Filed 11/17/14 Goodman v. Raytheon Co. CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


RONALD GOODMAN,                                                      B252818

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. BC453493)
         v.

RAYTHEON COMPANY et al.,

         Defendants and Respondents.



         APPEAL from a judgment of the Superior Court of Los Angeles County, Judge
Richard E. Rico. Affirmed.
         Shegerian & Associates, Carney R. Shegerian, James Urbanic, and Anthony
Nguyen, for Plaintiff and Appellant.
         Brown Gitt Law Group, Thomas P. Brown and Lawrence L. Yang, for Defendants
and Respondents, Raytheon Company and James A. Alpough.
                                           ______________________
       Ronald Goodman retired in July 2010 at age 59 after working for Hughes Aircraft
and its successor, Raytheon Company, for 39 years. Contending he had been coerced
into leaving the company, Goodman sued Raytheon and his supervisor James A. Alpough
for age discrimination, harassment, wrongful termination and breach of contract, alleging
age-related bias was a substantial factor in creating intolerable working conditions that
constituted a constructive termination. The trial court granted summary judgment in
                                 1
favor of Raytheon and Alpough. We affirm.
                 FACTUAL AND PROCEDURAL BACKGROUND
       1. Goodman’s Employment at Raytheon
       Goodman began working at Hughes in 1972 as a stock clerk. After Hughes and
Raytheon merged in 1997, Goodman retained the same job title, responsibilities,
compensation and seniority as he had with Hughes. Goodman was promoted 11 times
during the course of his career with the companies.
              a. The 2006 performance review
       In June 2006 Goodman, by then a supply chain manager, was assigned to the
space and airborne systems business unit and reported to Janet Duffey. Goodman’s
performance evaluation for 2006 rated him as “meets requirements.” According to
Goodman’s declaration submitted in support of his opposition to Raytheon’s motion for
summary judgment, at the end of a meeting with Duffey to discuss the evaluation, she
said, “I’m supposed to ask you about retirement.” According to Goodman, after he said
he did not plan to retire until he was 66 years old, Duffey “appeared disappointed, shook
her head and ended the meeting.” Goodman also asserted he was occasionally referred to
as a “super senior” around this time and was subsequently told by two managers and one
director the company was no longer interested in him, preferring “someone (1) younger,
(2) cheaper, and (3) who could grow with the company.”




1     Because there is no reason to distinguish between Alpough and Raytheon for
purposes of the appeal, we will generally refer only to Raytheon as the defendant.

                                             2
             b. The 2007 performance review
      Goodman’s performance evaluation for 2007 rated him “needs improvement.”
Goodman filed an internal complaint seeking to have the rating changed to meets
requirements on the grounds he had not been informed during 2007 his performance was
deficient; he believed negative comments made by John Wong, to whom he had reported
for four months while working on the Millennium program, were retaliatory because
Goodman had twice complained to Wong about unethical conduct including Wong’s
purported alteration of a proposal Goodman had drafted; and input had not been solicited
from other key people Goodman had supported in 2007.
      After an extensive investigation Raytheon found unsubstantiated Goodman’s
assertions Wong’s negative evaluation was retaliatory and Goodman had not been told
his performance was deficient. Bryce Wynn, an employee in human resources, reported
he had been told Goodman “needs to be spoon-fed” and, when he met with Goodman to
discuss his review, Goodman agreed he “wasn’t a good fit” with the Millennium program
from the beginning. Molly Kaplan, also with human resources, reported two Millennium
program managers whose input had not been sought in connection with Goodman’s 2007
review agreed with the needs improvement rating. They told Kaplan Goodman’s work
needed to be checked or redone; his estimates “were not even close”; Goodman was “non
value-added”; and Goodman did not “handle tasks very well.” Nevertheless, the
company changed Goodman’s rating to meets requirements because the 2007 review had
erroneously reflected only Goodman’s work on the Millennium program and some
people Goodman had supported on other programs reported his performance met or
exceeded expectations. For example, K2 program manager Karen Nourrcier indicated
Goodman, who began working on the K2 program in late 2007, exceeded expectations in
several areas. She noted, however, the “level of pressure and visible [sic] was low on
K2” and it “was a more conventional program, don’t need to work your life around the
program.”




                                            3
              c. The 2008 performance review
       During 2008 Goodman primarily worked on the K2 program but also provided
support for proposals including Iridium and Tangent. His 2008 performance review rated
him meets requirements with key strengths identified as his knowledge of certain
processes and responsiveness to, and excellent relationship with, the project management
office. Key development needs included better communication and being more
proactive; the evaluation noted Goodman “‘does not make an issue out of things until it is
almost too late’” and “‘is not necessarily proactive in taking action to head off issues.’”
       Goodman’s leadership on the K2 program team was acknowledged (and eight
individuals were recognized for their outstanding contributions) in a December 22, 2008
email from Nourrcier: “The team was led by two senior and very knowledgeable
individuals: Ron Townsend, Manufacturing Operations and Ron Goodman for Supply
Chain.” Additionally, in June 2009 Goodman received an achievement award bonus of
$500 at Nourrcier’s request “in recognition of [his] special contributions toward meeting
Company goals.”
              d. The 2009 performance review and Goodman’s retirement
       In July 2009 Alpough was appointed director of the space systems’ supply chain.
According to Goodman’s declaration, Alpough soon thereafter announced in a staff
meeting that the group was “broken,” he was going to “fix it” and “take it in a new
direction,” and it would no longer be “business as usual.” Alpough also began criticizing
Goodman. Goodman contended Alpough twice complained Goodman was “stuck in the
past”; on several occasions he accused Goodman of being physically and mentally slow;
and once he told him, “[Y]ou need to pick up the pace. I need someone with more energy
handling this job.” Additionally, Alpough repeatedly belittled Goodman during staff
meetings. Once he yelled at Goodman in front of his peers; told Goodman he was tired
of being disappointed by him; advised him he needed to learn how to use a computer and
taunted him to take a “remedial” spreadsheet class; and, when Goodman tried to leave
after the 15-minute tirade, followed him into the hallway yelling that Goodman had



