Filed 6/21/17

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

JOSEPH HUSMAN,

Plaintiff and Appellant,

v.

TOYOTA MOTOR CREDIT 

CORPORATION,

Defendant and Respondent.

 B268300

 (Los Angeles County

 Super. Ct. No. BC523358)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Holly E. Kendig, Judge. Reversed and 

remanded.

Barrera & Associates and Patricio T.D. Barrera for Plaintiff 

and Appellant.

Paul Hastings, James A. Zapp, Paul W. Cane, Jr. and 

Felicia A. Davis, for Defendant and Respondent.

________________________
2

Joseph Husman, a 14-year employee of various Toyota 

divisions at its Torrance campus in southern California, ran the 

diversity and inclusion program for Toyota Financial Services 

U.S.A., the brand name for Toyota Motor Credit Corporation (TFS 

or Toyota). Following his termination in 2011, Husman sued 

Toyota for discrimination and retaliation in violation of the Fair 

Employment and Housing Act (FEHA) (Gov. Code, § 12900

et seq.),1 as well as for wrongful discharge, alleging he had been 

fired from his executive-level management position because of his 

sexual orientation and criticisms he made concerning Toyota’s 

commitment to diversity. The trial granted Toyota’s motion for 

summary judgment and entered judgment in its favor. Because 

Husman presented sufficient evidence a substantial motivating 

factor for his termination was invidious sex or gender stereotyping

related to his sexual orientation—the perception he was “too 

gay”—we reverse the judgment. However, Husman failed to raise 

a triable issue of material fact to support his FEHA retaliation 

and related common law tort claim. Accordingly, on remand the 

trial court is to enter an order granting Toyota’s alternative 

motion for summary adjudication as to those two causes of action.

FACTUAL AND PROCEDURAL BACKGROUND

1. Husman’s Advancement at Toyota

Husman was hired by Toyota in April 1997 and, except for a 

brief period in 2000, worked in various management-level 

positions in Toyota’s marketing, sales and financial services 

divisions until his 2011 termination. In 2007 George Borst, the 

chief executive officer of TFS, decided to create a new 

 

1 Statutory references are to this code unless otherwise 

stated.
3

management position to enhance Toyota’s diversity outreach 

under the supervision of Julia Wada, TFS’s vice president for 

human resources, who was then Husman’s supervisor. When 

Wada’s initial efforts to identify a candidate were unsuccessful, 

Borst suggested she consider Husman, whom he knew and liked.2 

Borst and Wada knew Husman was gay and had, as Borst put it, 

“a passion for diversity.” Borst harbored some concern about 

Husman’s reputation for gossiping, but Wada assured Borst she 

could manage him. Shortly thereafter, Wada selected Husman as

TFS’s first national manager for diversity and inclusion. He

continued to report to Wada.

By all accounts Husman excelled at important components 

of his job. He successfully implemented a diversity training

program for TFS. During his tenure Toyota was recognized as one 

of the top 50 companies for diversity by Diversity, Inc. and, 

beginning in 2009, received a perfect score on the Human Rights 

Campaign’s corporate equality index gauging corporate support of 

lesbian, gay, bisexual and transgender (LGBT) rights.

3 Toyota 

also sponsored many national- and community-based

 

2 In 2001 Borst married another Toyota employee who was a 

colleague and friend of Husman. Husman socialized occasionally 

with Borst and his wife and attended their wedding in Italy. 

3 Borst had a history of supporting LGBT rights. He had 

attended several LGBT events with Husman and successfully 

pushed TFS to provide medical benefits to same-sex domestic 

partners before California adopted legislation requiring such 

coverage in 2004. (See Stats. 2004, ch. 488, § 4, pp. 4008-4009, 

amending Ins. Code, § 10121.7.) He also successfully advocated 

for the Toyota companies to extend medical benefits to cover 

gender-reassignment surgery in 2010.
4

philanthropic events, including AIDS Walk LA. Husman’s

performance was rated as “very good” on annual performance 

reviews (4 on a scale of 1 to 5), and he received significant annual 

bonuses. In March 2010 the TFS management committee 

rewarded him with an “Extraordinary Performance Award,” in 

recognition of what Borst described as “put[ting] D[iversity] and 

I[nclusion] on the map at TFS.” In thanking Borst, Wada and

David Pelliccioni, TFS’s chief administrative officer and senior 

vice president of sales, marketing and operations, for the award, 

Husman also thanked them “for all you have each done to 

personally support my efforts at TFS . . . .” 

Notwithstanding Husman’s impressive employment

reviews, Wada believed his internal performance could be 

improved and counseled him to develop stronger relationships 

with executive leaders to demonstrate the value of his programs 

and secure their continued support. She also counseled him on 

two occasions about leadership role modeling: once, after another 

manager heard him make disparaging comments about a Toyota 

executive, and again after he told a self-deprecating joke that 

made another employee feel uncomfortable. 

2. Husman’s Promotion to an Executive-level Position

These complaints did not impede Husman’s career 

advancement. In August 2010 he was promoted to an executivelevel position as the corporate manager of corporate social 

responsibility, again with Borst’s backing. His duties 

encompassed TFS’s efforts in the areas of diversity and inclusion, 

as well as corporate philanthropy. In his new capacity he 

reported to Ann Bybee, TFS’s vice president for corporate 

strategy, communications and community relations. Bybee, in 

turn, reported to Pelliccioni. Like Wada and Borst, Bybee and 
5

Pelliccioni had known Husman for more than a decade and knew 

he identified as gay. Bybee considered him a friend and had no 

reservations about his promotion. Pelliccioni later stated he had

doubts about Husman’s promotion but did not express them at the 

time in light of Borst’s support. 

In early 2011 Bybee began to have concerns about Husman’s 

frequent absences from the office and lax management of his 

team. She counseled him to adjust his schedule to allow more 

time in the office. Soon thereafter, Bybee learned from Tess 

Elconin, a human resources manager, of several complaints 

stemming from inappropriate comments Husman had allegedly 

made to his coworkers. After a three-week investigation Bybee 

and Elconin concluded, having corroborated the allegations with 

at least two sources, that Husman told an applicant for a posted 

job who had just returned from pregnancy leave that she was “on 

the mommy track”; instructed his team not to use sports analogies 

when explaining concepts to women because they would respond 

better to cooking or gardening analogies; declared the area near 

his office to be a “Republican Free Zone”; told another woman who 

recently had a baby that her life was now over; commented on the 

physical attributes of other employees, referring to them as “short 

and stocky,” “always having plates of food,” “too skinny” and 

“wasting away”; and disparaged executives as “pleated pants.”4 

In April 2011 Bybee and Elconin advised Husman of the 

results of the investigation and told him he would receive a 

written warning, certain reduced performance ratings and, 

 

4 Husman denied making some of these comments and 

admitted making others, but said they had been taken out of 

context or were not offensive. 
6

consequently, a slightly lower bonus. Because Husman was out of 

the office the rest of the month, he was not presented with the 

warning until May 2011. Upset, he refused to sign the warning 

letter and attempted to negotiate its wording, which had already 

been reviewed by Borst and Pelliccioni.5 Bybee made some minor 

edits to the letter, but Husman still refused to sign. 

