, we read the FAC

and Colborn’s summary judgment papers liberally to mean that her refusal to 

provide reasons to explain or justify Reich’s final performance ranking of “3,”

refusal to put Reich on the PIP and refusal to meet with Souza and Howisey 

constituted the protected activity of refusing to “participate in what she 

believed was illegal discrimination based on age.” 

12 This case thus is unlike Yanowitz, in which the court held the 

evidence was sufficient to support a finding that by repeatedly refusing to 

implement a blatantly improper directive to fire a dark-skinned sales 

associate and replace her with a lighter-skinned blonde unless, she insisted,

her superior provided “ ‘adequate justification,’ ” the plaintiff “sufficiently 

conveyed to [her superior] that she considered the order to be discriminatory 

and put him on notice that he should reconsider the order because of its 

apparent discriminatory nature.” (Yanowitz, supra, 36 Cal.4th at p. 1048.) 

There is no evidence here that Souza or Howisey engaged in such blatant or 

obvious age discrimination against Reich or that Colborn’s failures to comply 

with their directives communicated that she was objecting to such

discrimination.
26

Souza or Howisey.13 She argues that “[a]n employee is not required to use 

legal terms or buzzwords when opposing discrimination; opposition activity 

occurs if the employee’s comments, when read in their totality, oppose 

discrimination.” This is an accurate statement of the law. (Yanowitz, supra,

36 Cal.4th at p. 1047.) Nonetheless, an employee must say or do something

that alerts the employer she has a concern about discrimination. As our high 

court put it in Yanowitz, “complaints about personal grievances or vague or 

conclusory remarks that fail to put an employer on notice as to what conduct 

it should investigate will not suffice to establish protected conduct.” (Ibid.) 

“ ‘The relevant question . . . is . . . whether the employee’s communications to 

the employer sufficiently convey the employee’s reasonable concerns that the 

employer has acted or is acting in an unlawful discriminatory manner.’ ” (Id. 

at p. 1047, quoting Garcia-Paz v. Swift Textiles, Inc. (D. Kan. 1995) 

873 F.Supp. 547, 560.) 

On this record, a jury could not properly find that an employer in 

Chevron’s shoes reasonably could have been expected to understand, based 

on Colborn’s behavior and the circumstances, that she was opposing what she 

thought was age (or any other type of) discrimination against Reich. To be 

sure, Souza and Howisey could see that Colborn was reluctant to provide 

more feedback to Reich regarding his rating and to place him on a PIP, and

13 Colborn also states that after she returned from vacation and 

received Reich’s STEPS paperwork in which he mentioned possible 

discrimination, she “was concerned about [his] final rating and his belief that 

he was being discriminated against based on age.” (Italics added.) She does 

not state that she believed that was the case, and when asked whether she 

ever thought Reich’s rating was a “3” “because of his age and for no other 

reason,” she said she did not recall. When asked whether she ever expressed 

to anyone at Chevron “that you believed the real reason Mr. Reich was given 

a three instead of a two-minus was because of his age,” again she responded,

“I don’t recall.” 
27

they witnessed her unwillingness to discuss Reich’s rating with them in 

person. But without additional information, the question of why she did 

what she did was something about which they could only have speculated. 

Absent any explanation by Colborn of the reasons for her conduct, her 

superiors were presented with a riddle or a conundrum, not with a 

recognizable expression of concern about discrimination against Reich. (See 

Garcia-Paz v. Swift Textiles, Inc., supra, 873 F.Supp. at p. 560 [“employers 

need not approach every employee’s comment as a riddle, puzzling over the 

possibility that it contains a cloaked complaint of discrimination”]; quoted 

with approval in Yanowitz, supra, 36 Cal.4th at p. 1047.) Further, it was a 

puzzle they could not definitively solve because she would not talk with 

them.14

Colborn also contends that the temporal proximity between her

“protected activity” on March 9, 2011, and her termination on March 10,

2011, suffices to establish a causal link between the two. But, as we have

just indicated, nothing about her behavior on March 9 or before explicitly or

implicitly alerted Chevron that she was engaged in, as she puts it, a “subtle

and indirect means of opposing what she reasonably understood to be

Chevron’s discrimination directed at Mr. Reich.” 

