Filed 4/28/16 White v. LinkedIn Corp. CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


MELINDA WHITE,                                                     B261095

         Plaintiff and Appellant,                                  (Los Angeles County
                                                                   Super. Ct. No. BC515787)
         v.

LINKEDIN CORP.,

         Defendant and Respondent.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Michelle R. Rosenblatt, Judge. Affirmed.
         JML Law, Joseph M. Lovretovich, David F. Tibor and Jennifer A. Lipski for
Plaintiff and Appellant.
         Curley, Hessinger & Johnsrud, Brian L. Johnsrud, Patrick M. Sherman and
Christopher W. Loweth for Defendant and Respondent.


                                    ______________________________
       Plaintiff and appellant Melinda White appeals from the trial court’s grant of
summary judgment for defendant and respondent LinkedIn Corp. (LinkedIn). White
contends triable issues of material fact remain as to whether LinkedIn’s decisions not to
extend her temporary services and hire her as a full-time employee were due to her
pregnancy. We disagree and affirm.
                                    BACKGROUND
       White worked as a contractor for LinkedIn’s University Recruiting Group (URG)
from October 4, 2010, to July 20, 2011, recruiting summer interns, and also sometimes
new college graduates. Although LinkedIn enlisted and supervised her, White was
employed by Comsys, a third party service provider. Comsys and White’s employment
contract listed April 30, 2011, as White’s anticipated termination date, which tracked the
academic year and the decreased recruiting work in the spring. White was an at-will
employee with no guaranteed employment.
       When LinkedIn formed the URG in 2010, it consisted of just two workers, Doris
Tong, the URG leader, who was also a recruiter, and Allen Hom, a contract coordinator;
Joe Riley, Director of Human Resources, managed the URG until August 2010 when
Brendan Browne, Director of Global Talent Acquisition, took over. To expand the URG,
LinkedIn sought workers who lived in the Bay Area, near its Mountain View
headquarters, because it wanted the “small though growing” group to work
collaboratively, interact frequently in person, and be available to meet candidates on-site.
When recruiting White, both Tong and Riley told White the job was in Mountain View
and LinkedIn wanted her on-site. They also testified they told her she would be required
to relocate from her residence in Long Beach to the Bay Area in order to be “converted”
to a full-time position. White testified she told both Tong and Riley she was open to
relocating, and when she accepted the position, White’s “understanding” was that the
contract job “would require [her] to be on-site in Mountain View with the intention of
relocation.”



                                             2
       A month before White started at LinkedIn, she e-mailed a Craigslist advertiser
about a rental condo, writing, I “will be starting a new position with LinkedIn in
Mountain View, which will require me to relocate” and I “plan to relocate mid-Oct or
Nov. 1.” (Italics added.) A few weeks later, however, White wrote to a colleague saying
she was “[n]ot sure if I want to relocate since I really like my life in SoCal, but we’ll
see.” When White started, LinkedIn paid for her lodging during her first month to
facilitate her transition. After the first month, White paid her own travel and lodging
expenses.
       White became pregnant after beginning at LinkedIn and informed Tong of her
pregnancy on February 9, 2011. On February 10, 2011, White told Tong she “would be
inclined to relocate if [she] was converted to full-time status” but that she would not
“relocate unless [she was] converted to regular employment.” According to White,
LinkedIn “needed to give me a reason to relocate, and that was to be full time.”
       A few weeks later, White provided Tong with a doctor’s note stating she could
travel only every other week. Tong honored this restriction. White requested no other
accommodations, including time off to give birth.
       By March, the URG had expanded to include Tey Scott, a rising contract recruiter,
and Jill Perez, a contract coordinator. Tong, Hom, and Scott lived in the Bay Area and
worked out of Mountain View. Tong permitted Perez to live in Southern California and
work from home to care for her two young children because she was “simply scheduling
interviews,” which Scott described as a “non-candidate-facing role.”
       In April, as the academic year was winding down and White’s contract was about
to expire, White began looking for work outside of intern recruiting. On April 28, 2011,
White wrote to Scott, “I sense that the internship hiring is coming to an end (at least I’m
slowing down a bit)” and asked if she could assist Scott “with the NCG [new college
graduate] side of things.” Scott worked with Tong to provide White with some additional
work. Tong also worked with others to procure work for White, which extended White’s
contract beyond its anticipated end date of April 30, 2011.