                                              4
embarrassed him. In contrast, Nourrcier, with whom Goodman had worked daily, never
                                                 2
criticized Goodman for deficient performance.
       In February 2010 Goodman received his 2009 performance review from supply
chain senior manager Lissa Blomer, who reported directly to Alpough. Goodman was
rated “improvement required,” and the evaluation reported his performance on the
K2 program had steadily declined although Goodman had “met many of his goals.” Key
development areas identified included, “Increased sense of urgency that drives to meeting
deadlines and effective results”; “[p]rovide data that is accurate, appropriate, well thought
out and meets or exceeds the expected requirement”; and “[p]roactively take the lead
rather than waiting for others to initiate action.” In late February 2010 Goodman wrote a
response to the review, contending issues with a K2 proposal “were predominately
caused by a ‘[b]roken’ proposal process,” and Blomer herself led a proposal that “wound
up late and in frenzy,” demonstrating “a lack of ‘[p]roactive’ behavior associated with her
proposal.”
       On April 12, 2010 Goodman gave Raytheon notice he intended to retire on June 1,
2010. Goodman explained in his declaration it was clear to him he was being forced out
by management due to his age and he could no longer tolerate the stress and anxiety of
working with Alpough, who continued to shun and publicly humiliate him. Nevertheless,
Goodman rescinded his notice three days later after consulting with a financial adviser.
On April 20, 2010 Goodman filed an internal complaint contending his 2009 review was
“very subjective” and would have a negative effect on his retirement.
       In May 2010 Goodman was placed on a performance improvement plan requiring
review of his work every two weeks and stating he was expected to obtain results on time

2     Nourrcier testified Goodman did an excellent job the first year he worked on the
K2 program, but then his performance deteriorated as the program “ramped up and there
were more needs from a supply chain side.” Goodman became reactive to problems and
made “repetitive mistakes.” Nourrcier spoke to Goodman about these concerns and
commented he was not sufficiently proactive in one of his performance reviews.
Nourrcier also testified she “always [saw] supply chain as broken,” calling it an
“organizational problem,” which she complained about “to everyone.”

                                             5
                                         3
and within budget on enumerated tasks. On June 16, 2010 Goodman was asked to
submit a chart weekly identifying every daily task he had performed and the amount of
time taken to complete each task. Goodman advised human resources he viewed the
request as “a form [of] hostility and harassment.”
       In a June 24, 2010 letter Alpough informed Goodman that Raytheon had found his
2009 needs improvement rating “was based on objective criteria and fair and legitimate
critiques of [his] performance.” Alpough explained, “While it is acknowledged that you
met many of your goals, there were significant targets that you failed to reach and
ongoing negative performance trends that require improvement for success at your salary
grade level. . . . [¶] . . . At the Salary Grade 6 level, you are expected to proactively
manage your projects, anticipating needs and challenges, and implementing action plans
for risk avoidance and timely goal achievement. . . . A consistent comment from others
who interface with you is that you procrastinate in accomplishing tasks. While there is
evidence you respond to issues and often resolve situations—a more robust management
of the situation from the beginning could avoid last-minute crises. A similar theme is that
you frequently have to check with others for the answers to questions, rather than having
already thought through issues and done the research. You require more direction and
guidance than is expected at your level. [¶] The findings also show that you do not hold
yourself accountable for accurate work product. You do not appear to appreciate the
gravity of errors impairing your ability to be effective and for causing excessive
work/rework by others.” Coworker evaluation forms of Goodman completed in winter
2009 were mixed, giving him a “qualitative rating” between 2 and 9. In interviews with
additional personnel conducted in connection with Goodman’s complaint, 80 percent of
interviewees believed Goodman underperformed and 20 percent rated him at the meets
requirements level.




3     Alpough testified at his deposition every employee who received a needs
improvement rating was placed on a performance improvement plan.

                                              6
        Although Goodman had planned to work five or six more years to make his
retirement more financially secure, he “agreed to retire” on July 1, 2010 because
“conditions were so intolerable.” Goodman had been experiencing severe neck and back
pain, which his doctor told him was a sign of stress, as well as anxiety and depression.
        2. The Complaint
        In January 2011, after submitting an administrative complaint to the Department
of Fair Employment and Housing, Goodman filed a complaint asserting causes of action
for age discrimination in violation of the Fair Employment and Housing Act (FEHA)
                                 4
(Gov. Code, § 12940, subd. (a)), harassment on the basis of age (§ 12940, subd. (j)(1) &
    5
(3)), retaliation for complaining of discrimination and harassment (§ 12940, subd. (h)),
wrongful termination in violation of public policy, and breach of express and implied-in-
                                                                     6
fact contracts not to terminate his employment without good cause. The complaint
alleged Raytheon had constructively terminated Goodman by harassing and
discriminating against him because of his age until he felt he had no choice but to retire.
The complaint further alleged Goodman’s reports to human resources about this age
discrimination and harassment were factors in his constructive termination.
        3. The Trial Court’s Order Granting Summary Judgment
              a. Raytheon’s motion
        In January 2012 Raytheon moved for summary judgment or in the alternative
summary adjudication on grounds including Goodman had not been satisfactorily
performing his job and, having voluntarily retired, was not subjected to an adverse
employment action; his replacement was nearly his same age; and any age-related
comments were “stray remark[s]” that were not so severe or pervasive as to create an
abusive working environment or intolerable working conditions. Raytheon argued


4       Statutory references are to the Government Code unless otherwise indicated.
5       This is the only cause of action asserted against Alpough.
6      Goodman’s wife, Christine M. Bell-Goodman, joined in the complaint asserting a
cause of action for loss of consortium. That claim was subsequently dismissed.

                                             7
Goodman’s theory his age was the true cause for his negative performance reviews was
contradicted by his deposition testimony in which, for example, he acknowledged he had
made arithmetic errors in 2009 that had been called to his attention: Goodman was
asked, “[D]o you in any way take ownership for any of the shortcomings with respect to
the Iridium process?” He answered, “Yeah, because it came down to the wire, and, I
don’t know, I was making stupid math errors and things like that, and—but it’s ironic that
as soon as Lissa [Blomer] would leave my office I would find my mistake and correct it.”
When asked whether Blomer had been in Goodman’s office on some occasions to point
out these errors, Goodman said, “She was practically living there, yeah.”
       Raytheon further argued Goodman’s deposition testimony undermined his
contention Alpough had singled him out and was harassing him because of his age, not
deficiencies in his performance. Goodman testified Alpough repeatedly humiliated him
during meetings, telling him in a malicious tone of voice he had embarrassed Alpough,
but acknowledged one of the most severe instances was after Goodman had “screwed up”
a template even though the numbers were accurate. Additionally, Goodman testified “[i]t
wasn’t rare” for Alpough to make negative comments to other employees during these
meetings. Regarding Alpough’s accusation Goodman was “slow,” Goodman testified he
believed Alpough was referring to his demeanor, not the timeliness of his work,
explaining, “I would come across as maybe lacking a sense of urgency, but in fact, you
know, it’s there all the time. I just may not display it.”
              b. Goodman’s opposition
       Largely supported by his postdeposition declaration, Goodman argued nine
categories of direct evidence of discriminatory intent combined with some positive
statements in his performance reviews and coworker evaluations, established triable
issues of material fact as to whether he had been harassed and then constructively
discharged because of his age: (1) age-related comments by management indicating a
preference for younger employees, including managers using the term “young blood” at
least 50 times “to describe efforts to refresh or invigorate their departments”;
(2) management’s suggestion Goodman retire, that is Duffey appearing surprised and

