LYNDA RAMSEY v. KAISER FOUNDATION HEALTH PLAN INC (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Plaintiff and appellant Lynda Ramsey sued her former employer and others for age discrimination and retaliation.   The trial court granted defendants' summary judgment motion and entered judgment for defendants.   In this appeal from the judgment, we find no triable issues of material fact and we affirm.

BACKGROUND

Plaintiff, who was born on July 17, 1943, began working as a registered nurse (RN) for defendant Southern California Permanente Medical Group (SCPMG) or related entities ¹ in December 1991 at age 48.   During her employment, plaintiff held various positions including:  (1) per diem RN from 1991;  (2) benefitted regular staff RN from April 1992;  (3) assistant department administrator from July 1992;  (4) utilization management coordinator in Bellflower from September 1993;  (5) business analyst in Pasadena from 1998;  (6) case manager in Anaheim from July 2002;  and (7) RN coordinator in Downey from May 2004.

When defendants Brian Muir and Alexis Rodriguez hired plaintiff on behalf of SCPMG for the RN coordinator position in May 2004, she was 60 years old.   All of the alleged instances of age discrimination and retaliation in this litigation occurred during plaintiff's assignment as RN coordinator from May 2004 to August 2008, when she retired at the age of 65.

I. Age-Based Comments

Plaintiff contends that prior to working in the Emergency Prospective Review Program (EPRP), she consistently received good performance reviews.   She claims that her difficulties began after she stopped dying her hair in 2004 and went to work in the EPRP.

When Muir and Rodriguez interviewed plaintiff for the EPRP position in April 2004, she was wearing a brown wig to cover her “half brown/half gray” hair.   But when plaintiff began working in the EPRP in May 2004, she was no longer wearing a wig and had short gray hair.   Allegedly, Muir and Rodriguez were shocked by her changed appearance and commented on her gray hair.   Plaintiff contends that “[f]rom that point forward, [her] experience as a Kaiser employee changed drastically.”

Plaintiff asserts that while working in the EPRP, she was “subjected to repeated ageist remarks and pushed to retire.”   She contends that Rodriguez made several inquiries regarding her retirement plans as well as those of her coworker, Madhu Malti, who was 67 years of age.   She infers that Rodriguez instigated the following incident in 2006:  “[A coworker] came out of [Rodriguez's] office and asked the two of us when we were going to retire.   And [Malti] became so angry that she got up and she stomped into [Rodriguez's] office․  And [Malti] said, look when I retire I'll - when I'm ready to retire I'll let you know, don't keep sending people out there to ask me about it.   And [Malti] reported back that [Rodriguez had] apologized and just said, well, we need to know when people are going to retire, and it's very important for the running of the department.”

Plaintiff also contends that her “coworkers, who were mostly Filipino, called her ‘Lola,’ which is Tagalog for ‘grandmother’-remarks that Defendant Rodriguez likely overheard but never attempted to stop.  [Record citations omitted.]  ․ At times, her coworkers also called her ‘the golden girl.’   [Record citation omitted.]” ²

Plaintiff also refers to an incident in 2006 or 2007, when she “had been working with two younger doctors (Dr. Fries and Dr. Pearson) for a few hours when they began talking negatively about working with old doctors and nurses.   [Record citations omitted.]   Dr. Fries specifically stated that he ‘hated’ working with old doctors and nurses because ‘they were slow and incompetent’ and Dr. Pearson agreed with him.  [Record citation omitted.]”

II. Excessive “Not Ready” Percentages

A major issue in this litigation involves the calculation of plaintiff's excessive “not ready” percentages, which plaintiff contends were based on falsified data.

As an RN coordinator, plaintiff's duties included answering “telephone calls from non-Kaiser emergency rooms and managing the care and treatment of Kaiser members at non-Kaiser facilities.”  “When an RN Coordinator is unable to answer an incoming call, she enters a code on her telephone to indicate that she is ‘not ready.’   The telephone system then automatically routes the incoming calls that would be directed to that RN Coordinator to another telephone.”

The EPRP uses computerized performance statistics reports that “set forth the percentage of time ․ that the RN Coordinator has punched in as ‘not ready’ on the telephone system during work shifts.”   The EPRP's productivity standards stipulate that an RN coordinator's “not ready” percentage may not exceed 18 percent (this was later reduced to 15 percent).

Throughout plaintiff's tenure in the EPRP, her “not ready” percentages ranged from 28.16 percent to 48.44 percent, which was “substantially higher than the average for all RN Coordinators and fell outside the productivity standard.”   As a result of her excessive “not ready” percentages, Muir and Rodriguez repeatedly counseled plaintiff that she must reduce her “not ready” percentages to meet the 18 percent productivity standard.