                                              3
       On May 6, 2011, White wrote to a potential recruit that LinkedIn had “no intention
of converting me from contract status to FTE [full-time employee] unless I relocate to the
Bay, so I am not sure how much longer they plan to keep me.” (Italics added.) Also in
May, White and Scott met to discuss how White could contribute more to LinkedIn.
According to White, Scott told her LinkedIn “want[s] people in Mountain View,” and
“you’re based in L.A. and your priorities will change.” White admits she was not aware
of any “FT [full-time] head count,” referring to available full-time positions, at this time.1
       On June 27, 2011, White wrote to a colleague: “One of the road blocks for
[LinkedIn] in converting me to FT [full-time] status is that I haven’t relocated to the Bay
Area. . . . [¶] I worked remotely for Yahoo and Microsoft within the last three years, so I
have my own perspective. However, LI operates differently, so it would be terrific to get
your perspective.” (Italics added.)
       On June 30, 2011, LinkedIn converted Hom from a contract coordinator to a full-
time recruiter. When asked in her deposition whether she thought LinkedIn had an
obligation to continue her services from early July 2011 to mid to late August 2011, even
if there were not enough work for her, White responded, “I think they’re obligated to.”
She explained, “they converted Allen [Hom], so there was enough work for him. There
should have been enough work for me.” In addition, according to her, LinkedIn was
“anticipating quite a bit of work as they were scaling.” (Italics added.)
       On July 6, 2011, Tong informed White that LinkedIn would not be converting her
to a full-time employee. Tong testified at her deposition that White was not converted
because White’s contract had expired, work for White was dwindling, and White refused
to relocate. When Tong informed White, Tong said she would not be converted because
work was slowing down and there was no full-time “headcount” at the moment, but she
should “check back in the fall.” White testified she believed Tong was sincerely leaving
the door open for her to return.



       1 “Headcount” is the number of employees paid through a company’s payroll and
does not include workers who are paid wages outside of the payroll.

                                              4
         On July 7, 2011, White wrote to colleagues, “There is no headcount to convert me
to FT [full-time] status.” White sent several other similarly worded e-mails.
         On July 18, 2011, White accessed an internal database used to prepare job
postings and saw an entry for a “pending” University Programs Manager position.
Although White testified she understood that “pending” meant not yet approved, she e-
mailed a superior requesting she be considered for the position. According to White,
Tong immediately informed her the position was “not something that we’re going to have
open.” Tong then e-mailed Scott, asking her to coordinate removing the post. Scott
responded, “Done—sorry about that; I retracted it. A[w]kward, I’m sure.” Tong and
Scott stated in their declarations that the position was never approved, posted, or filled.
White’s last day was July 20, 2011. Shortly thereafter, Tong ended Perez’s services as
well.
         LinkedIn promoted Scott to Manager of R&D Campus Recruiting on August 1,
2011, replacing Tong as the URG’s leader; Tong became a regular recruiter and no
longer made hiring decisions. Between August 1 to September 8, 2011, Scott contracted
three new recruiters, who lived in the Bay Area, and contracted Perez as a coordinator
again.
         On August 31, 2011, White e-mailed a potential employer. She attached her
resume and wrote: “It still appears as though I’m working at LinkedIn, but my contract
ended in early August[2] and they have left the door open for me to return depending on
what the circumstance are at a later time — However, as I mentioned, they want me to
relocate at my own expense . . . .” (Italics added.)
         On September 22, 2011, White e-mailed Tong about the possibility of returning to
LinkedIn. Tong responded on October 19, 2011, writing that “[r]egarding the UR team,
it’s a full house. I know you were hoping for better news so I’m sorry.” Tong also stated
in her declaration that before she replied to White’s e-mail, she had also explored