                                               8
shaking her head in 2007 when Goodman indicated he did not intend to retire until he
was 66 years old; (3) human resources’ failure to follow up on Goodman’s complaints he
was being treated differently because of his age and had been called a “super senior”;
(4) Alpough’s assertion he would be taking the supply chain in a new direction in
conjunction with direct and indirect comments by Alpough about Goodman’s age,
including telling Goodman he was “stuck in the past” and “slow” and someone with
“more energy” was needed to handle the job; (5) Blomer telling Goodman he needed to
change the way he worked, calling him a “dinosaur,” and telling him dinosaurs are
extinct; (6) Alpough effectively firing Goodman twice when he told him he had no work
for him, even though Goodman was busy on the K2 program, and would not help him
find work elsewhere in the company (Goodman later learned an individual in his early
30’s got the job even though he did not have the necessary security clearances, which
Goodman had); (7) management’s statements they wanted younger employees,
specifically Alpough’s comment in March 2010 that none of the directors Alpough had
spoken to about work for Goodman wanted anything to do with him because they wanted
somebody younger on a career path; (8) placing Goodman on a performance
improvement plan, which effectively made him ineligible for annual salary increases and
profit sharing; and (9) requiring Goodman to keep track of every task he performed,
which was demeaning and had never been required of any other employee.
       Goodman also submitted a declaration from Craig Snyder, a psychologist who had
performed a forensic psychological evaluation of Goodman. Dr. Snyder opined
Goodman was not “in any measurable way, embellishing or malingering his clinical
symptoms” and his “psychological health would have seriously deteriorated” if he had
continued to work “under the distressing and hostile conditions that he reported.” Snyder
further opined, “if the ‘average employee’ were subjected to these same conditions they
would, with great certainty, likely develop an impairing psychiatric condition.”
              c. Raytheon’s reply
       Raytheon argued most of the age-related comments described in Goodman’s
declaration were contradicted by his deposition testimony and thus failed to create a

                                            9
triable issue of material fact. Raytheon further contended, even if the statements in
Goodman’s declaration were not disregarded, none raised a triable issue of fact whether
Goodman had suffered age-based discrimination or harassment. For example, many
comments were made years before Goodman decided to retire and, in any event, failed to
undermine the evidence (and Goodman’s admissions) that his performance had been
declining.
              d. Goodman’s surreply
       In a surreply Goodman accused Raytheon of mischaracterizing the law and the
evidence, contended he had not conceded he had performed poorly and reiterated many
of his previous arguments. Additionally, citing to testimony from his deposition taken
                                   7
after his opposition had been filed, Goodman argued further evidence of the
discrimination he faced was (1) being told by senior managers, when he applied for a
position in radar technology, that they were surprised he was given an interview because
they “thought they were getting somebody younger”; and (2) other long-term employees
who were close to retirement had discovered their jobs were posted online as open
positions.
              e. The trial court’s ruling
       The trial court granted summary judgment in favor of Raytheon, finding the
evidence insufficient to establish a triable issue of material fact that Goodman had been
constructively discharged, and, even if it did, the evidence was insufficient to
demonstrate a triable issue of material fact that age discrimination was a substantial
factor in his constructive termination or that Raytheon would not have had a legitimate
business reason to terminate Goodman if he had not voluntarily retired. As for
Goodman’s age-based harassment claim, the court found any “less than courteous”


7      When Goodman filed his opposition in March 2012, he also sought a continuance
of the April 3, 2012 summary judgment hearing date to obtain discovery on a new theory
to oppose Raytheon’s motion. The continuance was granted. Although the new theory
was apparently abandoned, Goodman’s surreply relies on testimony from his deposition
taken in January 2013.

                                             10
treatment of Goodman by Alpough “was due to dissatisfaction with [Goodman’s] work”
and was not based on Goodman’s membership in the protected class. The court found
Goodman’s retaliation claim without merit because Goodman had failed to address the
claim in his opposition papers or to clarify what complaints he had made to human
resources and had testified at his deposition he did not recall telling anyone in human
resources his age was being used against him. The court further found no triable issues
of material fact with respect to Goodman’s claims for wrongful termination in violation
of public policy because there was no evidence Goodman had been constructively
discharged or that, if he had, it was due to any protected activity. Finally his claims for
breach of express and implied-in-fact contracts not to terminate without good cause failed
because he was an at-will employee.
                                      DISCUSSION
       1. Standard of Review
       A motion for summary judgment is properly granted only when “all the papers
submitted show that there is no triable issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)
We review a grant of summary judgment de novo and decide independently whether the
facts not subject to triable dispute warrant judgment for the moving party as a matter of
law. (Schachter v. Citigroup, Inc. (2009) 47 Cal.4th 610, 618; Intel Corp. v. Hamidi
(2003) 30 Cal.4th 1342, 1348.) The evidence must be viewed in the light most favorable
to the nonmoving party. (Ennabe v. Manosa (2014) 58 Cal.4th 697, 703; Schachter, at
p. 618.)
       When a defendant moves for summary judgment in a situation in which the
plaintiff would have the burden of proof at trial by a preponderance of the evidence, the
defendant may, but need not, present evidence that conclusively negates an element of
the plaintiff’s cause of action. Alternatively, the defendant may present evidence to
“‘show[] that one or more elements of the cause of action . . . cannot be established’ by
the plaintiff.” (Aguilar v. Atlantic Richfield, Co. (2001) 25 Cal.4th 826, 853; see Code
Civ. Proc., 437c, subd. (p)(2).) “‘“The moving party bears the burden of showing the

                                             11
court that the plaintiff “has not established, and cannot reasonably expect to establish,”’
the elements of his or her cause of action.”’” (Ennabe v. Manosa, supra, 58 Cal.4th at
p. 705; accord, Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 720 [same]; Kahn
v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1002-1003 [“the defendant
must present evidence that would preclude a reasonable trier of fact from finding that it
was more likely than not that the material fact was true [citation], or the defendant must
establish that an element of the claim cannot be established, by presenting evidence that
the plaintiff ‘does not possess and cannot reasonably obtain, needed evidence’”].) Once
the defendant’s initial burden has been met, the burden shifts to the plaintiff to
demonstrate, by reference to specific facts, not just allegations in the pleadings, there is a
triable issue of material fact as to the cause of action. (Code of Civ. Proc., § 437c,
subd. (p)(2); Aguilar, at p. 850.)
       A defendant may also move for summary judgment on the ground there is an
affirmative defense to the action. (Code Civ. Proc., § 437c, subds. (o)(2), (p)(2).) Once
the defendant meets the burden of establishing all the elements of the affirmative defense,
the burden shifts to the plaintiff to show there is one or more triable issues of material
fact regarding the defense. (Jessen v. Mentor Corp. (2008) 158 Cal.App.4th 1480, 1484-
1485 [when a defendant moves for summary judgment, “the burden shifts to the plaintiff
to show there is one or more triable issues of material fact regarding the defense after the
defendant meets the burden of establishing all the elements of the affirmative defense”];
Mirzada v. Department of Transportation (2003) 111 Cal.App.4th 802, 806-807 [once
defendant establishes the existence of an affirmative defense, burden on summary
judgment shifts to the plaintiff to produce evidence establishing a triable issue of material
fact refuting the defense]; see Huynh v. Ingersoll-Rand (1993) 16 Cal.App.4th 825, 830.)
        2. The Age Discrimination Claim
              a. Governing law
       FEHA prohibits an employer from, among other things, discriminating against a
person on the basis of age in compensation, terms, conditions or privileges of
employment. (§ 12940, subd. (a); see § 12941 [Legislature “reaffirms and declares its