Plaintiff concedes that she does not know how her “not ready” percentages were compiled.   Nevertheless, she conducted an experiment that led her to believe that her percentages were being manipulated.   According to the parties' separate statements, “Plaintiff claims that she conducted an ‘experiment’ in which she allegedly did not punch in as ‘not ready’ at all during an entire month, even when she went to lunch or the restroom.   She claims that her Not Ready Time remained high.”   However, plaintiff “could not identify the month or year in which she allegedly conducted the Not Ready Time ‘experiment.’ ”

Although “[p]laintiff never talked to Muir or Rodriguez regarding her belief that the Not Ready Times were inaccurate,” she discussed her belief with another supervisor, Imelda Regino-Lones (also known as Mandy) in the fall of 2006.   Plaintiff testified:  “I mentioned to Mandy what I had done [to conduct the experiment].   And I said, ‘I think that they are cooking the books.’   And she said, ‘You're right.’  [¶] Q And so what else did Mandy say to you?  [¶] A She didn't elaborate on it.   She was in a difficult - I had placed her in a difficult position.” ³

Plaintiff also testified that in 2007, she had discussed her suspicions regarding the “not ready” percentages with Elyse Lunsford, Muir's supervisor, and Sandra Ly, a human resources representative.   Plaintiff testified that about “a month later, Elyse stopped by my desk and talked to me for a long time and explained to me how they did the not-ready.   She said, ‘Well, I don't think,’ - she said she didn't think it was possible.   However, she also said, ‘I don't understand how all of it works, but I don't think it is possible.’   And I just said, ‘Okay.’ And I wasn't going to argue with her.   I wasn't in any position to argue.”  “But she also added the caveat that she didn't know for sure because she didn't know the system that well.”

III. Denial of Other Positions

Another issue in this litigation is whether plaintiff was passed over for an evening supervisor position in the EPRP and an assistant clinical director position in Bellflower because of age discrimination.   The hiring decisions were made by Rodriguez as to the evening supervisor position in the EPRP and defendant Charlotte Cook as to the assistant clinical director position in Bellflower.

In October 2006, plaintiff filed an age discrimination claim with the Department of Fair Employment and Housing (DFEH) (the original DFEH claim).   The original DFEH claim alleged only that plaintiff had been passed over by Cook for the assistant clinical director position because of age discrimination.   At the time, plaintiff did not challenge the denial of the evening supervisor position or mention any other incidents related to her employment in the EPRP. The original DFEH claim did not mention any of plaintiff's supervisors in the EPRP, including Muir and Rodriguez.

IV. The January 2007 Warning and Other Alleged Retaliation

In January 2007, plaintiff received a written warning from Muir and Rodriguez regarding her excessive “not ready” percentages.⁴  The warning stated that unless plaintiff's “not ready” percentages conformed to the 18 percent productivity standard within the next 60 days, she would face further disciplinary action, up to and including termination.   After receiving the warning, plaintiff amended her DFEH claim to allege a retaliation claim against Muir and Rodriguez.

Plaintiff contends that Muir and Rodriguez were retaliating against her for filing the original DFEH claim even though neither was named in the original claim.   Plaintiff argues that their knowledge of the original DFEH claim may be reasonably inferred from the following facts:  (1) several coworkers in the EPRP called plaintiff a “greedy, stupid idiot” for filing the original DFEH claim;  (2) Regino-Lones warned plaintiff that “they” knew she had filed the claim and to “Watch yourself”; ⁵  and (3) immediately after she filed the original DFEH claim, Rodriguez and Muir “escalated their negative treatment of her” by either ignoring her or exploding with anger over minor incidents, by ordering her not to refer to doctors as “doc,” although others commonly did so, and by requiring her to verify every physician's telephone number even though others were not required to do so.

V. Plaintiff's Medical Leave, Lawsuit, and Retirement

In July 2007, plaintiff took a medical leave of absence from her position in the EPRP. In August 2007, while still on medical leave, plaintiff filed the present lawsuit for age discrimination and retaliation against SCPMG, Kaiser Foundation Health Plan, Inc., Kaiser Foundation Hospitals, Rodriguez, Muir, and Cook.⁶ The complaint alleged that, because of her age, plaintiff had been passed over for both the EPRP evening supervisor position and the Bellflower assistant clinical director position, which were given to younger, less qualified individuals.   In addition, the complaint alleged that plaintiff had been repeatedly admonished for excessive “not ready” percentages that were based on falsified data.   Finally, the complaint alleged that Muir and Rodriguez had issued the January 2007 warning in retaliation for filing the original DFEH claim.

In August 2008, plaintiff retired from her position in the EPRP after her one-year medical leave expired.   Allegedly, plaintiff “felt forced to retire earlier than she planned because she had:  (1) exhausted her medical leave provided by Kaiser;  (2) could not return to work for medical reasons;  and (3) if she did not retire, she would have been terminated and lost her retirement benefits as well as her medical insurance.”

VI. Defendants' Summary Judgment Motion

In October 2008, defendants moved for summary judgment of the complaint.   Defendants relied on plaintiff's deposition testimony to establish:  (1) the lack of any discriminatory remarks by the alleged decision makers, Rodriguez, Muir, and Cook;  and (2) plaintiff's lack of knowledge regarding “how the Not Ready Time reports are calculated or generated.”   Defendants submitted the declarations of Cook, Muir, and Rodriguez to set forth their legitimate business reasons for the challenged employment decisions.

