Husman v. Toyota ( 2017 )

Filed 6/21/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
JOSEPH HUSMAN, B268300
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC523358)
v.
TOYOTA MOTOR CREDIT
CORPORATION,
Defendant and Respondent.
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.
________________________
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.
2
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.
3
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 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 community relations. Bybee, in
turn, reported to Pelliccioni. Like Wada and Borst, Bybee and
4
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.
5
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.”
6
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
7
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
8
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 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 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.
9
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 “back-
track” on it.
10
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
11
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.
12
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
13
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
14
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
15
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.)
16
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
17
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.)
18
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
19
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.)
20
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.)
21
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 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 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
22
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.
23
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.
24
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
25
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 “same-
actor” 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
26
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
27
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-
28
Americans at the time of hiring”]; but see Quintanilla & Kaiser, at
pp. 36-37 [discussing other circuit 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 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
29
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
30
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,
31
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
32
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
33
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 mixed-
motive FEHA discrimination claim].)
34
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; Castro-
Ramirez, 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.
35
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 company-
wide 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.)
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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.
37