                                              12
intent that the courts interpret the state’s statutes prohibiting age discrimination in
employment broadly and vigorously, in a manner comparable to prohibitions against sex
and race discrimination”].) “The prohibition is often restated in judicial opinions as a
requirement that the discriminatory action result in ‘adverse employment action.’”
(Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th
359, 374.)
       Discriminatory intent is a necessary element of a discrimination claim. (See
§ 12940, subd. (a); Jones v. Department of Corrections & Rehabilitation (2007)
152 Cal.App.4th 1367, 1370 [plaintiff’s claim based on a disparate treatment theory
“requires a showing that the employer acted with discriminatory intent”]; see also Clark
v. Claremont University Center (1992) 6 Cal.App.4th 639, 662; Mixon v. Fair
Employment & Housing Com. (1987) 192 Cal.App.3d 1306, 1316.) In addition, “there
must be a causal link between the employer’s consideration of a protected characteristic
and the action taken by the employer.” (Harris v. City of Santa Monica (2013)
56 Cal.4th 203, 215.) Moreover, to “more effectively ensure[] that liability will not be
imposed based on evidence of mere thoughts or passing statements unrelated to the
disputed employment decision,” a plaintiff must demonstrate “discrimination was a
substantial motivating factor, rather than simply a motivating factor.” (Id. at p. 232; see
DeJung v. Superior Court (2008) 169 Cal.App.4th 533, 551 (DeJung) [“proof of
discriminatory animus does not end the analysis of a discrimination claim. There must
also be evidence of a causal relationship between the animus and the adverse
employment action”].)
       A plaintiff may prove his or her discrimination case by direct or circumstantial
evidence, or both. (Morgan v. Regents of University of California (2000) 88 Cal.App.4th
52, 67.) “Direct evidence is evidence which proves a fact without inference or
presumption.” (Trop v. Sony Pictures Entertainment, Inc. (2005) 129 Cal.App.4th 1133,
1146-1149; see DeJung, supra, 169 Cal.App.4th at p. 550; see generally Evid. Code,
§ 410 [“‘direct evidence’ means evidence that directly proves a fact, without an inference
or presumption, and which in itself, if true, conclusively establishes that fact”].) Direct

                                              13
evidence of discrimination generally takes the form of an admission by a supervisor or
other decisionmaker that an adverse employment action (hiring, firing, suspension or the
like) was based on a protected characteristic (Trop, at p. 1147)—statements to the effect,
“You are too old to do the job.” (See DeJung, p. 550 [“‘Ted’s a great guy, but we’re
looking for someone younger’”].)
       Because direct evidence of intentional discrimination is rare and most
discrimination claims must usually be proved circumstantially, in FEHA employment
cases California has adopted the three-stage burden-shifting test established by the United
States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 [93
S.Ct. 1817, 36 L.Ed.2d 668]. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 356-
357 (Guz ); see Harris v. City of Santa Monica, supra, 56 Cal.4th at p. 214.) “[A]
plaintiff has the initial burden to make a prima facie case of discrimination by showing
that it is more likely than not that the employer has taken an adverse employment action
based on a prohibited criterion. A prima facie case establishes a presumption of
discrimination. The employer may rebut the presumption by producing evidence that its
action was taken for a legitimate, nondiscriminatory reason. If the employer discharges
this burden, the presumption of discrimination disappears. The plaintiff must then show
that the employer’s proffered nondiscriminatory reason was actually a pretext for
discrimination, and the plaintiff may offer any other evidence of discriminatory motive.
The ultimate burden of persuasion on the issue of discrimination remains with the
plaintiff.” (Harris, at p. 215; Guz, at pp. 354-356.) “The specific elements of a prima
facie case may vary depending on the particular facts. [Citations.] Generally, the
plaintiff must provide evidence that (1) he [or she] was a member of a protected class,
(2) he [or she] was qualified for the position he [or she] sought or was performing
competently in the position he [or she] held, (3) he [or she] suffered an adverse
employment action, such as termination, demotion, or denial of an available job, and
(4) some circumstance suggests discriminatory motive.” (Guz, at p. 355.)
       An employer moving for summary judgment on a FEHA cause of action may
satisfy its initial burden of proving a cause of action has no merit by showing either that

                                             14
one or more elements of the prima facie case “is lacking, or that the adverse employment
action was based on legitimate nondiscriminatory factors.” (Cucuzza v. City of Santa
Clara (2002) 104 Cal.App.4th 1031, 1038; see Guz, supra, 24 Cal.4th at pp. 356-357;
Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 150.) Once the
employer sets forth a nondiscriminatory reason for the decision, the burden shifts to the
plaintiff to produce “‘substantial responsive evidence’ that the employer’s showing was
untrue or pretextual.” (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th
1718, 1735; accord, Slatkin v. University of Redlands (2001) 88 Cal.App.4th 1147, 1156;
see also Guz, at p. 357.) “[A]n employer is entitled to summary judgment if, considering
the employer’s innocent explanation for its actions, the evidence as a whole is insufficient
to permit a rational inference that the employer’s actual motive was discriminatory.”
(Guz, at p. 361; see also Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th 1088, 1097-
1098 [if a defendant employer’s motion for summary judgment “relies in whole or in part
on a showing of nondiscriminatory reasons for the [adverse employment action], the
employer satisfies its burden as moving party if it presents evidence of such
nondiscriminatory reasons that would permit a trier of fact to find, more likely than not,
that they were the basis for the [adverse action]. [Citations.] To defeat the motion, the
employee then must adduce or point to evidence raising a triable issue, that would permit
a trier of fact to find by a preponderance that intentional discrimination occurred”].)
           b. Constructive discharge as an adverse employment action
       “Constructive discharge” occurs “when the employer coerces the employee’s
resignation, either by creating working conditions that are intolerable under an objective
standard, or by failing to remedy objectively intolerable working conditions that actually
are known to the employer.” (Mullins v. Rockwell Internat. Corp. (1997) 15 Cal.4th 731,
737.) The conditions prompting resignation must be “sufficiently extraordinary and
egregious to overcome the normal motivation of a competent, diligent, and reasonable
employee to remain on the job.” (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238,
1246; see id. at p. 1247 [“[i]n order to amount to constructive discharge, adverse working
conditions must be unusually ‘aggravated’ or amount to a ‘continuous pattern’ before the