For these reasons, Colborn has failed to rebut Chevron’s showing that

she cannot establish a causal link between her purportedly resisting

participating in age discrimination and her termination. Chevron was thus

entitled to summary judgment on this theory.

14 Indeed, Colborn’s superiors could have reasonably thought her 

conduct was due to several plausible reasons that reflected poorly on her, 

such as her possible anger about her own negative performance rating and 

concern about its impact on her future at Chevron; her desire to move to 

another position within Chevron; her insufficient feedback to Reich during 

the year leading up to the rating; and her stated willingness to let him fail.
28

2. Colborn’s 2011 EEOC Complaint Retaliation Theory

The second retaliation theory encompassed by Colborn’s FAC is that 

when Souza and Howisey were outside her office in the hallway after their 

dispute arose, she told them “they were retaliating and that [she] was going 

to contact the EEOC.” Chevron denies Colborn said anything about 

contacting the EEOC, but as the non-moving party, Colborn is entitled to 

have us accept her evidence as true for purposes of summary judgment. 

Colborn contends that filing or threatening to file a complaint with the 

EEOC was protected activity and that it was because she engaged in this 

activity that Chevron terminated her employment. To establish the requisite 

causal link, she points to the facts that she threatened to contact the EEOC 

on March 9, 2011, and was terminated the following day. This theory and the 

evidence supporting it are sufficient to meet Colborn’s required prima facie 

showing under the first prong of McDonnell Douglass, a causal link between 

protected activity and an adverse employment action. Therefore, we turn to 

whether Chevron met its burden under the second prong of McDonnell

Douglass of showing a legitimate reason for its adverse action, thereby 

shifting the burden back to Colborn to make a third prong showing.

a. Chevron Showed a Legitimate Reason for 

 Terminating Colborn’s Employment.

To rebut the presumption of retaliation that arises from Colborn’s 

prima facie showing on her 2011 EEOC complaint retaliation theory,

Chevron had the burden to produce evidence showing it acted, i.e., it 

terminated Colborn’s employment, for a legitimate, nonretaliatory reason. 

According to Chevron, “the sole basis for [Colborn’s] termination was her 

recalcitrant behavior in repeatedly refusing to meet with her supervisor (and 

[Human Resources]) to discuss an issue as common and important as a 

subordinate’s performance.”
29

We need not recount the evidence again in detail. Suffice it to say that 

it is undisputed that Colborn rebuffed in words and deeds repeated efforts on 

Souza’s and Howisey’s parts to meet in person with her on March 9, 2011. 

She said she would not meet with Souza without a written agenda, and she 

told them she had sent them what they needed, that they had everything 

they needed from her and that they could comment in writing. She intended 

to convey to them that she did not feel it was necessary to meet, and she 

failed to confirm she would meet them in her responses to the three emails 

they sent attempting to set up a meeting with her. She does not dispute that,

when they showed up outside her office, she kept them from entering and 

spoke to them only “in the hallway.” As the trial court aptly put it, “In this 

email exchange, [Colborn] did not use the words ‘I refuse to meet with you.’ 

But the exchange can only be interpreted as a stubborn and startlingly 

brazen refusal to meet, despite three unambiguous requests for a meeting 

from both [Colborn’s] supervisor and a senior member of the Human 

Resources Department.”15

We agree. Colborn made perfectly clear by her words and acts that she

was not willing to meet with Souza or Howisey. And she did so even though 

she understood Souza was insisting on meeting with her, Howisey instructed 

her that she had to meet with Souza, and Howisey warned her she would be 

insubordinate if she did not meet with them. Instead of complying with 

Souza’s and Howisey’s requests and directives, Colborn told Howisey “to 

document it, to write [her] up.” 

Further, as Souza described it in her declaration in support of 

Chevron’s summary judgment motion, she viewed Colborn’s conduct as a 

15 In her declaration, Souza described Howisey as a “Human Resources 

Business Partner.” 
30

manager as “completely inappropriate, unprofessional, and insubordinate. 

