Huang v. Cal.Pac.Med.Center

Filed 2/16/10 Huang v. Cal. Pac. Med. Center CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Defendant California Pacific Medical Center (CPMC) terminated plaintiff Man-Li Huang from her position as a supervisor of the postpartum/nursery unit at its California Campus. Huang appeals from a summary judgment dismissing her complaint against CPMC and three former CPMC employees. Huang seeks to reinstate her claims for race and national origin discrimination, retaliation, and failure to prevent discrimination, in violation of the Fair Employment and Housing Act (FEHA) (Gov. Code,  12940 et seq.),[1] retaliation and wrongful termination in violation of public policy, defamation, and unlawful business practices (Bus. & Prof. Code,  17200 et. seq.). We affirm the judgment.[2]

FACTS[3]

A. Background

In 1996,Huang began working at California Pacific Medical Center (CPMC) in the postpartum/nursery unit at CPMCs California Campus. The unit operated with three shifts of nurses, day, evening and night. The day shift nurses were scheduled to work from 7:00 or 7:30 a.m. to 3:00 or 3:30 p.m. the same day. The evening shift nurses were scheduled to work from 3:00 p.m. to 11:30 p.m. The night shift nurses were scheduled to work from 11:30 p.m. to 7:00 a.m. or 7:30 a.m. the next day. The nurses reported to charge nurses, the charge nurses reported to unit supervisors, and the unit supervisors reported to the unit manager.

Huang was initially hired as a registered nurse. In April 2004, she was promoted to supervisor working three days per week. In or about July 2004, she was promoted to a full-time position as a supervisor. After the unit manager left, Huang was promoted to interim manager, a position she held for two and a half months, at the end of which she received a customary merit bonus of $2,500.

On November 1, 2004, defendant Elizabeth Avants started worked as the units manager, becoming Huangs supervisor. Huang returned to a full-time position as evening shift supervisor.

In her complaint and in opposing defendants joint motion for summary judgment, Huang alleges that from the very beginning, her working relationship with Avants was difficult. Huang detailed some incidents purporting to demonstrate the discord between herself and Avants. At times, Huang reported such discord to Avantss supervisor, defendant Karmi Oberwager, then Vice President of Womens and Childrens Services.

Huangs complaint is essentially based on the events leading up to a disciplinary action against her in the form of a final written warning on June 17, 2005, and a termination memo on December 16, 2005.

1. Final Written Warning

The issuance of the June 17, 2005 final written warning was based on the following circumstances.

a. Code Blue Pager Policy

Sometime between April and June 2005, Avants gave Huang a copy of CPMCs Code Blue Matrix document, which explained the charging nurses responsibilities during a code blue.[4] Avants explained the document step by step to Huang as part of a new policy to be implemented for the unit. Huang participated in mock code blue emergencies and understood the code blue training was designed primarily for charge nurses. Huangs responsibilities were to make sure all charge nurses understood their duties to carry the code blue pager and to respond to the pager. Avants and Oberwager both gave instructions that the charge nurse was to carry the code blue pager during the roll out phase before the formal implementation of the plan in October 2005.

According to Avants and Oberwager, a manager of another unit told Oberwager that Huang was carrying the code blue pager for her charge nurses, and Oberwager reported the matter to Avants. Avants confronted Huang and told her it was a violation of the code blue policy for her to carry the pager for the charge nurses. Huang admitted to Avants that she had agreed to hold the code blue pager, and when she spoke with Oberwager, Huang apologized for carrying the code blue pager. At her deposition, Huang denied she had made any admissions to Avants and Oberwager, and she denied she had actually carried or even offered to carry the pager for the charge nurses. Huang contended that after she spoke with Avants, she complained to Oberwager about Avantss accusation. Oberwager replied the complaint had come from another unit manager, and Oberwager told Avants to talk to Huang about the matter. When Huang denied saying anything to another unit manager, Oberwager told Huang not to worry, that the other unit manager probably misunderstood what Huang had told her and it was not a big deal. Although Oberwager offered to talk to Avants, Huang did not ask her to do so.

b. Group Interview of Candidates for Night Shift Supervisor

In June 2005, CPMC posted an opening for a full-time night shift supervisor. Avants scheduled interviews for two outside candidates whom she knew from previous employment and were purportedly friends of hers. Avants asked Huang to conduct the interviews even though Huang told Avants she did not know how to do a group interview. Avants sat with Huang and went over the questions to be asked during the interviews.

According to Avants, she reminded Huang she should not go outside the questions, and Huang said she understood the instructions. According to Huang, Avants did not say the questions were mandatory. Avants only said the questions were for the nurses in case they did not know how to answer [a] question or in case they ha[d] a difficult time asking questions. During the interviews, Huang did not interfere when a staff nurse asked one of the prospective candidates what her age was because she looked so young. Huang reported that the candidate initially smiled, and then said, Oh, thank you. I look[] young? So thats good . . . [s]o when I get older, I will still look young. And then everybody laughed, including the candidate. Additionally, Huang denied that she told one of the candidates that she was not qualified for the position of night shift supervisor, and that she should apply for a charge nurse position. The two proposed candidates ultimately accepted Avants offer to work as part-time night shift supervisors, sharing the full-time position, and they were hired to start work in July 2005.