                                             15
situation will be deemed intolerable”].) “[A] poor performance rating or a demotion,
even when accompanied by reduction in pay, does not by itself trigger a constructive
discharge.” (Ibid.) The resignation must be coerced, not merely a rational option chosen
by the employee. (Vasquez v. Franklin Management Real Estate Fund, Inc. (2013)
222 Cal.App.4th 819, 827 [“An employee may not simply ‘“quit and sue,’” claiming to
have been constructively discharged. [Citations.] The facts must support a finding that
the resignation was ‘coerced,’ rather than ‘simply one rational option for the
employee.’”]; Holmes v. Petrovich Development Co. LLC (2011) 191 Cal.App.4th 1047,
1062.) Even if coerced, however, standing alone “constructive discharge is neither a tort
nor a breach of contract, but a doctrine that transforms what is ostensibly a resignation
into a firing. Even after establishing constructive discharge, an employee must
independently prove a breach of contract or tort in connection with employment
termination in order to obtain damages for wrongful discharge.” (Turner, at p. 1251.)
       Ordinarily, the focus in a FEHA cause of action is whether discriminatory animus
motivated an employer’s termination, failure to promote or demotion of an employee, or
the taking of another specific adverse employment action that materially affects the
terms, conditions or privileges of employment. However, when, as here, constructive
discharge is the alleged adverse employment action (see Steele v. Youthful Offender
Parole Bd. (2008) 162 Cal.App.4th 1241, 1253 [constructive discharge, like actual
discharge, is adverse employment action]), no single act or decision is at issue; and the
evidence of the employer’s motive or intent—be it direct or circumstantial—must
necessarily be evaluated with respect to its causal relationship to each of the various
working conditions that purportedly combined to create an objectively intolerable
working situation. (See Trop v. Sony Pictures Entertainment, Inc., supra,
129 Cal.App.4th at pp. 1147-1149 [allegedly discriminating comments were neither
temporally nor causally related to plaintiff’s discharge].)
       Here, much of Goodman’s proffered evidence of age-based animus relates to
conduct or comments made several years before Alpough became director of the supply
chain group in July 2009. Moreover, it is clear from Goodman’s declaration the

                                             16
purportedly intolerable actions or conditions he claimed forced his decision to retire—the
only adverse employment action alleged—began under Alpough’s tenure. For example,
Goodman asserted in his declaration he did not begin experiencing anxiety and
depression because of conditions at work until approximately July 2009, one year before
he retired. To be sure, Goodman contended he had suffered from stress-related neck and
back pain during the last two years of his employment. Nevertheless, earlier in the same
declaration Goodman asserted he was “held out as a model employee and assigned to
mentor two of the younger material managers” between 2008 and 2009 and received an
achievement award in June 2009 from Nourrcier recognizing his special contributions
toward meeting company goals. Thus, whatever pain he may have experienced and
whatever adverse comments may have been made regarding his performance earlier in
his employment, for purposes of his claims predicated on constructive discharge as
Raytheon’s adverse employment action, the trial court properly focused on the period
beginning July 2009.
           c. Raytheon satisfied its initial burden on summary judgment with evidence its
              treatment of Goodman was justified by serious performance issues, a
              legitimate, nondiscriminatory reason for its actions
       Whether viewed as being directed to an element of Goodman’s prima facie case of
discrimination or as an affirmative defense, Raytheon presented abundant evidence the
quality of Goodman’s work had been deteriorating and his 2009 performance review and
placement on a performance improvement plan (and Alpough’s concomitant
dissatisfaction, albeit perhaps not his mode of expression) were justified: As early as
2007 Raytheon had identified problems with Goodman’s work. Although Goodman’s
2007 needs improvement rating was ultimately changed to meets expectations because it
did not reflect input from all the managers he had supported that year, Raytheon validated
during its investigation that the quality of Goodman’s performance on the Millennium
program, upon which the rating had been based, did not meet expectations. For example,
two managers on the program reported Goodman’s work needed to be rechecked, his
estimates “were not even close” and he was “non value-added.” Although Nourrcier had


                                            17
indicated Goodman exceeded expectations when he began working on the K2 program
toward the end of 2007, she also noted the program had a low “level of pressure.”
Additionally, although Goodman received a meets expectations rating in 2007, Nourrcier
noted in Goodman’s review that he was not proactive, a significant problem in 2009
when the K2 program “ramped up.” In connection with his 2009 performance, Goodman
conceded in his deposition he had made stupid errors of arithmetic and Blomer was
frequently in his office because of his mistakes.
       Thus, even if we assume Goodman could establish he had been constructively
discharged—an adverse employment action—Raytheon satisfied its initial burden on
summary judgment. The burden then shifted to Goodman to produce substantial
responsive evidence (direct or circumstantial) from which a reasonable trier of fact could
conclude that Raytheon’s showing Goodman’s performance had deteriorated was
pretextual and that his treatment was the product of discriminatory, age-related animus.
(Johnson v. United Cerebral Palsy/Spastic Children’s Foundation (2009)
173 Cal.App.4th 740, 755; Martin v. Lockheed Missiles & Space co., supra,
29 Cal.App.4th at p. 1735.) Goodman failed to meet this burden.
           d. Goodman failed to produce specific, substantial responsive evidence
              Alpough’s treatment of him and the criticism of his performance were
              motivated by discriminatory animus
       Generally in cases involving affirmative adverse employment actions, pretext may
be demonstrated by showing “‘the proffered reason had no basis in fact, the proffered
reason did not actually motivate the discharge, or, the proffered reason was insufficient to
motivate discharge.’” (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 224; see
also Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1005 [pretext
may be shown by “‘such weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the employer’s proffered legitimate reasons for its action that a
reasonable factfinder could rationally find them “unworthy of credence,” [citation], and
hence infer “that the employer did not act for [the asserted] non-discriminatory
reasons”’”].) However, simply showing the employer is lying, without some evidence of