In her declaration, Cook attested that she did not offer plaintiff the assistant clinical director position because plaintiff lacked the necessary qualifications for the position.   Cook “was concerned that the night staff was socializing too much and not being productive.   I wanted to hire someone who would take charge of the night shift and control the problems I was having with them.   I was looking for someone who had a genuine interest in helping the department to grow and who wanted to make a difference, to make things happen, and to move the department forward.  [¶] ․ Plaintiff told me during the interview that she was interested in the Assistant Clinical Director [ACD] position because it paid more money than she was then currently earning.   I was concerned because I wanted to hire somebody who was passionate about the position and wanted to make a difference.   I did not feel that Plaintiff embodied these qualities.  [¶] ․ I also wanted someone who was clinically current-i.e., who was working directly with patients in a clinical setting-for the ACD position, because the ACD would be working in a clinical setting.   I wanted to be sure that the new ACD would not have to struggle with clinical work, but instead could focus on management.   I understood that Plaintiff, as a RN Coordinator in the EPRP, was not working in a clinical setting, but instead only discussed treatment of patients over the telephone.  [¶] ․ I decided not to hire Plaintiff because I felt Plaintiff was not clinically current and because I questioned Plaintiff's motivation for seeking the position.  [¶] ․ I also decided not to hire another applicant, a male doctor who appeared to be 35 to 45 years old.  [¶] ․ My date of birth is August 24, 1956.   At the time I interviewed Plaintiff for the ACD position, I was 49 years of age.  [¶] ․ I offered the ACD position to Lisa Green Andersen (‘Anderson’), which she accepted.   I hired Anderson because I thought she was clinically competent and well-suited for the position.   I already knew Anderson and knew that she was clinically competent.   I had seen Anderson's interactions with the staff in the department, and felt she was a natural leader.   Anderson appeared to see the position as a challenge and seemed eager and motivated to do it well.   I believed that Anderson was someone who could pull the staff together and that she had the drive to be successful in getting the night shift to work productively.   In addition, Anderson was already known to the staff because she was already working in the Medical Surgical Services Department.   Anderson proved to be a good fit for the Assistant Clinical Director position and I have been very happy with her performance.”

In his declaration, Muir attested that he did not offer plaintiff the evening supervisor position because, although plaintiff had interviewed well, he “was concerned with Plaintiff's consistently high Not Ready Times as a RN Coordinator and believed that Plaintiff would not be a good example as a night supervisor for the RN Coordinators.  [¶] ․ In June or July 2005, I made the decision to hire Regino-Lones for the EPRP Evening Supervisor position.   We had hired a lot of new RN Coordinators and we needed a supervisor who understood the EPRP department very well to train them.   I hired Regino-Lones because she had been working in the department for a few years and because I believed she was a very strong RN Coordinator.   Rodriguez was not involved in the decision to hire Regino-Lones.   At the time I hired Regino-Lones, she was 54 years of age.”

Defendants contended that because the denial of the evening supervisor position was not mentioned in the original DFEH claim, liability as to that issue was barred by the failure to exhaust administrative remedies.   Defendants pointed out that “[t]o maintain a FEHA claim, an administrative charge must be filed with the DFEH within one year of the allegedly discriminatory act.   Cal. Gov't Code § 12960.   Acts occurring more than one year before the filing of a charge are not actionable.  Cucuzza [v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1040] (no liability for conduct occurring more than a year before the filing of the administrative charge absent some exception).  [¶] Plaintiff filed her initial DFEH charge on October 5, 2006, and, therefore, she can challenge only acts that occurred after October 5, 2005.   Because Plaintiff was not hired for the ․ EPRP Evening Supervisor position in June or July 2005, these acts are not actionable as they fall outside the statute of limitations.”

In their declaration, Muir and Rodriguez denied having any knowledge of plaintiff's original DFEH claim until February or March 2007.   They denied retaliating against plaintiff, and denied altering her “not ready” percentages.   They attested that they “always believed” that the “not ready” percentages provided an accurate assessment of the RN coordinators' work performance.

Defendants urged the trial court to grant summary judgment because the evidence was insufficient, as a matter of law, to establish either:  (1) a prima facie case of retaliation or age discrimination;  or (2) that the legitimate, non-retaliatory reasons articulated by defendants for the adverse employment decisions were a pretext for retaliation or age discrimination.

VII. Plaintiff's Opposition

Plaintiff opposed the summary judgment motion, but did not respond to the argument that she had failed to exhaust her administrative remedies as to acts occurring prior to October 5, 2005, including the denial of the night supervisor position.  (Gov.Code, § 12960, subd. (d).)

Plaintiff argued that summary judgment was improper due to the existence of triable issues of material fact as to:  (1) whether her “not ready” percentages were based on falsified data, as suggested by her inexplicably high “not ready” percentages following the one-month experiment when she intentionally avoided reporting herself as “not ready,” which Regino-Lones agreed was evidence of “cooking the books”;  (2) whether Muir and Rodriguez knew she was being called “Lola” (grandmother) and “golden girl” by the EPRP staff;  (3) whether Muir's stated reason for denying her the evening supervisor position (poor work performance) was a subterfuge for age discrimination, given that Muir knew of her allegedly poor work performance when he invited her to interview for the position (plaintiff stated below, “We ask again - why would Mr. Muir waste his and Plaintiff's time of interviewing for other positions when he already knew of her alleged poor work performance?   Was his intent to harass Plaintiff, making her think she was going to be hired, only to slip the carpet from under her feet?   Why keep asking the Plaintiff to interview for the job in light of that?”);  (4) whether Cook's stated reason for denying plaintiff the assistant clinical position was a subterfuge for age discrimination, given that when plaintiff previously worked in the Bellflower facility, Cook had repeatedly asked her to cover Cook's night supervisor shift (plaintiff stated below, “If the Plaintiff's skills were good enough for that, at least as good as Charlotte Cook's, they should have been good enough for the position plaintiff was applying for”);  and (5) whether Muir and Rodriguez were aware of the original DFEH claim when they issued the January 2007 warning, given that other EPRP employees knew of the claim and Regino-Lones had warned her that “they” knew about her lawsuit and to watch herself.