c. Issuance of June 17, 2005 Final Written Warning

On June 17, 2005, Avants scheduled a meeting attended by Huang, Human Resources Specialist Herbert Horder, and defendant Lin Velasquez, then Director of Human Resources. At the meeting, Huang was given a final written warning (FWW)[5] previously prepared by Avants with the assistance of Velasquez. In the FWW, Huang was informed she had violated CPMCs Policy Nos. 4250 (employee conduct) and 4050 (Equal Employment Opportunities). Avants described the incidents supporting the FWW violations as follows: During the week of June 6-10, 2005, [Huang] had two incidents occur which have resulted in this disciplinary action. [] During the previously mentioned week [Huang] circumvented my authority by not requiring the Staff Nurses to wear a code blue pager as per my instructions. The charge nurses had expressed displeasure with this responsibility, but I had asserted that this was necessary to provide better/safer patient care. [] The second incident that occurred during this time frame was in regards to [Huang] being in charge of the interview process for two potential candidates. [] I gave [Huang] specific instructions on how to handle this process and I provided her with appropriate interview questions, which she knew she needed to have the group, follow. The group asked random questions, and did not follow the set questions. Prior to this interview I made it clear to [Huang] that the group needed to follow my questions to ensure appropriateness. During the course of the random questions being asked of the applicants, a staff member asked the age of the interviewee. [] In addition, the second candidate was told by [Huang] that she was not qualified for the position she had applied for and that she might want to apply for a lesser position. [] All of these statements were confirmed by [Huang] during my initial conversation with her on these matters.

In the FWW, Avants described the impact of Huangs actions as follows: [Huangs] failure to follow my specific directions in regards to the code blue pagers resulted in a potential [undermining] of my authority. In addition, [Huangs] failure to follow my directions on this matter potentially less[e]ned the patient care that may have been provided in the event of an actual code blue. In addition, [Huangs] failure to follow my instructions in regards to the interviews; potentially will result in the loss of two viable candidates and potential[ly] placed the Medical Center legally at risk. In addition, the interview process damaged our reputation as being the Employer of Choice and presented a negative image of what our institution stands for. Avants then set forth [e]xpectations for future performance improvement: [] 1. Measurable/Tangible Improvement Goals: Immediate and sustained improvement must occur, failure to do so may result in further disciplinary action including but not limited to termination of your employment. You must follow reasonable directives and adhere to the Company policies.^[[6]] You must also exude professionalism at all times and ensure that our organization is represented in a positive light. You must be a role model for the department. [] 2. Training or Special Direction Provided: In the event that you are unclear as to the directions I provide you, or if you would like to discuss the reasoning of my directives; you should speak to me directly and prior to making decisions that could impact the department.

Huang described the circumstances of the June 17, 2005 meeting. Horder told Huang her handling of the interviews with potential employees had put the hospital at risk for a potential lawsuit. Horder also accused Huang of trying to back pedal. Avants did not say anything to Huang during the meeting. Huang attempted to explain what happened regarding the incidents in the FWW, but she was interrupted by Velasquez and not given an opportunity to explain her position. Huang also asserted she could not be accused of misconduct based on what Avants said because Avants did not like her and had been trying to get her in trouble, although Huang did not know why. Huang then got frustrated, and asked Velasquez whether she was treating Huang this way because she is Chinese. When Velasquez heard the accusation of discrimination, she got upset, stood up, and said Huang was totally insulting her. Velasquez threw her papers on the desk and then walked out of the room, and on her way out she slammed the door so hard the handle came off. Huang then asked Avants and Horder why they were doing this to her, and whether it was because she is Chinese. Both Avants and Horder denied Huangs ethnicity had anything to do with the issuance of the FWW. Velasquez later returned to the meeting, and asked Huang to sign the FWW. When Huang asked why she had to sign, Horder told her she did not have to sign the document. Huang again asked for the opportunity to explain the incidents because she never had this type of disciplinary paper in her file or in her nursing career, and if they did not believe her, they could investigate the matter. Velasquez told Huang if she disagreed with the FWW, she could file a rebuttal. However, Huang did not submit a rebuttal letter.

At her deposition, Huang explained she had asked the question about her ethnicity at the June 17, 2005 meeting because she felt she was not being given an opportunity to explain what happened regarding the FWW incidents, she did not know what else to think, and the only thing that came to her mind was probably she is Chinese and they did not like her. When asked what any of the three people had said or done before the meeting that led her to believe they were discriminating against her because she is Chinese, Huang stated she felt she was not treated fairly by Avants, who asked Huang to do most of the work and the other two supervisors did a minimal job.

2. Termination

The events leading up to the December 15, 2005 termination memo are as follows:

a. Transfer Request

After Huang received the final written warning, she decided to give up her supervisory position and return to her former position as a nurse in the postpartum unit because she no longer trusted Avants and she was afraid of further adverse actions by Avants. Huang applied to fill a nursing position in the unit after she saw Avants post a notice for five or six open positions.