After receiving the warning Husman became increasingly 

uncooperative with Bybee, who requested that Pelliccioni 

intervene. When Pelliccioni asked to meet with Husman in June 

2011, Husman initially declined the meeting. Pelliccioni told him 

the meeting was not optional. Husman finally met with Bybee 

and Pelliccioni on June 23, 2011. During the meeting Pelliccioni 

 

5 Bybee’s letter stated, “With your promotion to Corporate 

Manager, and your previous role as National Manager, Diversity 

and Inclusion, my expectation was that you would be the role 

model for inclusive behavior. I recently became aware of conduct 

that did not meet that expectation. As we discussed, you made 

multiple comments that offended your co-workers and displayed 

insensitivity to the unique qualities that everyone brings to the 

table. My concerns were compounded by your initial inability to 

grasp the seriousness of the concerns or to take responsibility for 

your conduct. [¶] . . . [¶] As a Corporate Manager, you are 

expected to exercise sound judgment and demonstrate leadership 

at all times, and as the leader of our Diversity and Inclusion 

efforts, you are expected to bring associates together in a 

collaborative manner and use inclusive efforts to challenge us and 

lead us. After having discussed our expectations for leaders and 

the significance of your behavior in this matter, I am confident 

that you understand the importance of creating a welcoming 

environment and appreciating what everyone brings to the table. 

I’m equally confident that you understand that the non-inclusive 

conduct we’ve discussed will not be repeated.” 
7

informed Husman the company wanted him to succeed and 

offered to hire an executive coach to assist him in meeting their 

expectations, a strategy Toyota had successfully utilized in the 

past. In a private meeting with Pelliccioni later that day, 

Husman expressed his frustration and anger with the disciplinary 

measures, which he felt were unfair. At some point in these 

meetings Husman told Pelliccioni he felt Toyota was not 

supporting the diversity and inclusion program and did not grasp 

what Husman was trying to do. 

Although Borst and Pelliccioni later stated they had no 

thoughts of terminating Husman in June 2011, an episode at a 

diversity awards dinner earlier that month had further alienated 

Husman. In the fall of 2010 Husman had submitted an 

application nominating Borst for a corporate leadership award 

from Diversity Best Practices, Inc. Borst was selected as a 

recipient of the award, which was conferred at a dinner in 

New York in early June 2011. In what he later characterized as a 

joke, Borst said in accepting the award that his goal was to fire 

Husman. He explained that in the future he hoped a diversity 

and inclusion program would no longer be necessary at Toyota. 

Husman believed Borst was mocking him and did not truly care 

about the issue of diversity. 

Husman’s frustration also stemmed from his belief other 

Toyota executives, including Borst and Pelliccioni, had not been 

disciplined for comments about employees far worse than those for 

which he had been disciplined. Pelliccioni had also made 

comments Husman perceived as anti-gay, observing that Husman 

made “a very clear statement” about his sexual orientation and 
8

should cut his hair and ridiculing him for wearing a scarf as an 

accessory when it was not cold outside. Husman complained 

about these comments to Wada and Bybee; but they declined to 

correct Pelliccioni, who was their boss.

Husman also believed Pelliccioni paid only lip service to 

Toyota’s sponsorship of events like AIDS Walk LA but did not 

participate in a meaningful way. When Husman asked Pelliccioni 

to include AIDS Walk LA on the list of organizations eligible for 

automatic payroll deductions, Pelliccioni refused on the ground

the list was restricted to national organizations. Pelliccioni was 

aware Husman complained about this decision to Vincent Bray, 

another executive involved in approving the list. In August 2011 

Husman also expressed his frustration with what he perceived as 

Toyota’s lack of progress in supporting its LGBT employees to the 

company’s Diversity Advisory Board, which was comprised of 

prominent national figures. Asked by one board member about 

the state of affairs for Toyota’s LGBT employees, Husman 

answered that Toyota had made some progress but had a long way 

to go, a statement he believed caused Borst to treat him coldly.

Bybee in turn became increasingly frustrated with what she 

perceived as Husman’s insubordination and his lack of progress 

on assigned tasks.6 During the summer he failed to implement 

 

6 Bybee had earlier asked Husman to prepare a three-year 

roadmap for diversity and inclusion goals. As part of that request 

Bybee asked Husman to evaluate the outside relationships he 

should develop and, based on that evaluation, winnow the number 

of conferences he attended to reduce his travel. Husman resisted 

producing the plan and eventually gave Bybee a list of conferences 

she felt had been thrown together without much thought. In 

another instance, an executive training program scheduled for 

June 2011 had to be postponed because Husman and his staff 
9

Pelliccioni’s offer of an executive coach. He continued to be 

frequently absent from the office and avoided meetings with 

Bybee. When she asked him to spend more time in the office with 

his staff and key executives, he told her she was lucky he came 

into the office at all because of the negative atmosphere. He also 

referred to her as “low context,” a term Bybee believed he used in 

a derogatory manner. When she scheduled a team-building 

exercise intended to help him strengthen his relationships with 

his peers, he emailed his response as “tentative,” even though she 

had checked his calendar and knew he was free on the scheduled 

date. 

3. Husman’s Termination

In mid-September 2011 Husman failed to attend two oneon-one meetings with Bybee and resisted attending an executive 

conference scheduled for September 19, 2011. On September 15, 

2011 the executive group (including Husman) received scores from 

a cultural literacy test administered by a consultant. Husman 

received the highest score and, referring to the March 2011 

investigation, told Bybee he was angry that others who had scored 

lower had been judging him. Bybee believed this statement 

revealed Husman had “taken no step forward” after the multiple 

efforts to assist him. When Borst dropped by her office later that 

day, she told him she was “at wit’s end” and no longer wanted to 

 

failed to prepare the necessary materials. Even with an extra 

month for preparation, the materials were not timely delivered;

and Borst, who was scheduled to deliver the opening remarks, did 

not receive them until shortly before the opening session. 
10

work with Husman. Later that day, Pelliccioni called her and 

said, “We’re done with Joe.”7

Describing the same events, Borst stated he too had been

disturbed by Husman’s behavior following the warning letter and

viewed Husman’s comment to Bybee criticizing those who had 

scored lower on the cultural literacy test as “the straw that broke 

the camel’s back.” Borst testified he made the decision to 

terminate Husman after he left Bybee’s office and called 

Pelliccioni from his car to tell him of his decision. He instructed 

Pelliccioni to provide a generous separation package to allow 

Husman to leave with dignity. Pelliccioni then called Bybee to 

pass along those instructions. Pelliccioni told the consultant 

investigating the termination he did not initiate Husman’s 

termination but was involved in numerous discussions with 

Bybee, Borst, Wada and members of the legal team about it. 

According to Pelliccioni, everyone supported the decision.

Bybee delivered the message in a telephone call to Husman 

on the following Sunday, September 18, 2011. Bybee and Husman 

agree she told Husman he was being terminated for “excluding 

the majority.” Husman claims she also told him he was focusing 

too much on LGBT issues, a comment he understood as a reaction 

 

7 As reported by the consultant who investigated Husman’s 

termination, Bybee told a slightly different version of these 

events. She had kept Borst informed about her difficulties 

managing Husman; and, months earlier, he had suggested she 

consider a separation package for Husman. Now, he told her to 

talk with in-house legal counsel, a response she understood as an 

endorsement of Husman’s termination. Bybee then informed 

Pelliccioni of her decision, who told her she should not “backtrack” on it. 
11

to his complaint about Pelliccioni’s refusal to add AIDS Walk LA 

to the list of payroll deductions available for charitable gifts by 

employees and his statement to the Diversity Advisory Board 

pointing out Toyota’s inadequate progress in addressing the issues 

of LGBT employees. Bybee explained she meant that Husman’s 

job required him “to raise awareness of diversity and inclusion 

issues within the company” and obtain support, or buy-in, 

throughout the company for those issues. 