Even if Ms. Colborn was trying to avoid delivering a difficult message to 

Mr. Reich about his performance, it was her responsibility as his manager to 

do so and to help Mr. Reich understand how he could improve. And, if 

Ms. Colborn was unclear about feedback on Mr. Reich, she needed to talk 

with me or with others who were present during ranking sessions when 

Mr. Reich was ultimately rated a ‘3.’ It seemed that, as Ms. Colborn had told 

me earlier in 2010, she intended to ‘let him fail,’ which was unacceptable. [¶] 

Because of Ms. Colborn’s insubordination on a subject as critical as providing 

feedback to a direct report, I could no longer entrust her with the critical 

supervisory responsibilities of her position. I recommended that day that 

Ms. Colborn’s employment be terminated and the decision was supported by 

Human Resources. I genuinely felt that separation was the only logical and 

responsible consequence for Ms. Colborn’s insubordinate behavior.” Souza 

further stated in her declaration that “Ms. Colborn’s termination was based 

solely on her insubordinate and unacceptable behavior.” 

This evidence is more than sufficient to meet Chevron’s burden of 

showing a legitimate, nonretaliatory reason for the termination. (Faust v. 

California Portland Cement Co. (2007) 150 Cal.App.4th 864, 874, 875 

[evidence that plaintiff failed to communicate with defendant regarding 

requested medical leave and failed to respond to defendant’s requests for 

information about his condition and fitness to work was insubordination that 

constituted legitimate, non-retaliatory reason for terminating plaintiff’s 

employment].) As in Guz, Chevron’s explanation of its nondiscriminatory 

reason for terminating Colborn’s employment was “creditable on its face” and 

Colborn “has largely conceded the truth, if not the wisdom, of [Chevron’s] 

proffered reasons.” (See Guz, supra, 24 Cal.4th at p. 357.) 
31

“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, 36 Cal.4th at p. 1042.) We turn to whether Colborn has 

met this third prong burden on her 2011 EEOC complaint retaliation theory.

b. Colborn Did Not Meet Her Third Prong Burden.

In evaluating a third prong showing we determine whether the 

evidence in its entirety proves “by nonspeculative evidence, ‘an actual causal

link between prohibited motivation and termination.’ ” (Featherstone v. 

Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 

1159 (Featherstone), quoting King v. United Parcel Service, Inc. (2007) 

152 Cal.App.4th 426, 433-434.) As we have observed, “very little” direct 

evidence of an employer’s discriminatory motive is necessary, but 

“[c]ircumstantial evidence of ‘ “pretense” must be “specific” and “substantial”

in order to create a triable issue with respect to whether the employer 

intended to discriminate’ [or retaliate] on an improper basis.” (Morgan, 

supra, 88 Cal.App.4th at p. 69.) 

Also, as we will discuss, Colborn relies on certain remarks by Souza 

and Howisey. In that context, particularly pertinent is our Supreme Court’s 

directive that remarks of a discriminatory or retaliatory nature cannot be 

categorically excluded based on the court’s assessment of their relative 

strength or probative value viewed in isolation, but rather should be 

considered in combination with all the evidence set forth in the papers and 

all inferences that reasonably can be deduced from that evidence. (Reid v. 

Google, Inc. (2010) 50 Cal.4th 512, 538-545.) Thus, we consider the relevance 

of any such remarks in the context of the entire record. 
32

Colborn’s briefs are not particularly helpful in identifying the evidence 

she relied on for her 2011 EEOC complaint retaliation theory because she 

relied on the following to show retaliatory motive without assigning any of 

these facts to one or the other of her different theories: Souza’s “remarks in 

meetings in which [Colborn] was present” “[s]tarting around November 2009” 

“about employees filing with the EEOC” without “mention[ing] any names”; 

Howisey’s statements to Colborn that her comments on Reich’s STEPS 

document were “sad” and that she was “being insubordinate”; a “remark” 

made by Souza “[a]t the beginning of 2010” “about employees nearing 

retirement”; and a “remark” made by Howisey “[a]t some point in 2011 before 

March 9,” “about Mr. Reich not keeping up with his peers and that Mr. Reich 

should retire or leave.”