On June 27, 2005, a meeting was held to address Huangs request to give up her position as a supervisor and return to her former position as nurse in the postpartum unit. The meeting was attended by Huang, Avants, Oberwager, Velasquez, and Horder. Huangs request to return to her former position as a unit nurse was denied. At her deposition, Huang testified she was told her request was denied because according to CPMCs policy, an employee with an outstanding disciplinary warning could not transfer to another position. However, Oberwager offered Huang three options: (1) despite CPMCs policy, she would be allowed to transfer to another unit as a nurse; (2) she could voluntarily resign, or (3) she could remain as a unit supervisor. If Huang chose to remain as a unit supervisor she would have to successfully comply with a performance improvement plan (PIP) because of the outstanding final written warning. If Huang successfully complied with the PIP, the final written warning would be removed from her personnel file. Huang requested and was given two weeks to decide what she wanted to do.

b. Supervisory Position Subject to Performance Improvement Plan

Huang was unsuccessful in locating a nursing position in another unit in CPMC. While she continued to look for another nursing position outside CPMC,[7] Huang agreed to stay on as a supervisor in the postpartum unit and comply with a PIP prepared by Avants. The PIP provided that starting on August 5, 2005, and for the next 90 days, Huangs work would be closely monitored by Avants. Huang was required to demonstrate immediate improvement in the following areas: Must complete all outstanding performance evaluations within the next 30 days. [] Insure that the code blue pager policy for charge nurses be implemented in accordance with the policy beginning August 1, 2005. . . . [] Assist the new unit supervisors in meeting their new orientation goals as set forth by the department. . . . [] Goal The new rounding bed process by evening shift charge nurses is in alignment with the outcome of achieving discharge appointments. . . . The plan also stated: Improvement must occur immediately and must be maintained. If any portion of this improvement plan is violated at any time during the specified timeframe, disciplinary action to include separation from the company may occur. A decrease in performance after successfully completing the improvement plan may result in being dismissed from CPMC, without the issuance of another warning or improvement plan.

At her deposition, Huang testified she was surprised by the PIP because except for the code blue pager policy, the other listed duties did not relate to the final written warning, and added new responsibilities including the preparation of performance evaluations for the nurses and assisting the new unit night shift supervisors with orientation goals. However, because Huang handled staff scheduling and daily edits of KRONOS, the new time card system, she was comfortable with the requirement that she orient the new night shift supervisors regarding daily and monthly staffing schedules, and daily edits of KRONOS. According to Oberwager, it was typical for a supervisor to complete performance evaluations for the nurses, but it would not surprise her if the postpartum nurses testified that only the unit manager had completed their evaluations because the unit did not have supervisors for a long time. Avants initially asked Huang to complete all the performance evaluations for the evening and night shift employees. When Huang replied she could not complete the evaluations in the time allotted, Avants asked her first to complete only the evaluations that were overdue, and then complete the remaining evaluations, and Avants would complete the performance evaluations for the day shift employees. When Huang stated she did not feel comfortable doing the evaluations for the night shift nurses because she had not worked with them, Avants stated she thought Huang could do the evaluations because she knew the nurses. Huang agreed to do the evaluations.

In August 2005, Oberwager reduced Huangs working hours from five days a week to four days per week. Huang never asked Oberwager why her hours had been reduced and she never asked to work additional hours on a regular basis. On one or two occasions when Huang was not able to finish her work, she asked Avants if she could come in the next day, and Avants said okay. In support of defendants motion for summary judgment, Oberwager submitted a declaration in which she stated Huangs hours had been reduced because the unit was over budget and Huang had originally performed the work of a unit supervisor while working only three days a week.

According to Huang, she had weekly meetings with Avants for the first two months of the PIP. In early October 2005, Avants was very satisfied with what Huang had done since the beginning of the PIP, and she told Huang that from then on, Huang did not need to do all the items listed in the PIP, and she should spend her energy and concentrate on completing the nurses performance evaluations. Avants also said she was very busy and she did not have time to do the performance evaluations for the day shift nurses. At Avantss request, Huang completed those evaluations, in addition to the evaluations for the evening and night shift nurses.

On or about November 1, 2005, several nurses reported to Huang that one of the night shift supervisors had made several errors on their schedules. When Huang met with the supervisor, the supervisor denied making any mistakes. Huang went back to the nurses to verify the errors; the nurses provided Huang with a copy of the schedule that the supervisor had drafted and identified the errors. After being faced with her errors, the supervisor apologized to Huang and the nurses. About one month later, Huang fielded several complaints about the other night shift supervisor. According to the nurses, the supervisor had made several mistakes on various nurses timecards. According to Huang, she did not solicit these criticisms nor encourage the nurses to criticize their supervisors.

c. Termination Memo

Huang completed most of the nurses annual performance evaluations (over 100 in total) in about nine weeks. The day after Huang completed the assignment, December 16, 2005, she was called into a meeting with Avants and Velasquez. Avants gave Huang a memo stating her employment was being terminated immediately for poor work performance and insubordination.