                                             18
discriminatory motive, is not enough to infer discriminatory animus. “‘The pertinent
[FEHA] statutes do not prohibit lying, they prohibit discrimination.’” (Guz, supra,
24 Cal.4th at p. 361; see also Slatkin v. University of Redlands, supra, 88 Cal.App.4th at
p. 1156.) The record here contains no direct evidence and little, if any, circumstantial
evidence that would support a finding of discrimination.
              i. Goodman presented no direct evidence his “intolerable working
                 conditions” were the product of discrimination
       Relying on language in federal employment discrimination cases, Goodman
argues direct evidence of discrimination necessarily defeats an employer’s motion for
summary judgment. However, none of the evidence Goodman proffered in his
opposition to the summary judgment motion, even those portions of his declaration that
were inconsistent with his deposition testimony, constitutes direct evidence the
purportedly intolerable conditions of his employment were the product of, and causally
related to, discriminatory animus. And, as discussed in the following section of this
opinion, even when combined with the other evidence he advanced, Goodman’s showing
was insufficient to permit a trier of fact to find by a preponderance of the evidence that
intentional discrimination occurred in this case. (See Guz, supra, 24 Cal.4th at p. 361.)
       Goodman’s first category of evidence was comprised of “ageist comments
indicating a preference for younger employees,” including hearing “management use the
expression ‘young blood’ to describe efforts to refresh or invigorate their departments,”
with specific examples from 2006, and references to Goodman in 2007 as a “senior guy”
or “super senior.” To the extent any of those comment occurred after July 2009, they are
not direct evidence that the remedial steps Raytheon took were the product of
discriminatory intent. Use of senior or super senior, standing alone, is not a negative,
age-related comment. Senior as likely describes a person with seniority, like Goodman,
as it does an elderly person. Indeed, Goodman referred to himself as a “senior guy” at
least three times in his deposition and stated in his declaration his “seniority and years of
service remained the same prior and after the” merger between Hughes and Raytheon.
Untethered to a specific employment decision or decisionmaker, the “young blood”


                                             19
comments at best were “stray remarks” that “do not constitute ‘direct evidence’ of
discriminatory animus.” (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 539.)
       Goodman also identified as direct evidence of intentional discrimination Duffey’s
inquiry in early 2007 whether Goodman intended to retire. According to Goodman
Duffey “appeared surprised, shook her head, and ended the meeting.” That event
occurred more than two years before Alpough joined the supply chain group and had no
causal relationship to the conditions of employment Goodman has identified as forcing
him to retire. In addition, Goodman’s subjective interpretation of Duffey’s body
language and facial expression is simply not direct evidence of age discrimination.
Similarly, human resources’ purported failure to investigate his complaints Raytheon was
trying to force him to retire on the basis of age, although arguably circumstantial
evidence in support of Goodman’s claim, is not direct evidence of discrimination.
       Alpough’s announcement he was going to take the supply chain group in a “new
direction” and it would no longer be “business as usual,” if anything, is circumstantial
evidence that Goodman was not the target of age discrimination, but rather that Alpough
believed there were systemic problems within the group: Alpough, in his brusque
manner, demanded everyone in the group change the way they had been performing.
Alpough’s comments also put into context additional statements Goodman contends are
direct evidence of discrimination—accusations by Alpough Goodman was “stuck in the
past” and “too slow” and Alpough needed someone with “more energy” handling the job,
as well Blomer telling Goodman he needed to change the way he was doing my work,
warning him “not to be a “dinosaur,” and noting dinosaurs “had become extinct.” Putting
aside the inconsistencies in his testimony, even if made as Goodman now contends, those
comments would be applicable regardless of an employee’s chronological age—for
example, to a 37-year-old employee who had been with the company for 12 years, but
was no longer enthusiastic, motivated to perform diligently or willing to embrace a
changing workplace or adapt to improve a support group that had been not functioning
optimally. Indeed, Goodman admitted during his deposition he may have appeared to
lack a sense of urgency. Extrapolating from these comments that Goodman was being

                                             20
criticized because of his age, not performance deficiencies, requires inference and
presumptions that render these statements circumstantial evidence at best, and very weak
circumstantial evidence at that.
          Alpough’s direction to Goodman in early 2010 to find other work because
Alpough had no work for him in space systems, while at the same time purportedly
refusing to help him find another position within the company, was fully consistent with
the reported deficiencies in his performance, and thus was not evidence, either direct or
circumstantial, of pretext or discriminatory intent. Similarly, absent any specific
statements about Goodman’s age, the remedial steps taken as a result of his poor job
performance (placement on a performance improvement plan and required tracking of
daily tasks) provide no evidence of pretext or unlawful intent. Moreover,
notwithstanding Goodman’s assertion Alpough refused to help him find work, Goodman
also advanced as direct evidence of intentional discrimination Alpough’s statement to
him, “I have already spoken to a number of directors. They don’t want anything to do
with you. They want somebody younger that would be on a career path.” If the adverse
employment action underlying Goodman’s claims was the failure to appoint him to a
position in any of those directors’ business units, those statements might well be
sufficient, without more, to meet Goodman’s burden in opposing summary judgment.
But, under a constructive discharge theory with Alpough’s treatment of Goodman as the
fulcrum, they are simply too remote. Moreover, Goodman concedes, when he asked
Alpough point blank whether he was going to be laid off, Alpough assured him he would
not be.
          Finally, Goodman argues he was replaced by a much younger man, 30 year-old
Juan Orozco, which he claims is direct evidence of Raytheon’s discriminatory intent.
Orozco had been hired during Goodman’s last year of employment and had become his
supervisor. Orozco, however, testified he only took over Goodman’s responsibilities
until a permanent replacement was hired six months later in January 2011. Although
Orozco did not know the age of the replacement employee, a declaration from human
resources manager Mark Shortt stated she was 53 years old. Whatever evidentiary value

                                             21
there may be in Orozco’s temporary assumption of Goodman’s duties, it is, at best, weak
circumstantial evidence of discriminatory animus. (See Guz, supra, 24 Cal.4th at
pp. 366-368.)
                ii. Goodman failed to present specific, substantial circumstantial evidence
                    of discriminatory animus
       To demonstrate pretext, circumstantial evidence ““must be ‘specific’ and
‘substantial’ in order to create a triable issue with respect to whether the employer
intended to discriminate” on an improper basis.’” (Batarse v. Service Employees
Internat. Union, Local 1000 (2012) 209 Cal.App.4th 820, 834.) The evidence proffered
by Goodman—that which he mislabeled “direct,” discussed above, as well as that
presented as circumstantial, when considered as a whole—is insufficient to permit a trier
of fact to find by a preponderance of the evidence that intentional discrimination caused
his constructive discharge. (See Guz, supra, 24 Cal.4th at p. 361.)
       In addition to the evidence reviewed in the preceding section, Goodman contends
an inference of discrimination may be shown by an employer’s deviation from ordinary
personnel procedures in the aggrieved employee’s case. (See Kotla v. Regents of
University of California (2004) 115 Cal.App.4th 283, 294, fn. 6.) He argues the
requirement that he record every task he performed daily was neither sanctioned by any
written human resources policy or procedure nor required of any other employee.
However, the deposition testimony by Mark Shortt, the person Raytheon designated as its
person most knowledgeable about human resources policies and procedures, does not, as
Goodman suggests, demonstrate Raytheon had deviated from ordinary personnel
procedures by requiring Goodman to complete this task. Shortt, who began working at
Raytheon in May 2010, a few months before Goodman retired, testified he personally had
never asked an employee to fill out a time-tracking form and was not aware of other
employees asked to do so, but clarified, “I think the tool you’re referring to has been used
before. I just have not personally used it. So that was the question. But there’s not set
policy around—I—again, think it goes back to the manager and human resources person