According to Husman, Bybee also told him she was 

terminating him at the request of Pelliccioni, “who had it out for 

him,” and suggested he ask Borst for reconsideration of the 

decision. Husman texted Borst that evening, apologized for 

disappointing him, and asked whether the decision could be 

turned into a “wakeup call” to better his performance. When 

Borst confirmed the decision, Husman thanked him for all he had 

done for him over the years and asked if Borst would provide 

career advice once the dust had settled. 

In a conference call the next day, Elconin, Bybee and 

general counsel Katherine Adkins proposed a severance 

agreement allowing Husman to remain on paid administrative 

leave until November 2, 2011 while the parties negotiated other 

terms of the agreement. Husman never returned to work, and his 

duties were assigned to two people: Mark Simmons, who is not 

gay, was assigned Husman’s corporate philanthropy duties; his 

diversity and inclusion responsibilities were assigned to Stephen 

Lewis, a gay man. 

4. Husman Alleges He Was Terminated Because of His 

Sexual Orientation

On September 23, 2011 Husman’s lawyer informed Toyota 

by email that his client had been subjected to sexual orientation 
12

discrimination. After an unsuccessful mediation, Husman also 

alleged Toyota had retaliated against him.8 

Husman sued Toyota on October 3, 2013 alleging sexual 

orientation discrimination and retaliation under FEHA. He also 

alleged two common law claims for wrongful termination in 

violation of public policy paralleling the FEHA claims. Toyota 

moved for summary judgment on January 8, 2015. At the hearing 

on March 25, 2015 the court issued a tentative ruling that 

Husman had raised a triable issue of material fact precluding 

summary judgment. After a lengthy argument and supplemental 

briefing, the court issued a final decision granting the motion. 

Judgment was entered against Husman on October 5, 2015, 

following an unsuccessful motion for reconsideration. 

DISCUSSION

1. Standard of Review

A motion for summary judgment or summary adjudication 

is properly granted only when “all the papers submitted show that 

there is no triable issue as to any material fact and that the 

moving party is entitled to a judgment as a matter of law.” (Code 

Civ. Proc., § 437c, subd. (c).) We review a grant of summary 

judgment or summary adjudication de novo and decide 

independently whether the facts not subject to triable dispute 

warrant judgment for the moving party or a determination a 

cause of action has no merit as a matter of law. (Hartford 

 

8 Toyota commenced an internal investigation into Husman’s 

charges and invited him to be interviewed. He declined. The 

investigation was conducted by a third party who ultimately 

concluded Husman had been terminated for nondiscriminatory 

reasons related to his performance. 
13

Casualty Ins. Co. v. Swift Distribution, Inc. (2014) 59 Cal.4th 277, 

286; Schachter v. Citigroup, Inc. (2009) 47 Cal.4th 610, 618; Soria 

v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 582

(Soria).) The evidence must be viewed in the light most favorable 

to the nonmoving party. (Ennabe v. Manosa (2014) 58 Cal.4th 

697, 703; Schachter, at p. 618.)

When a defendant moves for summary judgment in a 

situation in which the plaintiff would have the burden of proof at 

trial by a preponderance of the evidence, the defendant may, but 

need not, present evidence that conclusively negates an element 

of the plaintiff’s cause of action. Alternatively, the defendant may 

present evidence to “‘show[] that one or more elements of the 

cause of action . . . cannot be established’ by the plaintiff.” 

(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853; see 

Code Civ. Proc., § 437c, subd. (p)(2).) “‘“‘The moving party bears 

the burden of showing the court that the plaintiff “has not 

established, and cannot reasonably expect to establish,”’ the 

elements of his or her cause of action.”’” (Ennabe v. Manosa, 

supra, 58 Cal.4th at p. 705; accord, Wilson v. 21st Century Ins. Co. 

(2007) 42 Cal.4th 713, 720; Soria, supra, 5 Cal.App.5th at p. 582.)

Once the defendant’s initial burden has been met, the 

burden shifts to the plaintiff to demonstrate, by reference to 

specific facts, not just allegations in the pleadings, there is a 

triable issue of material fact as to the cause of action. (Code Civ. 

Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co., supra,

25 Cal.4th at p. 850.) On appeal from an order granting summary 

judgment, “a reviewing court must examine the evidence de novo 

and should draw reasonable inferences in favor of the nonmoving 

party.” (Miller v. Department of Corrections (2005) 36 Cal.4th 

446, 470; accord, Aguilar, at p. 843.) “[S]ummary judgment 
14

cannot be granted when the facts are susceptible to more than one 

reasonable inference . . . .” (Rosas v. BASF Corp. (2015) 

236 Cal.App.4th 1378, 1392; accord, Soria, supra, 5 Cal.App.5th at 

p. 582.)

2. Analyzing Discrimination Claims Under FEHA

FEHA prohibits an employer from, among other things, 

discharging a person from employment because of his or her 

gender, gender identity, gender expression or sexual orientation. 

(§ 12940, subd. (a).) The express purposes of FEHA are “to provide 

effective remedies that will both prevent and deter unlawful 

employment practices and redress the adverse effects of those 

practices on aggrieved persons.” (§ 12920.5.) The Legislature 

accordingly has mandated that the provisions of the statute “shall 

be construed liberally” to accomplish its purposes. (§ 12993, 

subd. (a).) As the Supreme Court has recognized, “[b]ecause the 

FEHA is remedial legislation, which declares ‘[t]he opportunity to 

seek, obtain and hold employment without discrimination’ to be a 

civil right [citation], and expresses a legislative policy that it is 

necessary to protect and safeguard that right [citation], the court 

must construe the FEHA broadly, not . . . restrictively.” (Robinson 

v. Fair Employment & Housing Com. (1992) 2 Cal.4th 226, 243; 

accord, Soria, supra, 5 Cal.App.5th at p. 583.)

a. The McDonnell Douglas burden-shifting test

In analyzing claims of discrimination under FEHA, 

California courts have long used the three-stage burden-shifting 

approach established by the United States Supreme Court in 

McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 [93 S.Ct. 

1817, 36 L.Ed.2d 668] (McDonnell Douglas) for the analysis of 

title VII (42 U.S.C. § 2000e et seq.) employment discrimination 
15

claims. (See Reid v. Google, Inc. (2010) 50 Cal.4th 512, 520, fn. 2

(Reid); Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 

[“[b]ecause of the similarity between state and federal 

employment discrimination laws, California courts look to 

pertinent federal precedent when applying our own statutes”].)