In the memo, Avants recounted the history of disciplinary action taken against Huang, mentioning the two incidents which formed the basis for the final written warning issued on June 17, 2005; and Huangs placement on a 90-day PIP, which required Huang to follow directives, complete work assignments, and foster teamwork within the department. Avants then asserted Huang had been given the following specific areas of improvement she failed to meet or sustain: You were instructed to ensure that the code blue pager policy for charge nurses was implemented in accordance with the policy beginning August 1, 2005. As of today, you have failed to continue to ensure that the Charge Nurses are consistently answering the code blue pagers. [] You were instructed to assist the new unit supervisors in meeting their new orientation goals as set forth by the department and to provide the first status report to me by August 12, 2005. As of today, the supervisors have not received complete orientation for KRONOS and ANSOS. You have yet to meet with both supervisors to ensure their competency on K[RONOS] and ANSOS, in direct violation of my instructions as set forth in your PIP work plan. Also, in creating the holiday schedule I instructed you in October to include [the two new unit supervisors] as you created the holiday schedule. You failed to include them at any point in the creation of this schedule. They were included only when the schedule was posted for staff. [] You were instructed to ensure that the new rounding bed process by evening charge nurses was in alignment with the outcome of achieving discharge appointments. As of today, you have failed to ensure that charge nurses on the evening shift continue to consistently round to hardwire discharge appointment times. Nor have you ensured that the staff is consistently documenting actual discharge times required for the new discharge process. [] In addition, despite being instructed to assist in fostering teamwork with our new supervisors, you failed to attend the first team-building meeting for our team in October. You acted unprofessionally when you instructed staff members to criticize . . . one of our new supervisors, in her presence. In November, you were instructed to follow up on a drug diversion case in my absence, and you failed to assist as requested by both an HR analyst and a member of risk management, which put the case in jeopardy. This past week you informed the other new supervisor . . . that you had discussions with staff who were criticizing her efforts at KRONOS edits. You would not specifically tell [the new unit supervisor] what the errors were nor help her to improve her skills in this competency. The memo concluded: Due to your failure to meet your work performance and to conduct yourself in a professional and appropriate manner, your employment with CPMC will be terminated effected December 16, 2005.

In an addendum to her DFEH complaint filed on December 12, 2006, Huang asserted the termination letter included several false and defamatory statements including but not limited to the following: her failure to (1) ensure charge nurses were consistently answering the code blue pager, (2) assist the new supervisors with their orientation goals, and (3)  meet [her] work performance and to conduct [herself] in a professional and appropriate manner. 

B. Trial Court Proceeding

On December 15, 2006, Huang sued CPMC, Avants, Oberwager, and Velasquez. She alleged FEHA claims based on race and national origin discrimination, retaliation, and failure to prevent discrimination; and causes of action for retaliation and wrongful termination in violation of public policy, defamation; as well as unlawful business practices (Bus. & Prof. Code,  17200 et. seq.). After extensive discovery, defendants moved for summary judgment.

In addressing the FEHA causes of action for discrimination, retaliation, failure to prevent discrimination, and retaliation and wrongful termination in violation of public policy, the trial court assumed Huang had established her prima facie case of racial discrimination based on her Chinese heritage, her lengthy record of satisfactory employment followed by her difficulties on being supervised by Avants, the complaints of other nurses regarding Avants, and Huangs termination. The court also found that defendant CPMC had maintained its initial summary judgment burden because it presented a legitimate basis for Huangs termination, noting that the stated reasons for Huangs termination were undisputed. The court found the reasons were objective and supported CPMCs decision to terminate Huangs employment. Additionally, the termination [was] preceded by a final written warning raising serious performance issues, meetings with human resource officers, a written Performance Improvement Plan and weekly meetings to monitor the plan between [Huang] and [Avants]. Thus, the central issue before the trial court was whether the reasons for the termination were pretextual. In resolving that issue, the court noted Huang cast Avants as the central wrongdoer, noting that her treatment of other employees was relevant to the issue of discriminatory intent. However, the court found that Huangs evidence concerned the nurses speculation that things happen[ed] to them because they are Chinese. The court also considered the incidents in the context of the racial makeup of CPMCs entire workforce at the time of the motion: 41.6 percent of the employees were Asian, and 42.9 percent of the unit supervisors were Asian. Construing the evidence regarding the code blue pager policy and the bed rounding process most favorably to Huang, the court nevertheless ruled it did not support a claim of discriminatory animus: It may well be that defendants treated . . . Huang more harshly than other employees or gave her greater challenges or were foolish and mistaken in their decision to sever her employment with CPMC. It is also true that a number of the nurses disapproved of [Avantss] management style and [Huang] has cobbled together a series of unrelated workplace incidents where the employees speculated that their mistreatment was the result of racial animus. Such evidence is insufficient to avoid summary judgment. What is missing is competent evidence showing that . . . Huangs treatment was actually motivated by the fact that she is Chinese. In sum, [Huang] fails to present specific and substantial responsive evidence demonstrating that [the] reasons for [Huangs] termination were pretextual. [Citations.]

The court also ruled Huangs claims for retaliation failed. The court initially noted, In her complaint, [Huang] alleges retaliation based on participating in an investigation of a co-worker. In response to the instant motion, however, [Huang] asserts retaliation for complaining to . . . Oberwager about . . . Avants. At oral argument, [Huangs] counsel contended that the PIP was in retaliation for [Huangs] accusation that she was being given the Final Written Warning because she is Chinese. Counsel argues that the PIP is a set up, loaded with tasks not required of others and designed to insure that [Huang] would fail. However, the court found, [o]nce again, that Huangs evidence failed to demonstrate her termination was causally related to either her complaint to Oberwager about Avantss conduct, or her complaint of discrimination at the June 17, 2005 meeting. The court explained: Although . . . Avants and . . . Huang did not have a successful working relationship, the proffered evidence fails to support the contention [that] . . . Huangs termination was the result of retaliation. [Citations.]