Plaintiff argued below that “it was clear that Plaintiff was being discriminated against simply because of her age.   She was referred to as a ‘golden girl’ in front of the entire staff.   Her co-workers called her ‘Lola,’ which means ‘grandmother’ in Tagalog.   She looked much older tha[n] the other staff, as she no longer dyed her hair [to] cover her gray/white hair.”   Plaintiff denied that her colleagues' ageist remarks could be dismissed, as a matter of law, as isolated, ambiguous, or stray remarks that were unrelated to the decisional process.   She argued that although Muir and Rodriguez had hired her for the RN coordinator position at the age of 60, a jury could reasonably find that Muir had rejected her for the evening supervisor position because of her age, given that the position was awarded to a younger, less qualified person.   Plaintiff also pointed out that the timing of the January 2007 warning was suspicious because it was given “within months of when [she] was to receive her retirement benefits.”

VIII. The Trial Court's Ruling

The trial court granted the summary judgment motion for the following reasons that were stated in its January 26, 2009 ruling:  “As in Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 369, Plaintiff's evidence raises, ‘at best, only a weak suspicion that discrimination was likely [the] basis' for defendants[’] failure to select her to fill several more desirable positions for which she applied.”  “After assuming the position of RN Coordinator, [plaintiff] applied for several more desirable positions with defendants.   Her complaint is that defendants' failure to place her in the more desirable positions was based on age discrimination.  [¶] Brian Muir interviewed Plaintiff for one of those positions.   Mr. Muir testified that he selected a different candidate for the position of Night Supervisor of the RN Coordinators because of Plaintiff's problematic ‘not ready’ times and his concern[ ] that she would not set a good example for the RN Coordinators she would manage in the new position.   Plaintiff applied, but was not selected for, two other positions with Defendants.   The hiring decisions for these positions were made by persons other than her supervisors.   Defendants have proffered legitimate business reasons for each of these decisions.  [¶] Plaintiff admits that none of her supervisors (or potential supervisors) made any remarks suggesting discrimination on the basis of age.   She does, however, challenge the accuracy of the computerized ‘not ready’ reports.   She says that she tested the computerized system by not reporting herself ‘not ready’ for a month and nevertheless scored ‘not ready’ a significant portion of the time.  [Plaintiff] also says that she told a supervisor, Imelda Regina-Jones, ‘I think they are cooking the books,’ and that the supervisor replied, ‘You're right.’   Other than plaintiff's appearance as a mature woman with gray hair (made more apparent when she stopped wearing a brunette wig), there is no evidence connecting her skepticism about the ‘not ready’ reports with bias based on age.  [¶] Plaintiff must prove intentional discrimination in order to prevail at trial.   As the Guz court noted, ‘the great weight of federal and California authority holds that an 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․  [T]here must be evidence supporting a rational inference that intentional discrimination, on grounds prohibited by the statute, was the true cause of the employer's actions.  Id. at 361 (citing St. Mary's Honor Center v. Hicks (1993) 509 U.S. 502, 510-511).   The evidence in this case falls short of that standard.   Defendants are therefore entitled to summary judgment.”

The trial court entered judgment for defendants.   Plaintiff timely appealed from the judgment.

DISCUSSION

I. Summary Judgment

The standard of review for summary judgment is well established.   The motion “shall be granted if 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).)  A moving defendant has met his burden of showing that a cause of action has no merit by establishing that one or more elements of a cause of action cannot be established or that there is a complete defense.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849-850;  Lackner v. North (2006) 135 Cal.App.4th 1188, 1196.)

We independently review an order granting summary judgment, viewing the evidence in the light most favorable to the nonmoving party.  (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768;  Lackner v. North, supra, 135 Cal.App.4th at p. 1196.)   In performing our independent review of the evidence, “we apply the same three-step analysis as the trial court.   First, we identify the issues framed by the pleadings.   Next, we determine whether the moving party has established facts justifying judgment in its favor.   Finally, if the moving party has carried its initial burden, we decide whether the opposing party has demonstrated the existence of a triable, material fact issue.”  (Chavez v. Carpenter (2001) 91 Cal.App.4th 1433, 1438.)

In determining whether there are triable issues of material fact, we consider all the evidence set forth by the parties, except that to which objections have been made and properly sustained.  (Code Civ. Proc., § 437c, subd. (c);  Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 334.)   We accept as true the facts supported by plaintiff's evidence and the reasonable inferences therefrom (Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 148), resolving evidentiary doubts or ambiguities in plaintiff's favor (Saelzler v. Advanced Group 400, supra, 25 Cal.4th at p. 768).