The McDonnell Douglas test “reflects the principle that direct 

evidence of intentional discrimination is rare, and that such 

claims must usually be proved circumstantially. Thus, by 

successive steps of increasingly narrow focus, the test allows 

discrimination to be inferred from facts that create a reasonable 

likelihood of bias and are not satisfactorily explained.” (Guz, at 

p. 354; accord, Serri v. Santa Clara University (2014) 

226 Cal.App.4th 830, 860.) 

Under the McDonnell Douglas test a plaintiff may establish 

a prima facie case for unlawful discrimination by providing

evidence that “(1) he [or she] was a member of a protected class,

(2) he [or she] was qualified for the position he [or she] sought or 

was performing competently in the position he [or she] held, (3) he 

[or she] suffered an adverse employment action, such as 

termination, demotion, or denial of an available job, and (4) some 

circumstance suggests discriminatory motive.” (Guz, supra, 

24 Cal.4th at p. 355; Soria, supra, 5 Cal.App.5th at pp. 583-584.)

“Once the employee satisfies this burden, there is a presumption 

of discrimination, and the burden then shifts to the employer to 

show that its action was motivated by legitimate, 

nondiscriminatory reasons. [Citation.] A reason is ‘“legitimate”’ 

if it is ‘facially unrelated to prohibited bias, and which if true, 

would thus preclude a finding of discrimination.’ [Citation.] If the 

employer meets this burden, the employee then must show that 

the employer’s reasons are pretexts for discrimination, or produce 
16

other evidence of intentional discrimination.” (Reid, supra,

50 Cal.4th at p. 520, fn. 2, italics omitted.) 

In the context of summary judgment an employer may 

satisfy its initial burden of proving a cause of action has no merit 

by showing either that one or more elements of the prima facie 

case “is lacking, or that the adverse employment action was based 

on legitimate nondiscriminatory factors.” (Cucuzza v. City of 

Santa Clara (2002) 104 Cal.App.4th 1031, 1038; see Guz v. Bechtel 

National, Inc., supra, 24 Cal.4th at pp. 356-357; Sada v. Robert F. 

Kennedy Medical Center (1997) 56 Cal.App.4th 138, 150.) “[A]n 

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, at p. 361; see 

also Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th 1088, 1097-

1098 [if a defendant employer’s motion for summary judgment 

“relies in whole or in part on a showing of nondiscriminatory 

reasons for the [adverse employment action], the employer 

satisfies its burden as moving party if it presents evidence of such 

nondiscriminatory reasons that would permit a trier of fact to 

find, more likely than not, that they were the basis for the 

[adverse action]. [Citations.] To defeat the motion, the employee 

then must adduce or point to evidence raising a triable issue, that 

would permit a trier of fact to find by a preponderance that 

intentional discrimination occurred”].) “‘Circumstantial evidence 

of “‘pretense’ must be ‘specific’ and ‘substantial’ in order to create 

a triable issue with respect to whether the employer intended to 

discriminate” on an improper basis.’” (Batarse v. Service 

Employees Internat. Union, Local 1000 (2012) 209 Cal.App.4th 

820, 834.)
17

b. Mixed-motive analysis under Harris v. City of 

Santa Monica

In some cases there is no single reason for an employer’s 

adverse action, and a discriminatory motive may have influenced

otherwise legitimate reasons for the employment decision. In 

Harris v. City of Santa Monica (2013) 56 Cal.4th 203 (Harris) the

California Supreme Court recognized the traditional McDonnell 

Douglas burden-shifting test was intended for use in cases 

presenting a single motive for the adverse action, that is, in “cases 

that do not involve mixed motives.” (Id. at p. 214.) As the Court 

explained, this “framework . . . presupposes that the employer has 

a single reason for taking an adverse action against the employee 

and that the reason is either discriminatory or legitimate. By 

hinging liability on whether the employer’s proffered reason for 

taking the action is genuine or pretextual, the McDonnell Douglas

inquiry aims to ferret out the ‘true’ reason for the employer’s 

action. In a mixed-motives case, however, there is no single ‘true’ 

reason for the employer’s action.” (Id. at p. 215.) 

To resolve the proper legal analysis in a mixed-motive case

under FEHA, the Court invoked the United States Supreme 

Court’s decision in Price Waterhouse v. Hopkins (1989) 490 U.S. 

228 [109 S.Ct. 1775, 104 L.Ed.2d 268] (Price Waterhouse) and 

subsequent amendments to title VII, as well as the legislative 

intent behind FEHA’s use of the language “because of.” In Price 

Waterhouse the female plaintiff, a senior manager at an 

accounting firm, was described as “macho” and “masculine” and 

informed that “to improve her chances for partnership, . . . [she] 

should ‘walk more femininely, talk more femininely, dress more 

femininely, wear make-up, have her hair styled, and wear 

jewelry.’” (Price Waterhouse, at pp. 231-232, 235). After her office 
18

declined to nominate her for partnership, she sued under title VII 

alleging sex discrimination. (Price Waterhouse, at pp. 231-233.) 

Six members of the Supreme Court held that an adverse

employment action rooted in “sex stereotyping” or “gender 

stereotyping” was actionable sex discrimination even though the 

defendant purported to offer a legitimate reason—Hopkins’s poor 

interpersonal skills—for the adverse action. (Id. at pp. 250-252 

(plurality); see also id. at p. 258 (White, J., concurring); id. at 

pp. 272-273 (O’Connor, J., concurring).) As Justice Liu 

summarized for the California Supreme Court in Harris, “[t]he 

principal debate in Price Waterhouse concerned the ‘allocation of 

the burden of persuasion on the issue of causation.’ [Citation.] 

The high court rejected the view that a title VII plaintiff has the 

burden of proving ‘but for’ causation. Instead, the court held that 

once the plaintiff shows that discrimination was a motivating 

factor, the burden shifts to the defendant to negate ‘but for’

causation by proving that it would have made the same decision 

at the time even without the discrimination.” (Harris, supra, 

56 Cal.4th at p. 219.) “Under Price Waterhouse, such a showing

by the employer is a complete defense to liability.” (Ibid.)

9

 

9 Justice O’Connor, concurring in the result in Price 

Waterhouse, insisted a plaintiff should be required to establish a 

discriminatory motive through direct, rather than circumstantial, 

evidence. The Supreme Court rejected that position in Desert 

Palace, Inc. v. Costa (2003) 539 U.S. 90, 99-100 [123 S.Ct. 2148, 

156 L.Ed.2d 84].) The California Supreme Court agreed in Harris: 

“[T]he law generally makes no distinction between circumstantial 

and direct evidence absent some affirmative indication in a 

statute and that both types of evidence can be persuasive in 

discrimination cases.” (Harris, supra, 56 Cal.4th at p. 232.)
19

Two years after the decision in Price Waterhouse, Congress 

confirmed the Supreme Court’s interpretation of title VII by 

amending the law to provide that “an unlawful employment 

practice was established when the complaining party 

demonstrates that race, color, religion, sex, or national origin was 

a motivating factor for an employment practice, even though other 

factors also motivated the practice.” (42 U.S.C. § 2000e-2(m); see 

Harris, supra, 56 Cal.4th at p. 219.) Congress rejected, however, 

the Supreme Court’s holding an employer’s same-decision showing 

would constitute a complete defense to liability: “[W]hen an 

individual ‘proves a violation’ of Title VII and the employer shows 

it ‘would have taken the same action in the absence of the 

impermissible motivating factor,’ a court can “grant declaratory 

relief, injunctive relief . . . , and attorney’s fees and costs’ directly 

attributable to the Title VII claim but ‘shall not award damages or 

issue an order requiring any admission, reinstatement, hiring, 

promotion, or payment. . . .’” (Harris, at p. 220, quoting 42 U.S.C. 

§ 2000e-5(g)(2)(B).)