The court dismissed the defamation cause of action, which was based on internal discussions within CPMC related to Huangs performance. The court found the statements made about Huangs employment were qualifiedly privileged under Civil Code section 47, subdivision (c), and the record did not reflect that the statements were made with malice.

Finally, the trial court dismissed the cause of action for unfair business practices under Business and Professions Code section 17200 because it was based on the failed employment claims.

DISCUSSION

I. Standard of Review

On appeal after a motion for summary judgment has been granted, we review the record de novo, considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained. [Citation.] (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 (Guz).) Because defendants are the moving parties, they have the burden of demonstrating as a matter of law, with respect to each of the plaintiffs causes of action, that one or more elements of the cause of action cannot be established, or that there is a complete defense to the cause of action. [Citations.] If a defendants presentation in its moving papers will support a finding in its favor on one or more elements of the cause of action or on a defense, the burden shifts to the plaintiff to present evidence showing that contrary to the defendants presentation, a triable issue of material fact actually exists as to those elements or the defense. (Johnson v. United Cerebral Palsy/Spastic Childrens Foundation (2009) 173 Cal.App.4th 740, 753 (Johnson).) For practical purposes, an issue of material fact is one which, in the context and circumstances of the case, warrants the time and cost of factfinding by trial. (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1735.) Not every issue of fact is worth submission to a jury. The function of summary judgment is to separate those cases in which there are material issues of fact meriting a trial from those in which there are no such issues.

II. Discrimination In Violation of FEHA

Disparate treatment, the form of alleged discrimination at issue here, is intentional discrimination against one or more persons on prohibited grounds. [Citations.] (Guz, supra, 24 Cal.4th a p. 354, fn. 20.) In a disparate treatment case, the plaintiff must show that intentional discrimination was the determinative factor in the adverse employment action. (See Hazen Paper Co. v. Biggins (1993) 507 U.S. 604, 610.) There were two ways of proving intentional discriminationdirect evidence, and indirect or circumstantial evidence. (Guz, supra, 24 Cal.4th at p. 354.) Here, there is no direct evidence, which usually  consists of statements by a decisionmaker that directly reflect the alleged animus and bear squarely on the contested employment decision, [citation]. (Patten v. Wal-Mart Stores East, Inc. (1st Cir. 2002) 300 F.3d 21, 25.) Rather, as in most cases like this one, Huang contends the evidence would allow a rational trier of fact to infer discriminatory animus on the part of defendants. In such cases, California courts have adopted a three-stage burden-shifting test established by the United States Supreme Court for trying claims of discrimination . . . based on a theory of disparate treatment. [Citations.][8] (Guz, supra, 24 Cal.4th at p. 354.) Under the three-part test established in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802-805, (1) the employee must set forth sufficient evidence to establish a prima facie case of discrimination; (2) the employer must then articulate a legitimate, nondiscriminatory reason for the adverse employment action; and (3) the employee then has the burden to show the employers articulated reason is pretextual. (Guz, supra, 24 Cal.4th at pp. 354-356.)

It is unnecessary for us to consider whether Huang has established a prima facie case for discrimination. Even if Huang has met her initial burden, defendants met their initial burden of showing legitimate, nondiscriminatory reasons for Huangs termination.[9] [I]n employer-initiated summary judgment motions, an employers presentation of evidence showing a nondiscriminatory reason for an adverse employment action, coupled with the employees presentation of a prima facie case of discrimination, will not result in the need for a trial on the issue of discrimination. Rather, the employee must present evidence to rebut the employers claim of nondiscriminatory motivation, or the employer will prevail on its motion. (Johnson, supra, 173 Cal.App.4th at p. 755.) Consequently, the issue for us is whether Huang offered substantial evidence that defendants reasons for termination were motivated by discriminatory animus. We conclude for the reasons that follow that Huang did not meet her burden.

Huang contends the trial court placed a burden on her that far exceeded what is actually required of an employee opposing summary judgment. According to Huang, she needed only to produce competent evidence sufficient to raise an inference that CPMC did not act for the asserted non-discriminatory reasons, and that whether CPMC was in fact motivated by discrimination is for a trier of fact. We disagree. To avoid summary judgment, [t]he plaintiff must do more than raise the inference that the employers asserted reason is false. [A] reason cannot be proved to be a pretext for discrimination unless it is shown both that the reason was false, and that discrimination was the real reason. [Citation.] (Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 1003.) As explained by our Supreme Court, an inference of intentional discrimination cannot be drawn solely from evidence, if any, that the company lied about its reasons [for termination]. The pertinent statutes do not prohibit lying, they prohibit discrimination. [Citation.] Proof that the employers proffered reasons are unworthy of credence may considerably assist a circumstantial case of discrimination, because it suggests the employer had cause to hide its true reasons. [Citation.] Still, there must be evidence supporting a rational inference that intentional discrimination, on grounds prohibited by the statute, was the true cause of the employers actions. (Guz, supra, 24 Cal.4th at pp. 360-361.)