II. Age Discrimination

In general, the California Fair Employment and Housing Act makes it an unlawful employment practice for an employer to refuse to hire or employ, or to discharge, or discriminate against a person over the age of 40 on the basis of age.  (Gov.Code, § 12940, subd. (a).)  In cases such as this, where there is no direct evidence that the alleged adverse employment actions were the result of a discriminatory motive, the courts rely on the burden-shifting procedure set forth in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 800-803.   The same burden-shifting procedure is used when reviewing summary judgment motions in age discrimination cases.  (See Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1002.)   Under the burden-shifting procedure, the employee must first establish a prima facie case of age discrimination, the employer must then offer a legitimate reason for its actions, and, finally, the employee must prove that the proffered reason was a pretext to disguise an illegal motive.  (Sada v. Robert F. Kennedy Medical Center, supra, 56 Cal.App.4th at p. 149.)

In order to establish a prima facie case of age discrimination, a plaintiff must generally show that:  (1) she belonged to a protected class;  (2) she was qualified for the position being sought;  (3) she suffered an adverse employment action such as termination, demotion, or denial of an available job;  and (4) some other circumstance that suggests a discriminatory motive.   (Guz v. Bechtel National, Inc., supra, 24 Cal.4th 317, 355.)

In this case, plaintiff contends that she was an employee over the age of 40, who was qualified for all relevant positions, and was “continually reprimanded for ‘poor’ performance,” given “scurrilous performance reviews based on inaccurate data,” and “rejected for two different jobs” because of her age.   She argues that the self-serving declarations of defendants Muir, Rodriguez, and Cook should be viewed with caution, particularly with regard to their state of mind, under Code of Civil Procedure section 437c, subdivision (e).⁷

A. Acts Occurring Before October 5, 2005

As previously discussed, defendants argued below that any liability for acts occurring before October 5, 2005, including the July 2005 denial of the evening supervisor position, was barred by the failure to exhaust administrative remedies.  (Gov.Code, § 12960, subd. (d).)  Plaintiff did not address the failure to exhaust administrative remedies issue in her opposition to the motion below, and the trial court did not rely on it in granting the motion.

In their respondents' brief, defendants again argued that the failure to exhaust administrative remedies precluded any liability for the denial of the evening supervisor position.   Plaintiff did not address the issue in her reply brief.

Because the issue was raised by defendants both below and on appeal, plaintiff has had an adequate opportunity to address it in both forums.  Code of Civil Procedure section 437c, subdivision (m)(2) provides that “[b]efore a reviewing court affirms an order granting summary judgment or summary adjudication on a ground not relied upon by the trial court, the reviewing court shall afford the parties an opportunity to present their views on the issue by submitting supplemental briefs.”   We conclude this provision is inapplicable where, as here, the opposing party was afforded an opportunity to present her view on the issue at all stages of the litigation.

A reviewing court may affirm a summary judgment on any correct legal theory, provided the parties had an adequate opportunity to address the theory in the trial court.  (California School of Culinary Arts v. Lujan (2003) 112 Cal.App.4th 16, 22 [“ ‘As a corollary of the de novo review standard, the appellate court may affirm a summary judgment on any correct legal theory, as long as the parties had an adequate opportunity to address the theory in the trial court․’ ”].)  In this case, the evidence is undisputed that plaintiff, who had an opportunity to address the issue in the trial court, failed to exhaust her administrative remedies as to the denial of the evening supervisor position.   We therefore conclude that any liability for that denial is barred, as a matter of law, by Government Code section 12960, subdivision (d).

B. Denial of Assistant Clinical Director Position

As to the denial of the assistant clinical director position, the trial court found the evidence legally insufficient to support a finding of age discrimination.   Plaintiff contends on appeal that the ruling must be reversed because the proffered reasons for the denial were implausible.   Plaintiff argues:  “First, it is outrageous for Defendants to claim that Ms. Ramsey only sought out the position for the money.   As set forth above, Ms. Ramsey specifically gave Defendant Cook several reasons for why she wanted the ACD position.   The fact that the position paid more money was a bonus, but certainly not the primary reason Ms. Ramsey applied for the job.  [¶] Second, Defendants' claim that Cook rejected Ms. Ramsey for the job because of her non-current clinical skills makes no sense whatsoever.   Defendant Cook obviously knew the state of Ms. Ramsey's clinical skills when she decided to consider her for the position, but then rejected Ms. Ramsey based on the state of her clinical skills?   This explanation is simply not believable.   It grows even more dubious given the undisputed fact that for several years leading up to Ms. Ramsey's interview for the ACD position, Defendant Cook frequently asked Ms. Ramsey to cover her duties at the Bellflower facility.  [Record citation omitted.]   And, indeed, Ms. Ramsey did cover Defendant Cook's clinical duties on many occasions.  [Record citation omitted.]   Consequently, Defendants' reasons for Ms. Ramsey's rejection from the ACD position are illogical and unworthy of credence, thereby raising a triable issue of material fact.   [Citation.]”  We are not persuaded.