After summarizing Price Waterhouse and the congressional 

response to it, the Harris Court turned to the issue of causation 

under FEHA. The Court analyzed legislative intent for the term 

“because of” (and its corollary “but for”) and concluded the 

Legislature intended California workplaces to be free from 

prohibited discrimination even if the employer acted in part with 

a legitimate purpose for the adverse action. (Harris, supra, 

56 Cal.4th at pp. 223-224.) Considering whether a plaintiff should 

be entitled to any relief when the employer demonstrates it would 

have made the same decision in any event, the Court observed the 

Fair Employment and Housing Commission had interpreted

section 12940, subdivision (a), to impose liability “when ‘a 
20

preponderance of all the evidence demonstrates that the adverse 

employment action was caused at least in part by a discriminatory 

motive’” and not to absolve an employer of complete liability when 

it demonstrated it would have reached the same decision absent 

the discriminatory motive. (Harris, at pp. 224-225.) 

In light of the not infrequent occurrence of mixed motives in 

discrimination cases, particularly as exemplified by Price 

Waterhouse, and FEHA’s goal of eradicating discrimination from 

the workplace, the Court concluded an employer’s same-decision 

showing should not be a complete defense to liability:10 “[T]o say 

that discrimination was not the ‘but for’ cause of an employment 

decision is not to say that discrimination played an insignificant 

role or that it necessarily played a lesser role than other, 

nondiscriminatory factors. . . . [I]t is important to recognize that 

discrimination can be serious, consequential, and even by itself 

determinative of an employment decision without also being a ‘but 

for’ cause. [¶] We believe that allowing a same-decision showing 

to immunize the employer from liability in circumstances like 

those facing Ann Hopkins . . . would tend to defeat the purposes of 

the FEHA. Whether or not an employee in [her] respective 

position[] would have been promoted in any event, the existence of 

 

10 Harris held, if a plaintiff has shown by a preponderance of 

the evidence that discrimination was a substantial factor 

motivating his or her termination and the employer then 

demonstrates that legitimate, nondiscriminatory reasons would 

have led it to the make the same decision at the time, “then the 

plaintiff cannot be awarded damages, backpay, or an order of 

reinstatement. However, where appropriate, the plaintiff may be 

entitled to declaratory or injunctive relief. The plaintiff also may 

be eligible for an award of reasonable attorney’s fees and 

costs . . . .” (Harris, supra, 56 Cal.4th at p. 241.)
21

facts from which a jury could find that improper bias was a 

substantial factor motivating the employer’s decision is sufficient 

to establish discriminatory conduct that ‘foments domestic strife 

and unrest, deprives the state of the fullest utilization of its 

capacities for development and advancement, and substantially 

and adversely affects the interests of employees, employers, and 

the public in general.’ (§ 12920.) Such discrimination, even if not 

a ‘but for’ cause of the disputed employment action, would breed 

discord and resentment in the workplace if allowed to be 

committed with impunity.” (Harris, supra, 56 Cal.4th at pp. 229-

230.)11 

While Harris concerned an appeal from a jury verdict in 

favor of a city bus driver who had claimed she was fired because of 

 

11 Underlying Harris is a concern for what has been called 

second generation discrimination, that is, discrimination against 

individuals based on invidious stereotypes about the particular 

group to which they belong or structural biases that motivate

employers’ decisions independently of their conscious judgment 

that discrimination against those groups is inappropriate. (See 

Sturm, Second Generation Employment Discrimination: A 

Structural Approach (2001) 101 Colum. L.Rev. 458; Harris, supra, 

56 Cal.4th at p. 230 [“[a] company’s practice of sex stereotyping or 

a supervisor’s refusal to promote ‘another woman’ may not be 

determinative for a particular job applicant, but it may be 

determinative for a future applicant if left unsanctioned”].) As 

one commentator put it, “Punishing only employers who 

discriminate against an entire class, and not just against 

individuals who exhibit behaviors associated with that class, 

allows employers to continue evaluating workers according to 

bigoted criteria.” (Herz, Price’s Progress: Sex Stereotyping and Its 

Potential for Antidiscrimination Law (2014) 124 Yale L.J. 

396, 434.) 
22

her pregnancy, its mixed-motive analysis translates readily to the 

summary judgment context. Although we have found no 

published California decision relying on Harris’s mixed-motive 

analysis for review of a summary judgment, numerous federal 

courts have adapted Price Waterhouse’s analysis for review of 

orders granting summary judgment. An Eleventh Circuit decision 

recently surveyed other circuit decisions and found the Eighth 

Circuit to be the only one requiring plaintiffs to adhere to the 

McDonnell Douglas burden-shifting framework in mixed-motive 

cases. (See Quigg v. Thomas County School District (11th Cir. 

2016) 814 F.3d 1227, 1237-1239; see also Comment, Mixed Motives 

and Motivating Factors: Choosing a Realistic Summary

Judgment Framework for § 2000e-2(m) of Title VII (2010) 

54 St. Louis U. L.J. 1439.) As described in Quigg, the mixedmotive framework for summary judgment “requires a court to ask 

only whether a plaintiff has offered ‘evidence sufficient to convince 

a jury that: (1) the defendant took an adverse employment action 

against the plaintiff; and (2) [a protected characteristic] was a

motivating factor for the defendant’s adverse employment action.’”

(Quigg, at p. 1239; compare Reeves v. Safeway Stores, Inc. (2004) 

121 Cal.App.4th 95, 111, fn. 11 [“Plaintiff has not invoked the 

competing model of ‘“‘mixed motive’”’ analysis, under which a case 

goes to the jury if there is evidence that an impermissible criterion 

‘“‘was a motivating factor for any employment practice.’”’ 

[Citations.] This model presents its own perplexities . . . but has 

the virtue of a more direct and logical method for the assessment 

of conflicting proofs of motive than has developed under what 

Judge Posner calls ‘the McDonnell Douglas quadrille.’”].)

Ultimately, courts have recognized that whether a court 

applies the McDonnell Douglas framework or the mixed-motive 
23

analysis described in Quigg, the relevant inquiry devolves to a 

showing of some discriminatory animus. (See, e.g., McGinest v. 

GTE Service Corp. (9th Cir. 2004) 360 F.3d 1103, 1122 [employees 

may survive a motion for summary judgment through the 

McDonnell Douglas framework or by simply showing a genuine 

issue of material fact exists as to whether an illegal reason was a 

motivating factor in an adverse action]; Diamond v. Colonial Life 

& Accident Ins. Co. (4th Cir. 2005) 416 F.3d 310, 318 [same]; 

Hossack v. Floor Covering Assocs. of Joliet, Inc. (7th Cir. 2007)