Huang contends she produced substantial evidence raising a reasonable inference of discrimination by demonstrating that the business reasons for terminating her lacked credibility, which contention was further bolstered by defendants adamant refusal to investigate the matters supporting the final written warning and termination memo. We conclude Huangs contention is unavailing. At best, Huang raised triable issues concerning whether some of the reasons for defendants actions were reasonable and well considered. A trier of fact could find either they were or they were not. What a trier of fact could not reasonably conclude, however, was that [defendants] stated reasons were implausible, or inconsistent or baseless; it would not be reasonable to conclude they were pretextual and used merely to veil an act of [racial or national origin] discrimination. (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1009 (Hersant).)[10]

Nor are we persuaded by Huangs contention that a triable factual issue of discriminatory motive is raised by evidence that the other non-Chinese unit supervisors were not disciplined for problems with the code blue pager system and the rounding bed process to facilitate the timely discharge of patients. Huangs termination was not based solely on her work performance regarding the code blue pager system and the rounding bed process. She was also terminated for not acting in an appropriate and professional manner in resolving problems between staff and the new night shift supervisors, and for insubordination in failing to perform Avantss assignments regarding staff schedules, orientation of the new night shift supervisors, and assistance in a drug diversion case. Consequently, even if the night shift supervisors retained their positions despite having committed some of the same alleged failures listed in Huangs termination memo, such evidence would not allow a rational trier of fact to infer that CPMCs motive for terminating Huang was discriminatory. (Johnson, supra, 173 Cal.App.4th at p. 754; see Hersant, supra, 57 Cal.App.4th at p. 1009 [evidence that another employee committed the same infractions as plaintiff but was not discharged failed to raise triable issue of age discrimination or pretext].) An inference of discriminatory animus is also not raised by the fact that Huang was the only unit supervisor required to complete nurse performance evaluations. An employer has the right to interpret its rules as it chooses, and to make determinations as it sees fit under those rules. [The FEHA] addresses discrimination. [Citation.] [It] is not a shield against harsh treatment at the workplace. [Citation.] (Nix v. WLCY Radio/Rahall Communications (11th Cir. 1984) 738 F.2d 1181, 1187; see Williams v. Raytheon Co. (1st Cir. 2000) 220 F.3d 16, 19 [employers harboring of hostility and unfair treatment standing alone is not probative of discriminatory animus].)

Huang also contends a triable factual issue is raised based on evidence she presented that defendants treated other Chinese nurses with similar discriminatory animus. She asks us to consider three incidents that took place after she was terminated. The incidents involved a patients complaints about the nurses who attended to her during her stay in the unit, complaints among co-workers, and a complaint by a nurse against a non-Chinese supervisor. Huang contends the experiences of these other Chinese employees show a pattern of false accusations without investigation, more severe punishment being imposed on a Chinese employee, and a failure to act to prevent or correct mistreatment of Chinese employees. However, we agree with the trial court that the unrelated workplace incidents concerning other Chinese nurses speculation of discriminatory animus, either singularly or collectively, could not raise an inference of discriminatory animus. None of the incidents revealed anything from which a rational trier of fact could infer Huang received a final written warning and termination memo because CPMCs management employees were irritated by staff complaints of racial discrimination. (See Schrand v. Federal Pacific Electric Co. (6th Cir. 1988) 851 F.2d 152, 156 [evidence of discrimination against other employees excluded as alleged statements of witnesses could not logically or reasonably be tied to the decision to terminate plaintiff], disapproved on another ground in Hazen Paper Co. v. Biggins, supra, 507 U.S. at pp. 615-616.)

We conclude our discussion by noting [t]he FEHA does not guarantee employees a stress-free working environment.  [Citation.] . . . Nor does the statute require the employer to have good cause for its decisions. The employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason. . . . While an employers judgment or course of action may seem poor or erroneous to outsiders, the relevant question is . . . whether the given reason was a pretext for illegal discrimination. The employers stated legitimate reason . . . does not have to be a reason that the judge or jurors would act on or approve.  [Citations.] (Arteaga v. Brinks, Inc. (2008) 163 Cal.App.4th 327, 344.) Even if CPMCs decision to terminate Huang may be unfair, or even  incredible to outside observers, Huang has failed to present sufficient evidence that would allow a rational trier of fact to find discriminatory intent on the part of defendants. (Nix v. WLCY Radio/Rahall Communications, supra, 738 F.2d at p. 1187). She has produced neither direct nor circumstantial evidence sufficient to support such a finding. In the absence of evidence pointing to race as the explanation for the employers conduct, we must hold that [Huang] has failed to meet h[er] burden in opposing defendants joint motion for summary judgment. (Ibid.)

III. Retaliation in Violation of FEHA

Under FEHA, an employer may not discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part. ( 12940, subd. (h).) [I]n order to establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a protected activity, (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employers action. [Citations.] (Yanowitz v. LOreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz).) For the purposes of our analysis, we assume without deciding that Huang engaged in protected activity (complained of discrimination and asked for an investigation at the June 17, 2005, meeting), and suffered an adverse employment action (collectively by defendants refusal to allow her to fill an open nursing position in postpartum unit, compliance with performance improvement plan to retain her supervisory position, reduction of hours, and termination). (See Crawford v. Metropolitan Government of Nashville and Davidson County (2009) __ U.S. __, __, 129 S. Ct. 846, 849-851; Yanowitz, supra, 36 Cal.4th at pp. 1043, 1055-1056.) Thus, the definitive issue is whether Huang produced sufficient evidence of a causal link between the protected activity and the adverse employment actions, collectively considered, from which a rational trier of fact could infer retaliation.[11] We conclude Huang has not met her burden.