The problem with plaintiff's position is the absence of any evidence of discriminatory conduct or remarks by Cook. There was nothing to suggest that Cook harbored any age-based animus toward plaintiff in particular or older employees in general, or that Cook, who did not work in the EPRP, knew about or condoned the use of the names “Lola” and “golden girl,” or the inquiries regarding plaintiff's retirement plans.   Even if we assume for the sake of argument that the reasons proffered by Cook were not the true reasons that plaintiff was denied the assistant clinical director position, there is nothing to suggest that the decision had anything to do with plaintiff's age.   Whatever the true reasons were for the denial, as long as they were not discriminatory, they “need not necessarily have been wise or correct.  [Citations.]”  (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 358.)

III. Retaliation

“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 employer's action.’   (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)”  (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1020.)  “The FEHA makes it unlawful ‘[f]or any employer ․ to discharge, expel, or otherwise discriminate against any person [ (1) ] because the person has opposed any practices forbidden under this [Act] or [ (2) ] because the person has filed a complaint, testified, or assisted in any proceeding under this [Act].’ (Gov.Code, § 12940, subd. (f).)”  (Sada v. Robert F. Kennedy Medical Center, supra, 56 Cal.App.4th at p. 155, fn. omitted.)

Plaintiff contends that in retaliation for filing the original DFEH claim, she was:  (1) given the January 2007 written warning, which was based on falsified data and threatened further disciplinary action, up to and including termination;  (2) treated by Muir and Rodriguez as though she did not exist and excluded from a poker party at Rodriguez's home;  and (3) singled out for unfavorable treatment, such as being told not to refer to doctors as “doc” and to verify physician's telephone numbers.   The evidence, however, is insufficient to create a triable issue of material fact.

The January 2007 warning was based on preexisting performance issues for which plaintiff had been repeatedly counseled before the DFEH claim was filed.   Plaintiff admits in her opening brief that “[a]lmost from the outset of her employment as an RN Coordinator, Defendants constantly criticized Ms. Ramsey for allegedly high ‘not ready’ percentages on her Performance Reports.”   The fact that the same performance issues continued to plague plaintiff after the DFEH claim was filed does not reasonably support a finding that the January 2007 warning was issued in retaliation for filing the claim.

Although plaintiff argues that her performance was not deficient and the criticisms were based on falsified “not ready” percentages, she never shared this belief with Muir or Rodriguez during their numerous discussions regarding her substandard performance.   Plaintiff, who admittedly does not know how the computer-generated “not ready” percentages were created, presented no evidence that Muir or Rodriguez was capable of altering the data entered into the computer (as opposed to inserting a handwritten notation on the performance statistics report regarding an employee's objection regarding the report's accuracy).   Although plaintiff claimed to have conducted an experiment in which she deliberately refrained from recording herself as “not ready,” she could not identify either the date of the experiment or the performance statistics report that corresponded with the experiment.   Because plaintiff never shared her suspicions regarding the falsified data with Muir or Rodriguez, there is nothing to contradict their professed belief in the accuracy of the data.   Even if Muir and Rodriguez were wrong in assuming the accuracy of plaintiff's “not ready” percentages, there is nothing to indicate that their belief was dishonest.  (See Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 358 [ultimate issue is whether the employer's proffered reasons, if nondiscriminatory on their face, were honestly believed by the employer].)

Plaintiff points out that she disclosed her suspicions regarding the falsified data to Regino-Lones, Lunsford, and Ly, but that no action was taken.   She states, “Tellingly, none of the individuals to whom Ms. Ramsey complained about the inaccurate Performance Reports submitted a Declaration denying these facts.   Indeed, although Regino-Lones is still employed by Defendants, she has not denied Ms. Ramsey's undisputed testimony that she knew that Defendants were tampering with Ms. Ramsey's Performance Reports.   This lack of evidence, standing alone, raises a triable issue of material fact.”   We disagree.   The mere fact that plaintiff disclosed her suspicions to Regino-Lones, Lunsford, and Ly does not suggest that the data was falsified or that Muir and Rodriguez were dishonest in their belief regarding the accuracy of the data.

Plaintiff places much reliance on her brief conversation with Regino-Lones regarding her suspicions that the data had been falsified.⁸  However, plaintiff's statement, “ ‘I think that they are cooking the books,’ ” does not identify who or what “they” were doing.   The statement is so vague that it fails to support a reasonable inference that Muir or Rodriguez were altering plaintiff's “not ready” percentages or that they were doing so because of her age.   Accordingly, Regino-Lones's response, “You're right,” sheds no light on the situation.

In short, plaintiff's belief that the “not ready” percentages were falsified is supported solely by conjecture and speculation, which will not suffice to create a triable issue of material fact.  “An issue of fact can only be created by a conflict of evidence.   It is not created by ‘speculation, conjecture, imagination or guess work.’  [Citation.]  Further, an issue of fact is not raised by ‘cryptic, broadly phrased, and conclusory assertions' [citation], or mere possibilities [citation].”  (Sinai Memorial Chapel v. Dudler (1991) 231 Cal.App.3d 190, 196-197.)

Finally, we turn to the remaining allegations of retaliation:  excluding plaintiff from a poker party at Rodriguez's home;  ordering plaintiff not to refer to doctors as “doc”;  and requiring plaintiff to verify physician's telephone numbers when others were not required to do so.   For purposes of a FEHA retaliation lawsuit, an adverse employment action is something that materially affects the terms and conditions of employment.  (Yanowitz v. L'Oreal USA, Inc., supra, 36 Cal.4th at p. 1051.)  “Minor or relatively trivial adverse actions by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee do not materially affect the terms or conditions of employment.   [Citation.]”  (Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1387.)   As measured by this definition, we conclude that these alleged instances of retaliation are so minor that they are not adverse employment actions as a matter of law.