                                             22
deciding what’s best for that employee, what tools and resources would continue to help
them develop and improve on areas . . . in a performance improvement plan.”
       Citing Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 479 (Flait)
for the proposition pretext may be inferred from “the terminated employee’s job
performance before termination,” Goodman contends a triable issue of material fact of
pretext as to his 2009 evaluation is demonstrated by the fact he had either met or
exceeded expectations in his previous 37 years of annual reviews. Flait, however,
identified the terminated employee’s job performance prior to termination as just one of
several factors considered together from which pretext might be inferred: “Pretext may
also be inferred from the timing of the company’s termination decision, by the identity of
the person making the decision, and by the terminated employee’s job performance
before termination.” (Ibid.; accord, Medina v. Multaler, Inc. (C.D.Cal 2007)
547 F.Supp.2d 1099, 1130.) In that case Stuart Flait was terminated purportedly
“because of his attitude toward company policy.” (Flait, at p. 472.) Flait, however, had
recently complained to John Pistner, “the sole person charged with the decision to
terminate Flait’s employment,” about sexually offensive comments Pistner had been
making to one of Flait’s subordinates. The court held a reasonable trier of fact could
conclude from evidence Flait had last complained a few months before Pistner decided to
fire him, Flait had increased sales by 60 percent immediately prior to his termination,
positive appraisals of his performance except for a “few verbal criticisms of his methods”
and indication there was a possibility Flait would be promoted that the company’s
articulated reasons for terminating Flait’s employment were “not worthy of credence.”
(Id. at p. 480; see California Fair Employment & Housing Com. v. Gemini Aluminum
Corp. (2004) 122 Cal.App.4th 1004, 1024 [substantial evidence of employer’s lack of
credibility and company founder’s authority and attitude combined with employee’s
excellent work record and timing of termination one week after he had complained his
suspension was unfair because of religious needs would be sufficient to show pretext if
employer’s showing had been sufficient to shift burden to employee].)



                                            23
       Here, in contrast, the positive work evaluations were not made immediately prior
to a termination decision. And, as discussed, there is ample evidence Goodman’s recent
performance was problematic, not stellar as was the employee’s in Flait. Goodman’s
contention his performance was not objectively below average, citing Nourrcier’s praise
of him in June 2009 and positive statements in his 2009 review and some coworker
evaluations that year, is misleading. The coworker evaluation forms and the annual
performance reviews ask the “assessor” to identify both key strengths and development
needs. Accordingly, one would necessarily expect to find affirmative statements in every
review regardless of the overall rating. For example, Nourrcier’s coworker evaluation for
the year 2009, from which Goodman quotes, gave him a qualitative rating of only 4
notwithstanding it contained positive statements, including Goodman was “always
accessible and responsive” and had a “[h]igh degree of ethics and integrity.” Even a
coworker evaluation by Brenda Cleary, which gave Goodman a qualitative rating of 2 for
2009, noted his key strength was “[k]nowledge of program ops.”
       Finally, Goodman contends pretext may be proved using comparative evidence.
(See Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th 803, 816.) He argues
Alpough testified he had concerns about the performance of other people who attended
the meetings during which Goodman was criticized, but none of them received a needs
improvement rating that year. That testimony falls short of meeting Goodman’s burden
of demonstrating he was treated differently from other employees who were similarly
situated in all relevant respects. (See id. at p. 817 [“comparative evidence of pretext . . .
[is] evidence that [plaintiff] was treated differently from others who were similarly
situated”]; see generally Chin et al., Cal. Practice Guide: Employment Litigation (The
Rutter Group 2013) ¶ 7:466, p. 7-84.9 (rev. # 1, 2011) [“The critical factor for
comparative evidence is that the compared employees must be similarly situated in all
respects to plaintiff. The burden is on plaintiff to make this showing.”].)
       In sum, even if we assume, contrary to the trial court’s ruling, Goodman could
prove the conditions of his employment were “intolerable” and he was constructively
terminated, he failed to offer specific, substantial evidence that would permit a finding

                                              24
the business justification for those conditions advanced by Raytheon were pretextual.
(See Morgan v. Regents of University of California, supra, 88 Cal.App.4th at p. 69.) The
mix of vague circumstantial evidence, subjective interpretation and inference and surmise
offered in his opposition papers failed to raise a triable issue that Raytheon had acted
with discriminatory animus. (See Horn v. Cushman & Wakefield Western, Inc. (1999)
72 Cal.App.4th 798, 816 [“an employee’s subjective personal judgments of his or her
competence alone do not raise a genuine issue of material fact”]; see also Hersant v.
Department of Social Services, supra, 57 Cal.App.4th at p. 1005 [to defeat summary
judgment after employer has presented substantial evidence of a legitimate
nondiscriminatory reason for its decision, “[i]t is not enough for the employee simply to
raise triable issues of fact concerning whether the employer’s reasons for taking the
adverse action were sound. What the employee has brought is not an action for general
unfairness but for [racial] discrimination”].) Goodman was unable to present “evidence
supporting a rational inference that intentional discrimination, on grounds prohibited by
[FEHA] was the true cause of [Raytheon’s] actions.” (Guz, supra, 24 Cal.4th at p. 361.)
Summary judgment was properly granted as to the discrimination cause of action.
       3. Goodman’s Harassment/Hostile Work Environment Claim Fails Because He
          Did Not Present Evidence of Age-related Conduct Creating an Abusive
          Working Environment
       Pursuant to section 12940, subdivision (j)(1), it is unlawful for “an employer . . .
or any other person, because of . . . age . . . to harass an employee . . . .” “‘[A]n employee
claiming harassment based upon a hostile work environment must demonstrate that the
conduct complained of was severe enough or sufficiently pervasive to alter the conditions
of employment and create a work environment that qualifies as hostile or abusive to
employees because of their [age].” (Lyle v. Warner Brothers Television Productions
(2006) 38 Cal.4th 264, 279 [discussing sexual harassment claim]; see Cozzi v. County of
Marin (N.D.Cal. 2011) 787 F.Supp.2d 1047, 1069 [plaintiff must show he or she “was
subjected to verbal or physical conduct of an age-related nature, that the conduct was
unwelcome, and that the conduct was sufficiently severe or pervasive to alter the