Huang argues that a causal link between protected activity and the alleged retaliatory employment action can be inferred from timing alone when there is a close proximity between the two. However, once the employer has offered evidence of legitimate, nondiscriminatory reasons for its adverse employment action, as in this case, temporal proximity between the protected activity and the adverse employment action, standing alone, is not sufficient to raise a triable issue as to retaliation. (Arteaga v. Brinks Inc., supra, 163 Cal.App.4th at p. 353.) This is especially so where the employer raised questions about the employees performance before [the protected activity], and the subsequent [adverse employment actions were] based on those performance issues. (Ibid.) In this case, before Huang ever raised the spectre of discrimination based on her Chinese ethnicity, Avants prepared a final written warning regarding Huangs failure to follow Avantss instructions. To retain her supervisory position, Huang was required to comply with a PIP for 90 daysfrom August 5, 2005 to October 5, 2005and about six weeks after the conclusion of the PIP, on December 16, 2005, she was terminated based again on her insubordination for failing to follow Avantss instructions and on her work performance. Huangs attempt to connect her reduction in hours and the additional duties in the PIP to a retaliatory motive is unavailing. She never questioned Oberwager about the reduction in hours, or requested that her hours not be reduced in light of the additional work assignments given to her by Avants. Huangs evidence also does not show that defendants gave inconsistent reasons for terminating her employment, or that a pattern of antagonism followed the protected conduct such that a rational trier of fact could infer retaliation.

We therefore agree with the trial court that Huang has failed to demonstrate that her statements at the June 17, 2005, meeting were causally connected to the later alleged adverse employment actions: denial of her request to become a nurse in the postpartum unit, compliance with a 90-day PIP to retain her supervisory position, reduction in hours, and termination.[12]

IV. Defamation

Huangs defamation cause of action is based on statements made or ratified by defendants to justify her termination, including Oberwagers statements made to Grant Davies, CPMCs Senior Vice President of Operations, concerning Huangs work performance. As noted, the trial court found the challenged statements not actionable because they were privileged under Civil Code section 47, subdivision (c).[13] On appeal, Huang contends the court erred in granting summary judgment because defendants failed to establish the statements were made without malice and the record raises a triable issue of material fact regarding whether defendants statements were made with malice. We conclude Huangs contentions do not warrant reinstating the defamation cause of action.

Huang contends that although she would have the burden of proving malice at trial, on summary judgment, a defendant who relies on the qualified privilege under Civil Code section 47, subdivision (c), has the initial burden of showing the statement was made on a privileged occasion, and that it was made without malice. (Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 729.)

Defendants invocation of the Civil Code section 47, subdivision (c), qualified   privilege creates a presumption that the communication is used innocently and without malice. [Citations.]  [Citations.] (Swaffield v. Universal Ecsco Corp. (1969) 271 Cal.App.2d 147, 163.) Here, all of the challenged statements were made on a privileged occasion: they concerned the reasons for [Huangs] termination; [a]s such, they were of a kind reasonably calculated to protect or further a common interest of both the communicator and the recipient. [Citation.] (Williams v. Taylor (1982) 129 Cal.App.3d 745, 752.)

In support of her argument that defendants failed to produce a single piece of evidence demonstrating the statements were uttered without malice, Huang refers us to defendants separate statement of undisputed facts numbers 130 through 135, and the supporting evidence. However, she ignores that in support of the motion for summary judgment on the defamation cause of action, defendants incorporated by reference their earlier undisputed facts numbers one to 129, and the supporting evidence for those facts. A review of those facts and supporting evidence, demonstrates not only the existence of qualified privilege, but also facts to substantiate probable cause for the belief the challenged statements regarding Huangs work performance and insubordination were true. (Swaffield v. Universal Ecsco Corp., supra, 271 Cal.App.2d at p. 163.)

Additionally, we are not persuaded by Huangs contention that a rational trier of fact could infer malice based on evidence of: (1) anger, hostility, hatred or ill will exhibited towards her by Avants and Velasquez; (2) defendants failure to talk to the nurses before issuing Huangs final written warning and termination memo; and (3) the fact that non-Chinese supervisors were not disciplined for some of the same infractions that led to Huangs termination. [T]he sort of communications alleged here is paradigmatic of the sort of activities protected by the managers privilege. [Citation.] . . . If that privilege protects nothing else, it protects a managers right to manage personnel (including firing and hiring) without fear of independent liability, absent concrete and specific allegations that such actions were entirely for the benefit of the [manager]. [Citation.] (Kacludis v. GTE Sprint Communications Corp. (N.D. Cal. 1992) 806 F.Supp. 866, 872.) [M]alice must exist as a fact in order to destroy the privilege. [Citations.] Such facts must establish that the person speaking the defamatory words entertained toward the person defamed a feeling of hatred or ill will going beyond that which the occasion for the communication apparently justified and different from that motive which prima facie rendered the communication privileged. [Citations.] In the present case neither the declarations against, nor those in support of, the motion for summary judgment state facts which support the existence of malice. (Smith v. Hatch (1969) 271 Cal.App.2d 39, 47-48.) Nor is a triable issue of fact regarding malice raised by defendants failure to state it was not their intent to injure Huang when they made, repeated or adopted the statements regarding her work performance. If the occasion is conditionally privileged, if the defendants primary motive is the advancement of the interest which the privilege protects and if he speaks in good faith, the mere fact that he harbors ill will toward the plaintiff should be a neutral factor. (Biggins v. Hanson (1967) 252 Cal.App.2d 16, 20; see Williams v. Taylor, supra, 129 Cal.App.3d at pp. 752-753 [ if the publication is made for the purpose of protecting the interest in question, the fact that the publication is inspired in part by resentment or indignation at the supposed misconduct of the person defamed does not constitute an abuse of the privilege ].)[14]

DISPOSITION

The August 8, 2008 judgment is affirmed.