492 F.3d 853, 860-862 [same].) 

In short, when an employee fails to establish pretext, 

evidence of discriminatory animus is the sine qua non of a 

discrimination claim. Moreover, Harris tells us “there must be a 

causal link between the employer’s consideration of a protected 

characteristic and the action taken by the employer” and a plaintiff 

must demonstrate “discrimination was a substantial motivating

factor, rather than simply a motivating factor.” (Harris, supra,

56 Cal.4th at pp. 215, 232; accord, Soria, supra, 5 Cal.App.5th at 

p. 590; see DeJung v. Superior Court (2008) 169 Cal.App.4th 533, 

551 [“[P]roof of discriminatory animus does not end the analysis of 

a discrimination claim. There must also be evidence of a causal 

relationship between the animus and the adverse employment 

action.”].) If triable issues of material fact exist whether 

discrimination was a substantial motivating reason for the 

employer’s adverse employment action, even if the employer’s

professed legitimate reason has not been disputed, the FEHA claim 

is not properly resolved on summary judgment. 
24

3. Toyota Established a Legitimate Nondiscriminatory 

Reason for Husman’s Termination, but Husman Also 

Raised a Triable Issue of Fact as to Whether His 

Termination Was Substantially Motivated by

Discriminatory Bias

The summary judgment record plainly demonstrates Toyota 

had a legitimate, nondiscriminatory reason for discharging 

Husman that was nonpretextual. Toyota established that by 

September 15, 2011 Bybee had become so frustrated by Husman’s

absences from the office and his insubordinate behavior, she no 

longer wanted to manage him. According to Toyota, her 

dissatisfaction with Husman’s performance, which she expressed 

to Borst on the afternoon of September 15, 2011, led Borst to 

decide to terminate Husman, a decision he relayed to Pelliccioni 

who in turn informed Bybee.12 Under McDonnell Douglas and 

Harris, therefore, the burden of persuasion shifted back to 

Husman to show his termination was also substantially motivated 

by impermissible bias. Husman satisfied that burden: The 

evidence before the court is susceptible to reasonable inferences 

that discriminatory animus—a dislike for Husman’s being “too 

gay”—also contributed to Husman’s termination, thus creating a 

disputed issue of material fact sufficient to defeat the motion for 

summary judgment. 

 

12 The trial court found Toyota had carried its burden based on 

Husman’s inappropriate comments to fellow employees for which 

he was disciplined with the warning letter in early May 2011. 

That is not correct; both Bybee and Pelliccioni testified 

termination was not contemplated when they met with Husman 

six weeks later on June 23, 2011, the meeting at which Pelliccioni 

offered Husman the opportunity to work with an executive coach. 
25

a. Husman has not forfeited mixed-motive analysis

Although Toyota included a mixed-motive defense in its 

answer, neither party discussed Harris or mixed-motive analysis 

in its summary judgment papers or briefs on appeal. We 

instructed counsel to be prepared at oral argument to address the 

applicability of Harris to this case. 

Citing several federal circuit court decisions and this court’s 

decision in Alamo v. Practice Management Information Corp. 

(2013) 219 Cal.App.4th 466, Toyota argued Husman had waived 

(forfeited) any mixed-motive analysis by failing to expressly raise 

it in the trial court. The cited federal cases (predominantly from 

the Fifth Circuit) do employ a strict forfeiture analysis. Our 

decision in Alamo, however, applied the forfeiture doctrine in an 

appeal by a defendant following a jury trial and was based on the 

employer’s failure to assert as an affirmative defense that it had 

not discriminated against plaintiff or had legitimate reasons for 

discharging her. (Id. at p. 482.) That is not this case. Moreover, 

“[a]n exception to the general rule may be presented . . . where the 

theory presented for the first time on appeal involves only a legal 

question determinable from facts which not only are 

uncontroverted in the record, but which could not be altered by 

the presentation of additional evidence. [Citation.] And whether 

the general rule shall be applied is largely a question of the 

appellate court’s discretion.” (Redevelopment Agency v. City of 

Berkeley (1978) 80 Cal.App.3d 158, 167; accord, In re Marriage of 

Priem (2013) 214 Cal.App.4th 505, 510-511; see County of Kern v. 

T.C.E.F., Inc. (2016) 246 Cal.App.4th 301, 326; see also Alki 

Partners, LP v. DB Fund Services, LLC (2016) 4 Cal.App.5th 574, 

599 [“‘[i]t makes no difference that the issue was first raised on 
26

appeal by the court rather than the parties, as long as the parties 

have been given a reasonable opportunity to address it’”].) 

We exercise that discretion in this case. Husman’s evidence 

that discrimination was a substantial motivating factor for his 

discharge was set forth in his separate statement of disputed facts 

(cf. North Coast Business Park v. Nielsen Construction Co. (1993) 

17 Cal.App.4th 22, 28 [in reviewing ruling on summary judgment 

motion an appellate court will consider only the facts before the 

trial court at the time it ruled on the motion]); and his counsel 

argued, notwithstanding Toyota’s evidence of legitimate business 

reasons for the termination, Husman’s evidence created a triable 

issue of material fact with regard to Toyota’s liability under 

FEHA. Although Husman did not cite Harris or identify his claim 

as relying on mixed-motive analysis, he provided the trial court 

with all of the elements of a mixed-motive claim. And, as 

discussed, the inquiry at this stage of the proceedings is 

essentially the same, focusing on whether the employment 

decision was substantially motivated by discriminatory animus.

b. The conflicting same-actor and cat’s paw inferences

In challenging the contention discrimination played any role 

in these events, Toyota heavily relies—as did the trial court—on 

the allegedly undisputed fact that Borst, the person responsible 

for Husman’s advancement at Toyota, was also the person who 

fired him, a factual pattern cited by a number of courts as “sameactor” evidence susceptible to a strong inference the actor harbors 

no discriminatory motive. (See Horn v. Cushman & Wakefield 

Western, Inc. (1999) 72 Cal.App.4th 798, 809 [“‘where the same 

actor is responsible for both the hiring and firing of a 

discrimination plaintiff, and both actions occur within a short 

period of time, a strong inference arises that there was no 
27

discriminatory motive’”].) According to this theory, “‘“[i]t hardly 

makes sense to hire workers from a group one dislikes (thereby 

incurring the psychological costs of associating with them), only to 

fire them once they are on the job.”’” (Ibid.)

Husman responds that Pelliccioni, whom he believed was 

biased against him, was directly involved in his termination and 

acted as the “cat’s paw” that influenced the decision, even if Borst 

believed he made the decision independently. (See DeJung v. 

Superior Court, supra, 169 Cal.App.4th at p. 551 [under the cat’s 

paw theory, “showing that a significant participant in an 

employment decision exhibited discriminatory animus is enough 

to raise an inference that the employment decision itself was 

discriminatory, even absent evidence that others in the process 

harbored such animus”]; Reeves v. Safeway Stores, Inc., supra,

121 Cal.App.4th at p. 100 [reversing summary judgment because 

the evidence raised triable issues of fact as to whether the 

supervisor’s action was precipitated by the improper motivations 

of his intermediate managers].)

While once commonly relied on by courts affirming 

summary judgment against a plaintiff alleging discriminatory 

action, the same-actor inference has lost some of its persuasive 

appeal in recent years. For instance, in Nazir v. United Airlines, 

Inc. (2009) 178 Cal.App.4th 243 Division Two of the First District 

—the same court that had previously decided Horn v. Cushman & 

Wakefield Western, Inc.—cautioned that, while same-actor 

evidence could generate an inference (and not a presumption) of 

nondiscrimination, “the effect should not be an a priori 

determination, divorced from its factual context[,] . . . be placed in 

a special category, or have some undue importance attached to it, 

for that could threaten to undermine the right to a jury trial by 
28

improperly easing the burden on employers in summary 

judgment.” (Nazir, at p. 273, fn. omitted.) The court found the 

inference inapplicable under the circumstances of that case in 

which the supervisor exhibited hostility toward the plaintiff 

during the promotion process, had an “axe to grind” that tained 

the investigation and then later terminated him. (Id. at pp. 274-

277.)