IV. Punitive Damages

In light of our determination that there are no triable issues of material fact regarding the retaliation and age discrimination claims, plaintiff's contention that she is entitled to a jury trial of her punitive damages claim lacks merit and requires no further discussion.

V. Defendants' Separate Statement

Plaintiff contends that the summary judgment must be reversed because, due to an alleged defect in defendants' separate statement of undisputed facts (the use of incorporation by reference), the burden of producing evidence of triable issues of fact never shifted to plaintiff.⁹

Defendants correctly point out that plaintiff never raised this objection in the trial court.   Even if we assume for the sake of discussion that incorporation by reference is not allowed in a separate statement of undisputed facts, the trial court was entitled to exercise its discretion as to whether the motion should be denied on that basis.  (Code Civ. Proc., § 437c, subd. (b)(1).)   But because the objection was not raised below, the trial court was not afforded an opportunity to exercise its discretion as to this issue.   We conclude that because plaintiff failed to raise the issue in the trial court, the issue has been forfeited on appeal.  (In re Stier (2007) 152 Cal.App.4th 63, 74-75.)

DISPOSITION

The judgment is affirmed.   Defendants are awarded their costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. According to respondents' brief, plaintiff was employed by SCPMG when she retired in August 2008.   It is unclear whether plaintiff was ever employed by either of the related entities, defendants Kaiser Foundation Health Plan, Inc. or Kaiser Foundation Hospitals.According to the opening brief, plaintiff is not challenging the summary judgment in favor of the three individual defendants, Alexis Rodriguez, Brian Muir, and Charlotte Cook..  FN1. According to respondents' brief, plaintiff was employed by SCPMG when she retired in August 2008.   It is unclear whether plaintiff was ever employed by either of the related entities, defendants Kaiser Foundation Health Plan, Inc. or Kaiser Foundation Hospitals.According to the opening brief, plaintiff is not challenging the summary judgment in favor of the three individual defendants, Alexis Rodriguez, Brian Muir, and Charlotte Cook.

FN2. In the late 1980's, there was a television series called “The Golden Girls,” in which the principal characters were four older women..  FN2. In the late 1980's, there was a television series called “The Golden Girls,” in which the principal characters were four older women.

FN3. The opening brief describes the conversation somewhat differently.   According to the opening brief, “Ms. Ramsey told Regino-Lones that she believed her percentages on the computer were being tampered with by Defendants.   Regino-Lones told Ms. Ramsey she was right and that she, Regino-Lones, had now been placed in a difficult position by Plaintiff.   [Record citations omitted.]”   But according to plaintiff's testimony, the person who made the statement about being placed in a difficult position was plaintiff, not Regino-Lones..  FN3. The opening brief describes the conversation somewhat differently.   According to the opening brief, “Ms. Ramsey told Regino-Lones that she believed her percentages on the computer were being tampered with by Defendants.   Regino-Lones told Ms. Ramsey she was right and that she, Regino-Lones, had now been placed in a difficult position by Plaintiff.   [Record citations omitted.]”   But according to plaintiff's testimony, the person who made the statement about being placed in a difficult position was plaintiff, not Regino-Lones.

FN4. The January 2007 warning stated in relevant part:  “Lynda continues to fall outside the acceptable not ready percentage parameters.   Not ready percentage is calculated based on amount of time an employee is logged in and not ready to work.  [¶] Lynda's not ready percentage is sometimes three times higher than the departmental average for all nurses.   She is consistently twice the agreed upon productivity standard of 18%.  [¶] We met with Lynda in March 2006 and discussed her unacceptable rate which was over 40%.   We met with Lynda again in August 2006 to discuss her unacceptable not ready percentages.   We talked about the reasons for improving.   We told her that it directly affects her cases per shift, which is well below standards.   We discussed the EPRP process and how to manage cases and gave her suggestions on how to improve.  [¶] In March Lynda's personnel goal was to improve to the departmental average.  [¶] For November Lynda's rate is 36.9% and the November average for all nurses is 15.4%. For December Lynda's rate is 36.6% and the December average for all nurses is 15.6%. [¶] The departmental standard is 18%.  [¶] We have seen virtually no improvement in Lynda's not ready percentage.   Lynda's current rate is considerably outside the acceptable range.   Lynda must reach the departmental standard of 18% by the end of the first quarter or she will face further disciplinary action up to, and including, termination.”.  FN4. The January 2007 warning stated in relevant part:  “Lynda continues to fall outside the acceptable not ready percentage parameters.   Not ready percentage is calculated based on amount of time an employee is logged in and not ready to work.  [¶] Lynda's not ready percentage is sometimes three times higher than the departmental average for all nurses.   She is consistently twice the agreed upon productivity standard of 18%.  [¶] We met with Lynda in March 2006 and discussed her unacceptable rate which was over 40%.   We met with Lynda again in August 2006 to discuss her unacceptable not ready percentages.   We talked about the reasons for improving.   We told her that it directly affects her cases per shift, which is well below standards.   We discussed the EPRP process and how to manage cases and gave her suggestions on how to improve.  [¶] In March Lynda's personnel goal was to improve to the departmental average.  [¶] For November Lynda's rate is 36.9% and the November average for all nurses is 15.4%. For December Lynda's rate is 36.6% and the December average for all nurses is 15.6%. [¶] The departmental standard is 18%.  [¶] We have seen virtually no improvement in Lynda's not ready percentage.   Lynda's current rate is considerably outside the acceptable range.   Lynda must reach the departmental standard of 18% by the end of the first quarter or she will face further disciplinary action up to, and including, termination.”

