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 CORPOR ATION,

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 Pa tricio 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 cam pus 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 reta liation 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 se x 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

an d related common law tort claim . Accord ingly, 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 PROCEDUR AL 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 ne w

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 sugg ested 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

pr ogram for TFS

. D uring 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
le sbian, 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 adopt ed legislation requiring such coverage in 2004. (See Stats. 2004, ch. 488, § 4, p p. 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 tha nking 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 improve d and counseled him to develop stronger rel ationships with executive leaders to demonstrate the value of his programs
and secure their continue d 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 an other employee feel u ncomfortable.

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 executive

level 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 communit y relations. Bybee

, in

turn
, reported to Pelliccioni

. Like Wada and Borst, Bybee and5

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. Pelliccio ni 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 coun seled 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 co workers. 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 hi s 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 n ot 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 refu sed 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 h im 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 Manage r, 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 d isplayed 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 Man ager, 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 challe nge 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 th e 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 expect ations , 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 H usman 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 a t 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 o f 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. H e 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 no t 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 and8

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 Pellicci oni 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, Pellic cioni refused on the ground the list was restricted to national organizations . Pelliccioni was

aware Husman complain ed about this decision to Vincent Bray, another executive involved in approving the list. In August 2011 Husman also expressed his frustra tion 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 tha t 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 h e 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. H usman resisted producing the plan and eventually gave Bybee a list of conferences she f elt 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 staff9

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 offic e 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

- bu ilding 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 Husm an failed to attend two one

on

- 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 s cored lower had been judging him. Bybee believed this statement revealed Husman had “taken no step forward” a fter 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 prepara tion

, the mate rials 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 th e same events, Borst stated h e 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

. ” B orst testified he made the decision to terminate Husman after he left Bybee’s office and called
Pellic cioni 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 le gal 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 “exclu ding 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 r esponse she understood as an endorsement of Husman’s termination. Bybee then informed Pelliccioni of her decision, who told her she should not “back

track” 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 inclus ion 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 f or 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 perform ance

. When
Borst confirmed the decision, Husman thanked him f or 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 d ay, Elconin, Bybee and general c ounsel Katherine Adkins proposed a severance agreement allowing Husman to r emain 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 orientation12

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 FEH A . 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 a n 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 th e 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 ju dgment 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. Univisi on Radio Los Angeles, Inc. (201 6 ) 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 jud gment 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 nega tes an element of the plaintiff’ s cause of action. Alternative ly, the defe ndant 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, Wilso n 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 judgment14

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 un lawful 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 Cour t in McDonnell Douglas Corp. v. Gre en (1973) 411 U.S. 792 [ 93 S.Ct. 1817, 36 L.Ed.2d 668 ] ( McDonnell Douglas ) for the analysis of

t itle VII (42 U.S.C. § 2000e et seq. ) employment discrimination15

claims . (See Reid v. Google, Inc. (2 010) 50 Cal.4th 512, 520, fn. 2 ( Reid ) ; Guz v. Bechtel Natio nal, 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 creat e 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 unlawfu l discrimination by providing evidence that “(1) he [or she] wa s a member of a protected class

, (2) he [or she] was qualified for the position he [or she] sought or was performing competently i n the position he [or she] held

, (3) he [or she] suffered an ad verse 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 pro hibited 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 e mployer’ s reasons are pretexts for discrimination, or produce16

other evidence of intent ional 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 th e 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

- 35 7; Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 150.) “[A]n employer is entitled to summary judgme nt if, considering the employer’ s innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational i nfe rence 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 no ndiscriminatory 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 bas is 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”] .) “‘C ircu mstantial evidence of “ ‘pretense’ must be ‘specific’ and ‘substantial’ in order to create a triable issue with respect to whether the employer intended to
disc riminate” on an improper basis