Of these four remarks, the first is the only one has anything to do with 

her theory that Chevron retaliated because she said on March 9, 2011, that 

she had filed or would file a claim with the EEOC.16 And as we see it, the

other evidence that pertains to her 2011 EEOC complaint retaliation theory 

is that, at the end of the March 9, 2011 interchange between Colborn and her 

superiors, after she was told that refusing to meet was insubordinate, she 

accused them of engaging in “retaliation” and threatened to file a complaint 

with the EEOC. The temporal proximity between her statements about the 

EEOC and her termination the very next day, she contends, supports a 

finding that she was terminated because of her statements about filing an 

EEOC claim. This, we have already held, suffices as a prima facie showing, 

but the inquiry now is whether, in light of Chevron’s effective rebuttal, the

evidence as a whole, including the remarks Colborn attributes to Souza, 

16 The other three are pertinent, if at all, to her age discrimination

retaliation theory, for which we have concluded she cannot make out a prima 

facie case. 
33

raises a triable issue as to the retaliatory motive Colborn asserts. It is at 

best extremely weak evidence that Chevron fired her because of her 

statement that she had filed or would file an EEOC complaint. Again, all 

Colborn’s declaration says is that Souza made unspecified “remarks in 

meetings in which [Colborn] was present” “[s]tarting around November 2009” 

“about employees filing with the EEOC” without “mention[ing] any names.” 

She does not state what the remarks were or even whether they reflected 

negatively on people who file such complaints. The comments were not 

directed to Colborn or anyone else in particular, and Colborn provides no 

context at all for the comments. The only time frame she gives for the 

comments is that they were first made in November 2009, long before her 

March 2011 termination. In short, there no evidence that the unspecified 

remarks were negative or that they had anything to do with Colborn, and 

there is no showing any such remarks were made close in time to Colborn’s 

termination.

Even without considering Chevron’s evidence of its nonretaliatory basis 

for firing her, these comments provide no reasonable basis for inferring 

animus on Souza’s part toward Colborn or any other employee who had filed 

or might in the future file a claim with the EEOC. The fact that Colborn told 

Souza and Howisey she had filed or would file an EEOC complaint on 

March 9, 2011—at the end of a day on which she had repeatedly rebuffed 

their requests to meet with her after she had deliberately declined to follow 

their directives regarding Reich’s performance review and PIP, after they told 

her that a continued failure to meet would be considered insubordinate, and 

after she told them “just to write [her] up”—itself is weak evidence of a 

retaliatory motive. The addition of the earlier unspecified “remarks” about 

unidentified employees having filed EEOC claims does not transmute 
34

Colborn’s already weak showing into a triable issue of retaliatory motive. 

(See Morgan, supra, 88 Cal.App.4th at p. 69 [circumstantial evidence of 

pretense must be specific and substantial to create triable issue of prohibited 

motive].)

In Guz, the court held that where the employee’s “evidence raise[s], at 

best, only a weak suspicion that discrimination was a likely basis for his 

release” and the employer “has presented a plausible, and largely 

uncontradicted, explanation” of its nondiscriminatory reason for the 

termination, the employee has failed as a matter of law to raise a triable 

issue of pretext and the employer is entitled to summary judgment. (Guz, 

supra, 24 Cal.4th at pp. 369-370.) That is precisely the situation here. 

C. Colborn’s Claim for Failure to Prevent Retaliation

Colborn’s second cause of action, under Government Code section 12940, 

subdivision (k), alleges Chevron failed to take reasonable steps to prevent the 

alleged discrimination and retaliation against Colborn. A plaintiff cannot

prevail on a claim for failure to prevent retaliation unless the plaintiff first 

establishes that retaliation occurred. (M.F. v. Pacific Pearl Hotel

Management LLC (2017) 16 Cal.App.5th 693, 701; Featherstone, supra,

10 Cal.App.5th at p. 1166; Trujillo v. North County Transit Dist. (1998)

63 Cal.App.4th 280, 288-289.) Having affirmed the grant of summary 

judgment to Chevron on Colborn’s underlying retaliation claim, we must also 

affirm summary judgment on her claim for failure to prevent retaliation.

DISPOSITION

The judgment is affirmed. Chevron shall recover its costs.
35

STEWART, J.

We concur.

KLINE, P.J.

MILLER, J.

Colborn v. Chevron USA, Inc. (A159040)