FN5. According to plaintiff's deposition testimony:  “And Mandy asked me to come into her office, and so I went to her office.   And she closed the door, which was really kind of not real common for her when I went in there.   Because I figured it was something serious.   And I sat down and she said, ‘Lynda.’  [¶] ‘Yes.’ [¶] ‘They know.’  [¶] And I said, ‘What do they know?’  [¶] And she said, ‘That you filed a lawsuit.’  [¶] And I said, ‘Is this going to be a problem?’  [¶] And she said, ‘Watch yourself.’ ”.  FN5. According to plaintiff's deposition testimony:  “And Mandy asked me to come into her office, and so I went to her office.   And she closed the door, which was really kind of not real common for her when I went in there.   Because I figured it was something serious.   And I sat down and she said, ‘Lynda.’  [¶] ‘Yes.’ [¶] ‘They know.’  [¶] And I said, ‘What do they know?’  [¶] And she said, ‘That you filed a lawsuit.’  [¶] And I said, ‘Is this going to be a problem?’  [¶] And she said, ‘Watch yourself.’ ”

FN6. The complaint also alleged a claim for breach of the implied covenant of good faith and fair dealing, which is no longer at issue..  FN6. The complaint also alleged a claim for breach of the implied covenant of good faith and fair dealing, which is no longer at issue.

FN7. “If a party is otherwise entitled to a summary judgment pursuant to this section, summary judgment may not be denied on grounds of credibility or for want of cross-examination of witnesses furnishing affidavits or declarations in support of the summary judgment, except that summary judgment may be denied in the discretion of the court, where the only proof of a material fact offered in support of the summary judgment is an affidavit or declaration made by an individual who was the sole witness to that fact;  or where a material fact is an individual's state of mind, or lack thereof, and that fact is sought to be established solely by the individual's affirmation thereof.”  (Code Civ. Proc., § 437c, subd. (e).).  FN7. “If a party is otherwise entitled to a summary judgment pursuant to this section, summary judgment may not be denied on grounds of credibility or for want of cross-examination of witnesses furnishing affidavits or declarations in support of the summary judgment, except that summary judgment may be denied in the discretion of the court, where the only proof of a material fact offered in support of the summary judgment is an affidavit or declaration made by an individual who was the sole witness to that fact;  or where a material fact is an individual's state of mind, or lack thereof, and that fact is sought to be established solely by the individual's affirmation thereof.”  (Code Civ. Proc., § 437c, subd. (e).)

FN8. Plaintiff testified:  “I mentioned to Mandy what I had done [to conduct the experiment].   And I said, ‘I think that they are cooking the books.’   And she said, ‘You're right.’  [¶] Q And so what else did Mandy say to you?  [¶] A She didn't elaborate on it.   She was in a difficult - I had placed her in a difficult position.”.  FN8. Plaintiff testified:  “I mentioned to Mandy what I had done [to conduct the experiment].   And I said, ‘I think that they are cooking the books.’   And she said, ‘You're right.’  [¶] Q And so what else did Mandy say to you?  [¶] A She didn't elaborate on it.   She was in a difficult - I had placed her in a difficult position.”

FN9. Plaintiff states that “Defendants merely set forth the alleged undisputed material facts for Ms. Ramsey's FEHA age discrimination claim and then incorporated all of those facts to support summary judgment for every other one of Ms. Ramsey's claims.   While incorporating by reference is commonly used in the pleading stages, the burden of proof is much more significant for purposes of summary judgment.  [Fn. omitted.]   Ms. Ramsey must not be tied to facts that do not set forth the elements of each cause of action.   Consequently, Defendants' Separate Statement simply did not establish material facts to negate each of Ms. Ramsey's causes of action, and the ‘burden of producing evidence of triable issues of fact does not shift to the opposing party until such a showing is made.’  [Citation.]”.  FN9. Plaintiff states that “Defendants merely set forth the alleged undisputed material facts for Ms. Ramsey's FEHA age discrimination claim and then incorporated all of those facts to support summary judgment for every other one of Ms. Ramsey's claims.   While incorporating by reference is commonly used in the pleading stages, the burden of proof is much more significant for purposes of summary judgment.  [Fn. omitted.]   Ms. Ramsey must not be tied to facts that do not set forth the elements of each cause of action.   Consequently, Defendants' Separate Statement simply did not establish material facts to negate each of Ms. Ramsey's causes of action, and the ‘burden of producing evidence of triable issues of fact does not shift to the opposing party until such a showing is made.’  [Citation.]”

EPSTEIN, P.J. WILLHITE, J.