Scholars have also cautioned that “[p]sychological science on 

moral licensing reveals that, when a person makes both an initial 

positive employment decision and a subsequent negative 

employment decision against a member of a protected group, the 

second negative decision is more likely to have resulted from bias, 

not less.” (Quintanilla & Kaiser, The Same-Actor Inference of 

Nondiscrimination: Moral Credentialing and the Psychological 

and Legal Licensing of Bias (2016) 104 Cal. L.Rev. 1, 10, 

fn. omitted.) “Supervisors often behave as if hiring a member of a 

protected group provides them with a moral credential of being 

bias free, which inhibits their egalitarianism when making other 

decisions that affect that employee. As such, [courts] have 

developed an interstitial doctrine that is behaviorally unrealistic 

and inconsistent with how humans actually behave.” (Ibid.) The 

authors cite the Seventh Circuit as offering an appropriate 

jurisprudential approach to same-actor evidence, admitting it as 

circumstantial evidence to be weighed with all other evidence by 

the trier of fact with no prescribed inference in favor of either side. 

(Id. at pp. 10-11 [discussing Perez v. Thorntons, Inc. 

(7th Cir. 2013) 731 F.3d 699, 710]; see also Johnson v. Zema 

Systems Corp. (7th Cir. 1999) 170 F.3d 734, 745 [questioning 

psychological underpinning of same-actor inference; “an employer 

might be unaware of his own stereotypical views of African-
29

Americans at the time of hiring”]; but see Quintanilla & Kaiser, at 

pp. 36-37 [discussing other circuit courts that equate the sameactor inference to “a virtually irrefutable presumption of 

nondiscrimination,” rebuttable only by direct evidence of 

discrimination to survive summary judgment].) As the authors 

point out, “reliance on the same-actor inference to carry the 

moving party over the hurdle of summary judgment is legally 

impermissible, because drawing legitimate inferences from the 

facts are jury functions and, at summary judgment, the court 

must disregard all evidence favorable to the moving party that the 

jury is not required to believe.” (Quintanilla & Kaiser, at p. 38.)

In the case at bar, the evidence asserted by Toyota to

support the same-actor inference is also susceptible to reasonable 

inferences favorable to Husman that must be credited on 

summary judgment. Notwithstanding Borst’s plain sway over his 

subordinate executives, hiring, promotion and firing decisions at 

TFS were made by consultation with members of a management 

committee, thereby offering substantial opportunity for other 

executives to influence Borst’s perceptions. As to Husman’s 2010 

promotion, Borst, Pelliccioni, Bybee and Wada each had input into 

the decision. While Bybee and Wada did not confess to 

reservations about Husman’s promotion, Pelliccioni admitted to 

unspecified doubts but hid them in deference to Borst’s 

endorsement of Husman. Likewise, the termination decision 

followed extensive discussions among these same executives about

Husman’s performance, few of which were addressed by Toyota in 

its separate statement but were acknowledged by Pelliccioni in his 

subsequent statements to the consultant investigating the 

termination. Indeed, Borst’s claim he made the decision 

unilaterally is incompatible with the record’s depiction of how 
30

management operated at Toyota. As one California court 

observed in criticizing an inference arising from a supervisor’s

purported ignorance of the plaintiff’s complaints to other 

managers, “This concept—which for convenience we will call the 

‘defense of ignorance’—poses few analytical challenges so long as 

the ‘employer’ is conceived as a single entity receiving and 

responding to stimuli as a unitary, indivisible organism. But this 

is often an inaccurate picture in a world where a majority of 

workers are employed by large economic enterprises with layered 

and compartmentalized management structures. In such 

enterprises, decisions significantly affecting personnel are rarely 

if ever the responsibility of a single actor. As a result, 

unexamined assertions about the knowledge, ignorance, or 

motives of ‘the employer’ may be fraught with ambiguities, 

untested assumptions, and begged questions.” (Reeves v. Safeway 

Stores, Inc., supra, 121 Cal.App.4th at p. 108.)

Moreover, Bybee’s statements to Husman when informing 

him of his termination cast doubt as to the linear process depicted 

by Toyota and the cited basis for termination. Bybee admitted she

told Husman he was being terminated because he had “excluded 

the majority,” meaning he had failed to obtain the buy-in of “the 

majority,” Toyota’s non-diverse employees. Husman understood 

this to mean he had focused too much on LGBT issues, a 

reasonable interpretation (although not the only interpretation) of 

the remark. Moreover, according to Husman, Bybee told him 

Pelliccioni “had it out for him” and suggested he appeal to Borst—

hence Husman’s apologetic email to Borst asking for 

reconsideration. Although Toyota insists Bybee simply did not

know the course of events when she spoke with Husman and

mistakenly believed Pelliccioni had made the decision, ignoring 
31

Husman’s account of the conversation would require us to weigh 

the facts and disregard inferences in his favor, something we are 

prohibited from doing on summary judgment. 

c. Husman’s evidence of Pelliccioni’s biased remarks

In Reid, supra, 50 Cal.4th 512 the Supreme Court explained 

that discriminatory remarks can be relevant in determining 

whether intentional discrimination occurred: “Although stray 

remarks may not have strong probative value when viewed in 

isolation, they may corroborate direct evidence of discrimination 

or gain significance in conjunction with other circumstantial 

evidence. Certainly, who made the comments, when they were 

made in relation to the adverse employment decision, and in what 

context they were made are all factors that should be considered.

Thus, a trial court must review and base its summary judgment 

determination on the totality of evidence in the record, including 

any relevant discriminatory remarks.” (Id. at p. 541.) The Reid

Court further stated: “A stray remark alone may not create a 

triable issue of . . . discrimination. . . . But when combined with 

other evidence of pretext, an otherwise stray remark may create 

an ‘ensemble [that] is sufficient to defeat summary judgment.’” 

(Id. at pp. 541-542, original italics.) This “totality of 

circumstances analysis” allows courts to “winnow[] out cases ‘too 

weak to raise a rational inference that discrimination occurred.’”

(Id. at p. 541, citing Guz, supra, 24 Cal.4th at p. 362; see Harris, 

supra, 56 Cal.4th at p. 231 [“section 12940(a) does not purport to 

outlaw discriminatory thoughts, beliefs, or stray remarks that are 

unconnected to employment decisionmaking”].)

Husman presented evidence that Pelliccioni harbored 

stereotypical views of gay men and articulated clear opinions as to 

what he considered appropriate gender identity expression, 
32

observing at various times that Husman had made “a very clear 

statement” about his sexual orientation and should cut his hair, 

as well as ridiculing him for wearing a scarf as an accessory when 

it was not cold outside. Husman argues these remarks, while 

possibly not patently offensive to a non-gay observer, revealed 

that Pelliccioni viewed him as “too gay” and incompatible with 

Toyota’s corporate culture, even if a less obviously gay employee 

would be acceptable. Although perhaps less flagrantly offensive

than the criticisms offered by Price Waterhouse partners, these 

remarks reveal the same kind of stereotypical thinking that led 

those partners not to promote Ann Hopkins.

As one commentator has explained, “One useful example of 

the way in which straightforward sexual-orientation 

discrimination claims fail in cases where sex stereotyping would 

succeed is that of the ‘gayer’ plaintiff—in other words, of an LGBT 

person who is treated worse than another employee of the same 

sexual orientation who behaves in such a way as to deflect 

attention from her status.” (Herz, Price’s Progress: Sex 

Stereotyping and Its Potential for Antidiscrimination Law (2014) 

124 Yale L.J. 396, 428.) “In these cases, while the discrimination 

clearly arises from antigay bias, the employer’s preference for 

gender-conforming, ‘less gay’ coworkers makes the case 

unintelligible without a Price Waterhouse framework.” (Id. at 

p. 432.) “If the plaintiff can successfully demonstrate that the 

defendant was motivated by his dislike of these behaviors, the 

question then becomes whether that dislike was motivated by 

discriminatory ideas about how different sexes should behave. 