_________________________

McGuiness, P.J.

We concur:

_________________________

Pollak, J.

_________________________

Jenkins, J.

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[1] All further statutory references are to the Government Code unless otherwise specified.

[2] In her notice of appeal filed on June 4, 2008, Huang purports to appeal from a judgment after an order granting summary judgment entered May 1, 2008. On May 1, 2008, the court filed its order granting defendants joint motion for summary judgment. The final judgment in this case was not included in Huangs appendix in lieu of a clerks transcript. However, we shall take judicial notice of the final judgment, entered August 8, 2008, which is part of the record in the trial court. (Evid. Code, 451, subd. (d), Cal. Rules of Court, rule 8.155(a)(1)(A).) In the absence of prejudice, we treat the premature notice of appeal as filed immediately after entry of judgment on August 8, 2008. (Cal. Rules of Court, rule 8.104(e)(2) [premature notice of appeal].)

[3] In their separate statements of fact submitted at the trial level, the parties made evidentiary objections to some of the supporting evidence. However, the parties made no effort to secure a ruling on the evidentiary objections posited in the trial court (City of Long Beach v. Farmers & Merchants Bank (2000) 81 Cal.App.4th 780, 784), and the record contains no ruling on the objections. We therefore deem the objections waived and view [the] evidence as having been admitted in evidence as part of the record for purposes of the appeal. [Citations.] (Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 1186, fn. 1, disapproved on another ground in Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853, fn. 19.)

[4] A Code Blue is [a] term used to signify that an individual has suffered a cardiac and/or respiratory arrest and requires immediate medical and nursing intervention so resuscitative measures may be carried out.

[5] CPMCs Human Resources Policy No. 4250 provides that an employee may be issued a final written warning for a critical violation including [d]isobedience to authority or deliberate refusal to comply with/inappropriate response to a Supervisors/Managers reasonable instructions. The policy regarding corrective discipline provides for various levels of corrective disciplinary action: formal verbal warning, formal written warning, final written warning, unpaid suspension, and termination. A manager may issue a final written warning without first proceeding through other levels of disciplinary action, if an employee commits a critical violation warranting that action.

[6] CPMCs employee handbook provides an employee may be immediately discharged without prior disciplinary action for various types of conduct, including the refusal to comply with a direct order from supervisors or managers.

[7] In July or August 2005, Huang found a part-time nursing position at Kaiser Santa Clara.

[8] Because of the similarity between state and federal employment discrimination laws, California courts look to pertinent federal precedent when applying our own statutes. [Citation.] (Guz, supra, 24 Cal.4th at p. 354.)

[9] Huang contends defendants did not meet their burden because they relied solely on the reasons for termination listed in the December 16, 2005, memo and failed to produce admissible evidence demonstrating legitimate business reasons for the termination. However, in resolving a motion for summary judgment, we consider all the evidence set forth in the moving and opposition papers. (Guz, supra, 24 Cal.4th 317.) The termination letter, coupled with Avantss declaration and deposition testimony of Avants and other employees of CPMC, constitutes admissible evidence articulating nondiscriminatory reasons for the termination.

[10] Contrary to Huangs contention, Johnson, supra, 173 Cal.App.4th 740, does not support reversal in this case. In Johnson, the plaintiff contended she had been improperly discharged based on her pregnancy. (Id. at p. 747.) The employer presented a legitimate reason for firing Johnson based on her falsification of time records. (Ibid.) Nevertheless, the appellate court found the plaintiff had raised a triable issue of material fact regarding the true reason for her discharge because she presented the following substantial evidence of pretext or discriminatory animus: she was fired the very day after she returned from a short sick leave related to her pregnancy, she was not given a specific reason for her discharge, there was no indication her time records were previously a cause for concern, and she was never told her job performance was unsatisfactory in any way. (Id. at pp. 758-759.) We have no such evidence in this case.

[11] In her complaint, Huang alleged defendants retaliated against her by reducing her hours shortly after she had spoken with an unidentified investigator about another employees discrimination or harassment complaint against Avants. However, in opposing summary judgment and on appeal, Huang has abandoned this argument.

[12] Because Huangs FEHA claims based on discrimination and retaliation fail, her related claims for retaliation and wrongful termination in violation of public policy, FEHA claim for failure to prevent discrimination, and unfair business practices under Business and Professions Code section 17200, must also fail as a matter of law.

[13] Civil Code section 47 reads, in relevant part: A privileged publication or broadcast is one made: [] . . . [] (c) In a communication, without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information.

[14] We deferred until this time consideration of defendants application to file a supplemental brief, or in the alternative, to strike portions of Huangs reply br