                                             25
conditions of [his or] her employment and create an abusive work environment”].) As
with other harassment claims, to be pervasive, the offensive conduct must consist of
“more than a few isolated incidents.” (Lyle, at p. 284; see Hughes v. Pair (2009) 46
Cal.4th 1035, 1043 [“[t]here is no recovery ‘for harassment that is occasional, isolated,
sporadic, or trivial’”].)
       For purposes of his discrimination claim, we accepted without deciding that a jury
could find Goodman faced objectively intolerable working conditions following
Alpough’s appointment as director of the space systems supply chain in July 2009 so his
retirement could be seen as involuntary. Goodman’s constructive discharge theory,
however, was based primarily on those actions taken by Raytheon to remedy his poor job
performance—criticism of his work, placement on a performance improvement plan that
made him ineligible for annual salary increases, and the requirement that he record his
daily activities and the time taken to complete each task—not the often ambiguous oral
comments he identified (that is, references to the need for “young blood” and his own
lack of energy). As discussed, Goodman failed to present specific and substantial
evidence that would permit a finding the legitimate business justification advanced by
Raytheon for imposing those remedial requirements was pretextual. Accordingly,
however unpleasant those conditions may have been, they were not part of an abusive
work environment created because of Goodman’s age and are irrelevant to his claim of
harassment. What is left—largely isolated comments regarding (perhaps) age combined
with Alpough’s generally disrespectful management style—is insufficient to establish
conduct severe enough or sufficiently pervasive to be actionable. (See Yanowitz v.
L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1054-1055 [“[m]inor or relatively trivial
adverse actions or conduct by employers or fellow employees that, from an objective
perspective, are reasonably likely to do no more than anger or upset an employee cannot
properly be viewed as materially affecting the terms, conditions, or privileges of
employment and are not actionable”]; Lyle v. Warner Brothers Television Productions,
supra, 38 Cal.4th at p. 292; Brennan v. Townsend & O’Leary Enterprises, Inc. (2011)
199 Cal.App.4th 1336, 1353-1354.)

                                            26
       4. Goodman’s Retaliation Claim Fails Because He Presented No Evidence He
          Had Engaged in Protected Activity That Led to an Adverse Employment Action
       To establish a prima facie case of retaliation under FEHA, a plaintiff must show
he or she engaged in protected activity, the employer subjected the employee to an
adverse employment action and a causal link existed between the protected activity and
the employer’s action. (Yanowitz v. L’Oreal USA, Inc., supra, 36 Cal.4th at p. 1042; see
Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 287-288.) Once an
employee establishes a prima facie case, the burden shifts to the employer to offer a
legitimate, nonretaliatory reason for the adverse employment action. (Yanowitz, at
p. 1042 [adopting the burden-shifting analysis of McDonnell Douglas Corp. v. Green,
supra, 411 U.S. at pp. 802-805].) If the employer produces a legitimate business reason
for the adverse employment action, “the presumption of retaliation ‘“‘drops out of the
picture,’”’ and the burden shifts back to the employee to prove intentional retaliation.”
(Yanowitz, at p. 1042; see also Scotch v. Art Institute of California (2009)
173 Cal.App.4th 986, 1004.)
       In his complaint Goodman alleged “his complaints about discrimination and
harassment because of his age were a factor in defendant’s constructive termination of his
employment.” Yet at his deposition Goodman could not remember ever telling anyone at
Raytheon’s human resources department that age was being used against him—testimony
highlighted by the trial court in granting Raytheon’s motion as to this cause of action due
to Goodman’s failure to present evidence he had, in fact, engaged in protected activity, as
well as his inability to demonstrate a causal connection between any complaints he had
made and his negative performance ratings and the consequences that followed those
ratings. In its respondent’s brief Raytheon directed this court to evidence before the trial
court confirming its understanding of the record.
       Goodman does not directly respond to these points in either his opening or reply
brief, arguing only the evidence of pretext and discrimination advanced in connection
with his first cause of action also constitutes evidence he experienced retaliation. As we



                                             27
discussed, that evidence is insufficient to create a triable issue of material fact as to
intentional discrimination. It is also insufficient to salvage Goodman’s retaliation claim.
       5. Goodman’s Wrongful Termination Claim Fails for the Same Reason as His
          FEHA Discrimination Claim
       Goodman’s cause of action for wrongful termination in violation of public policy,
although initially based on a claimed violation of Labor Code section 1102.5, is now
grounded on his contentions he was constructively terminated by Raytheon because of his
age and the employment conditions he purportedly found intolerable were not imposed
because of his own deficient performance. For the reasons discussed above, Raytheon
demonstrated it had legitimate, nondiscriminatory business reasons for the remedial steps
it took. Accordingly, as with his discrimination claim, the trial court properly granted
summary judgment on the wrongful termination cause of action.
       6. Goodman’s Breach of Contract Action Also Fails Because Raytheon Had
          Legitimate, Nondiscriminatory Reasons for the Remedial Steps Goodman
          Asserts as a Constructive Discharge
       Labor Code section 2922 establishes a presumption of at-will employment if the
parties have made no express oral or written agreement specifying the length of
employment or the grounds for termination: “An employment, having no specified term,
may be terminated at the will of either party on notice to the other. . . .” The statutory
presumption of at-will employment, however, is subject to limitations. “The statute does
not prevent the parties from agreeing to any limitation, otherwise lawful, on
the employer’s termination rights. [Citation.] [¶] One example of a contractual
departure from at-will status is an agreement that the employee will be terminated only
for good cause [citation], in the sense of ‘“‘a fair and honest cause or reason, regulated by
good faith . . . ,’” as opposed to one that is “trivial, capricious, unrelated to business
needs or goals, or pretextual . . . .”’” (Guz, supra, 24 Cal.4th at pp. 335-336; see Foley v.
Interactive Data Corp. (1988) 47 Cal.3d 654, 677.)
       Although Raytheon’s employee handbook stated all employment with the
company was at-will and there was no written agreement between Raytheon and
Goodman in any way altering the at-will relationship, Goodman asserted, based on his

                                               28
length of employment, his exemplary work record, his merit raises and promotions and a
purported oral assurance of continued employment (from an unnamed person at some
unknown time), there was either an express or implied promise his employment would
not be terminated except for good cause. Even accepting the dubious premise Goodman
raised a triable issue of material fact on this point (see, e.g., Guz, supra, 24 Cal.4th at
p. 342 [“[a]bsent other evidence of the employer’s intent, longevity, raises and
promotions are their own rewards for the employee’s continuing valued service; they do
not, in and of themselves, additionally constitute a contractual guarantee of future
employment security”]), and, as before, assuming without deciding the conditions of his
employment following his deficient performance ratings constituted a constructive
discharge, Raytheon presented extensive evidence it had good cause to impose those
conditions based on its evaluations of Goodman’s work. Because Goodman failed to
present adequate evidence those reasons were pretextual, summary judgment was
properly granted as to his contract claim.
                                       DISPOSITION
       The judgment is affirmed. Raytheon and Alpough are to recover their costs on
appeal.


                                                           PERLUSS, P. J.



       We concur:


                      WOODS, J.



                      ZELON, J.




                                              29