. ’ ” ( Batarse v. Service Employees Intern at . Union

, Local 1000 (20 12) 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 influence d
otherwise legitimate reasons for the employ ment 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 fo r 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 discr iminatory or legitimate. By hinging li ability 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 cas e , 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 t itle 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 a t 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, d ress more femininely, wear make

- up, have her hair styled, and wear je welry. ’ ” ( Price Waterhouse

, at pp. 231

- 2 32, 235 )

. After her office18

declined to nominate her for partnership, she sued under t itle VII alleging sex discrimination. ( Price Waterhouse

, at pp. 231

- 2 33. ) 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

- 2 52 (pl urality); see also id . at p. 258 (White, J., concurring); id . at

pp. 272

- 2 73 (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 bu rden of persuasion on the issue of causation. ’ [Citation.] The high court rejected the view tha t a t itle VII plain tiff has the burden of proving ‘ but for ’ causation. Instead, the court held that once the plaintiff shows that discrimination was a motivat ing 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.E d.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 discrimina tion 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 t itle VII by amending the law to provide that “an unlawful employment practice was e stablished 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 a n 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
attributa ble 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 th e issue of causation
under FEHA. The Court analyzed legislative intent for the term
“because of” (and its corollary “but for”) and concluded the Legislat ure intended California workplaces to be free from prohibited discrimination even if the employer acte d 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, t he Court observed the Fair Employment and Housing Commission had interpret ed section 12940, subdivision (a), t o impose liability “ when ‘a20

preponderance of all the evidence demonstrates that the adverse employment action was caused at least in part by a discr iminatory
motive’” and not to absolve an employer of complete liability when
it demonstrate d it would have reached the same decision absent the discriminatory motive

. ( Harris, at pp. 224

- 225. )
I n light of the not infrequent occurrence of mixed motives i n 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 sh ould not be a complete defense to liability: 10 “[T] o say
t h at 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 circumstan ces 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 legitima te, 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 in junctive 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 establi sh discriminatory conduct that ‘ foments domestic strife and unrest, deprives the state of the fullest utilization of its capacities for development and advancement, and sub stantially and adversely affects the interests of employees, employ ers, 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 al lowed to be committed with impunity. ” ( Harris, supra

, 56 Cal.4th at pp. 22 9

- 2 30 .) 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 f o r 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 wo man’ 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 i ndividuals 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 trans lates 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 , n umerous 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

c ases. ( 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 mixed

motive 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 pla intiff; 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 competi ng 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 h as 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

- motive23

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
motivat ing factor in an adverse action]; Diamond v. Colonial Life
& Acc ident Ins. Co. (4t h 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 d iscriminatory animus is the sine qua non of a
disc rimination 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 p p

. 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 a nalysis 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

pr ofessed legitimate reason has not been disputed, the FEHA claim is not properly reso l ved on summary j udgment.24 3. Toyota Established a Legitimate Non discriminatory 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 insubordinat e 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 pe rsuasion 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 H usman’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
t ermination 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

. C iting several f

ederal circuit court decisions and this court’s
decision in Alamo v. Practice M anagement Info rmation Corp. (2013) 219 Cal.App.4th 466

, Toyota argued Husman had waived (forfeited) any mixed

- motive analysis by failing to expres sly 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 fa ilure 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 t he 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
Partner s , LP v. DB Fund Services

, LLC (2016) 4 Cal.App.5th 574, 599 [“‘[i]t makes no difference that the issue was first raised on26

appeal by the court rather than the parties, as long as the par ties 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 fa cts (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
decis ion was substantially motivated by discriminatory animus.

b. The conflicting same

- actor and cat’s paw inference s In challenging the contention discrimination played any role in these events, Toyota heavily relies

— as did the trial court

— on the allegedly undis puted 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 “same

actor” evidence susceptible to a strong inference the actor harbors
no discriminator y 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 inf erence arises that the re was no27

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 independen tly. (See DeJung v. Superior Court

, supra , 169 Cal.App.4th at p. 55 1 [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 decisio n 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 wheth er 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 H orn v. Cushman & Wakefield Western, Inc.