This is a hard question for plaintiffs to answer, but it is a fair 

question for courts to ask, and it gets at the heart of what makes 

sex stereotyping so pernicious. Price Waterhouse claims, by 
33

focusing on specific behaviors rather than group identification, 

allow courts to reach subtler and more individuated forms of sex, 

and sexual orientation, discrimination.” (Id. at pp. 434-435.)

Thus, even if Pelliccioni’s remarks were not made in the 

direct context of the termination decision, given Pelliccioni’s 

position it is difficult to deny that any bias he felt or expressed 

toward Husman had the capacity to affect management’s

perceptions of Husman’s performance and attitude, as well as

exacerbate Husman’s own increasingly alienated behavior. (See 

Reid, supra, 50 Cal.4th at p. 541.) This connection was confirmed 

by Bybee’s statements to Husman that he was being fired for 

“excluding the majority” and that Pelliccioni had it out for him. 

As such, Pelliccioni’s remarks were sufficiently connected to the 

ultimate decision to terminate Husman and should have been 

considered by the trial court in evaluating the justification for 

termination proffered by Bybee. 

Indulging these inferences in Husman’s favor, as we must, 

he has raised a triable issue of material fact that impermissible 

bias was a substantial motivating factor for his termination.

13 

 

13 Husman’s cause of action for wrongful termination in 

violation of public policy/discrimination is grounded on the same 

conduct as his FEHA discrimination claim. Because Husman has 

established a triable issue of material fact as to whether 

invidious sex or gender stereotyping related to his sexual 

orientation was a substantial motivating factor for his 

termination, summary adjudication on his common law wrongful 

termination cause of action should have been denied. (See Soria, 

supra, 5 Cal.App.5th at p. 604; see also Davis v. Farmers Ins. 

Exchange (2016) 245 Cal.App.4th 1302, 1323 [jury instructions in 

mixed-motive common law wrongful termination case must be 
34

While this is a close case, especially in light of the evidence of 

Toyota’s ongoing efforts to promote diversity and inclusion, the 

trial court’s failure to look behind the company’s assertions of 

moral right and Borst’s purportedly autonomous role in the 

decision to fire Husman was error and contrary to Harris’s

nuanced analysis of complex discriminatory behavior. 

4. Husman Failed To Raise a Triable Issue of Fact That 

Toyota Discharged Him in Response to His Complaints

About Prohibited Actions

The retaliation provision of FEHA forbids an employer “to 

discharge, expel, or otherwise discriminate against any person

because the person has opposed any practices forbidden under” 

FEHA. (§ 12940, subd. (h).) “Employees may establish a prima 

facie case of unlawful retaliation by showing 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.” (Miller v. Department of 

Corrections, supra, 36 Cal.4th at p. 472; accord, Yanowitz v. 

L’Orea USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz); see

Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 

713-715.) Like claims for discrimination, retaliation claims are 

subject to the McDonnell Douglas burden-shifting analysis. 

(Loggins v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th 

1102, 1108-1109.) 

Although “[r]etaliation claims are inherently fact-specific” 

(Yanowitz, supra, 36 Cal.4th at p. 1052), “an employee’s 

 

the same as prescribed by Supreme Court in Harris for mixedmotive FEHA discrimination claim].)
35

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.” (Id. at p. 1046.) “[C]omplaints 

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.” (Id. at 

p. 1047; accord, Castro-Ramirez v. Dependable Highway Express, 

Inc. (2016) 2 Cal.App.5th 1028, 1046.) Of course, an employee 

need not explicitly and directly inform his or her employer he or 

she believes the employer’s conduct was discriminatory or 

otherwise forbidden by FEHA. (Yanowitz, at p. 1046; CastroRamirez, at p. 1046.) “‘The relevant question . . . is not whether a 

formal accusation of discrimination is made but 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.’” (Yanowitz, at 

p. 1047; accord, Castro-Ramirez, at p. 1047.) 

Husman points to two instances he claims support his 

charge of retaliation: 1) his complaint to Vincent Bray that 

Pelliccioni had refused to include AIDS Walk LA on the list of 

automatic payroll deductions; and 2) his comment to the Diversity 

Advisory Board that, while Toyota’s LGBT employees had made 

some progress, there was still work to be done.14 The first 

 

14 Husman also cites the complaint of anti-gay discrimination 

he made in late September 2011 after he was notified by Bybee he 

had been terminated. We agree with Toyota that this complaint 

could not have been relevant to the decision to terminate him. 
36

incident does not qualify as a basis for a claim of retaliation 

because Pelliccioni’s denial of Husman’s request did not violate 

any FEHA prohibition. (See Yanowitz, supra, 36 Cal.4th at

p. 1047 [no prima facie case of retaliation unless the employee 

conveys a reasonable concern “‘the employer has acted or is acting 

in an unlawful discriminatory manner’”]; Moore v. Regents of

University of California (2016) 248 Cal.App.4th 216, 245 [“‘case 

law and FEHA’s implementing regulations are uniformly 

premised on the principle that the nature of activities protected by 

section 12940, subdivision (h) demonstrate some degree of 

opposition to or protest of the employer’s conduct or practices

based on the employee’s reasonable belief that the employer’s 

action or practice is unlawful,’” italics omitted].)

Similarly, Husman’s statement to the Diversity Advisory 

Board falls short of communicating a particularized complaint 

about discriminatory treatment of LGBT employees and, instead,

was likely understood as an exhortation common among diversity 

advocates to the effect that, while progress has been made, much 

work remains to be done. (See Hood v. Pfizer, Inc. (3d Cir. 2009)

322 Fed.Appx. 124, 126, 131 [employee’s question at companywide meeting “‘why Pfizer wasn’t doing more to promote 

diversity’” expressed “a generalized concern” about diversity,

“worlds apart from the kind of particularized statement targeting 

discrete past events” necessary to survive summary judgment].) 

While Husman believed his statement angered Borst, Borst 

testified he did not even remember the statement. Indeed, Borst’s 

 

(See Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1052 

[retaliation claim rejected when alleged wrongful acts occurred 

before sexual harassment complaint was filed]; see also Chen v. 

County of Orange (2002) 96 Cal.App.4th 926, 948.)
37

message at the June 2011 awards reception was essentially the 

same, stating the generalized desire that, someday, a diversity 

and inclusion officer would no longer be necessary. 

Absent the identification of some more pointed criticism or 

opposition salient to an act reasonably believed to be prohibited by 

FEHA, Husman failed to raise a triable issue of fact supporting 

his claim of retaliation.15

DISPOSITION

The judgment is reversed, and the order granting summary 

judgment is vacated. The superior court is to enter a new order 

denying summary adjudication of Husman’s claims of employment 

discrimination based on sexual orientation and wrongful 

termination in violation of public policy/discrimination but 

otherwise granting the motion. The parties are to bear their own 

costs on appeal.

PERLUSS, P. J.

We concur:

SEGAL, J. SMALL, J.*

 

15 Because Husman’s FEHA retaliation claim fails, his claim 

for wrongful termination in violation of public policy/retaliation 

premised on the same allegation fails as well. (See Hanson v. 

Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 229.)

* Judge of the Los Angeles County Superior Court, assigned 

by the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.