— cautioned t hat, 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 imp ortance attached to it, for that could threaten to undermine the right to a jury trial by28

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 p p. 274

- 277 .)
Scholars have also cautioned that “[p]syc hological 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 res ulted 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 [questi oning 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 circ uit courts that equate the same

actor 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 pa rty 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 req uired 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. Notwi thstanding 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, Pelliccio ni , Bybee and Wada each had input into the decision. While Bybee and Wada did not confess to reservations about Husman’s promotion, Pelliccio ni admitted to unspecified doubts but hid them in d eference to Borst’s endorsement of Husman. Likewise, the termination decision followed extensive discussions among these same executives ab out Husman’s performance , few of which were addressed by Toyota in its separate statement but were acknowledged by P elliccioni 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 how30

management operated at Toyota. As one California court
obs erved in criticizing an inference arising from a supervisor’s purported ignorance of the plaintiff’s complaints to other

managers , “ This concept

— which fo r convenience we will call the

‘ defense of ignorance ’

— poses few analyt ical challenges so long as the ‘ e mployer ’ 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 com partmentalized 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 knowl edge, 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 pr ocess 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. Hus man understood
this to mean he had focused too much on LGBT issues , a reasonable interpretation (although not the only interpretation) of
the remark . Moreover, a ccording to Husma n, 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

, ignoring31

Husman’s acco unt of the conversation would require us to weigh
the facts and disregard inferences in his fav or, something we are prohibited f

rom doing on summary judgment.

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

In Reid , supra, 50 Cal.4th 512 the Supreme Co urt 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 discriminat ion 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
C ourt 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) doe s 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 opi ni ons 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 acc ept able

. Although perhaps less flagrant ly 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 explaine d, “One useful example of the way in which straightforward sexual

- orientation discrimination claims fail in cases where sex stereotypin g would succeed is that of the ‘ gayer ’ plaintiff

— in other words, of an LGBT person who is treated worse than another empl oyee 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 di scrimination clearly arises from antigay bias, the employer’ s pre ference 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 fai r question for courts to ask, and it gets at the heart of what makes sex stereotyping so pernicious. Price Waterhouse claims, by33

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 expresse d 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 the se 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 s ubstantial 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.4 th 1302, 1323 [jury instructions in mixed

- motive common law wrongful termination case must be34

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 assertion s of moral right and Borst’s purportedly auto nomous 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 T hat Toyota Discharged Him in Response to His Complaints About Prohibited Ac tions 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).) “E mployees may establish a prima
faci e 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 c laims 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” ( Yan owitz

, supra, 36 Cal.4th at p. 1052 )

, “ an employee’ s

the same as prescribed by Supreme Court in Harris for mixed

motive 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 e vidence 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 em ployer 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 , a n employee need not expl icitly 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; Castro

Ramirez, at p. 1046.) “‘The relevant question . . . is not whether a formal accusati on 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 commen t to the Diversity Advisory Board that, while Toyota’s LGBT employees had made some progress, there was still work to be done. 14 T he first

14 Husman also cites the complaint of anti

- gay discrimination he m ade 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. Rege nts of
Univ ersity 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

opp osition to or protest of the employer’s conduct or practices based on the employee’ s reas onable belief that the employer’ s action or practice is unlawful ,’” italics omitted].) Similarly, Husman’s statement to the Diversity Advisory
Board falls short of com municating 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 company

wide meeting “ ‘ why Pfizer wasn’t doing more to promote diversity ’ ” expressed “a generalized concern” about diversity

, “worlds apart from the kind of particu larized statement targeting discrete past events” necessa ry 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 [retalia tion 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 receptio n 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 p rohibited by FEHA, Husman fail ed 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 ad

judication of Husman’s claim s 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.

PER LUSS, P. J.

We concur:

SEGAL, J. SMALL, J. *

15 Because Husman’s FEHA retaliation claim fails, his claim for wrongful termination i n 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.