         2 White   admitted her last day of work at LinkedIn was actually July 20, 2011.

                                                5
whether LinkedIn had roles outside of the URG White could pursue, but determined there
were not.
       On July 20, 2012, White filed a California Fair Employment and Housing Act
(Gov. Code, §§12900–12996) (FEHA) complaint with the Department of Fair
Employment and Housing (DFEH) for harassment, denial of a promotion, denial of
accommodation, failure to prevent discrimination or retaliation, retaliation, denial of
pregnancy accommodation, and “discrimination; failure to engage in the interactive
process.”3
       On July 19, 2013, White filed a complaint in the superior court for nine causes of
action (1) sex discrimination; (2) disability discrimination; (3) harassment; (4) failure to
prevent discrimination and harassment; (5) failure to accommodate; (6) failure to engage
in the interactive process; (7) retaliation; (8) wrongful termination; and (9) wrongful
termination in violation of public policy.4 On May 28, 2014, LinkedIn moved for
summary judgment, or in the alternative, summary adjudication. White opposed the
motion, but the court granted it on December 18, 2014. White appealed.
                                       DISCUSSION
       On appeal, White argues a triable issues of material fact remain as to whether
LinkedIn’s purported legitimate reasons for not extending her contract and not converting
her were pretext for its discriminatory animus against her as a pregnant woman. We
disagree.
       I.     Standard of Review
       A trial court must grant summary judgment when no triable issue exists as to any
material fact, entitling the moving party to judgment as a matter of law. (Code Civ.
Proc., § 437c, subd. (c).) To defeat summary judgment, the plaintiff must “ ‘set forth the
specific facts showing that a triable issue of material fact exists as to that cause of action


       3 Although  neither party indicated if, or where, White’s right to sue letter is
contained in the record, LinkedIn does not dispute that White had the right to sue.
       4 On
         appeal, White abandoned her third (harassment), fifth (failure to
accommodate), and sixth (failure to engage in the interactive process) causes of action.

                                               6
. . . .’ ” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 477.) We review the trial
court’s grant de novo. (Id. at p. 476; Romero v. American President Lines, Ltd. (1995)
38 Cal.App.4th 1199, 1203 [“in a discrimination case . . . we must review the matter de
novo, granting no particular deference to the trial court ruling”].) That is, we consider
“all of the evidence the parties offered in connection with the motion (except that which
the court properly excluded) and the uncontradicted inferences the evidence reasonably
supports.” (Merrill, at p. 476.) When considering all the evidence, however, we “ ‘view
the evidence in the light most favorable to plaintiff[] . . .’ and ‘liberally construe
plaintiff[’s] evidentiary submissions and strictly scrutinize defendant[’s] own evidence, in
order to resolve any evidentiary doubts or ambiguities in plaintiff[’s] favor.’ ”
(McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 96–97.)
       A three-part burden-shifting analysis applies in discrimination actions if no direct
evidence of discrimination is offered. (McDonnell Douglas Corp. v. Green (1973) 411
U.S. 792, 802–804 [93 S.Ct. 1817]; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317,
354 (Guz).) White presented no direct evidence of discrimination; therefore, the burden-
shifting test applies. First, the plaintiff has the burden to establish a prima facie case of
discrimination. (Guz, at pp. 354–355.) “If . . . the plaintiff establishes a prima facie case,
a presumption of discrimination arises.” (Id. at p. 355.) LinkedIn concedes, for the
purposes of this appeal, that White established a prima facie case. Second, the burden
shifts to the defendant to rebut this presumption by demonstrating a legitimate reason for
the adverse action. (Id. at pp. 355–356.) If the defendant establishes a legitimate reason
for the adverse action, the discrimination presumption “disappears.” (Id. at p. 356.)
Third, the burden shifts again to the plaintiff to demonstrate the allegedly legitimate
reason was actually pretext. (Ibid.) These inquiries “are questions of law for the trial
court, not questions of fact for the jury.” (Caldwell v. Paramount Unified School Dist.
(1995) 41 Cal.App.4th 189, 201.)
       Our appellate courts have disagreed somewhat about the application of this
analysis. In particular, courts have disagreed about the degree to which a plaintiff must
demonstrate pretext. (Hersant v. Department of Social Services (1997) 57 Cal.App.4th

                                               7
997, 1004 (Hersant).) The majority of courts, however, require “the employee [to] rebut
the employer’s stated nondiscriminatory reason with substantial evidence of its falsity or
present other evidence suggesting a discriminatory basis, or some combination of the two
such that a reasonable trier of fact could conclude the employer engaged in intentional
discrimination.” (Ibid.; see also Martin v. Lockheed Missiles & Space Co. (1994) 29
Cal.App.4th 1718, 1735 (Martin).) “[T]he 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.” (Guz,
supra, 24 Cal.4th at p. 361, italics added.) That is, “ ‘[t]he [employee] cannot simply
show that the employer’s decision was wrong or mistaken, since the factual dispute at
issue is whether discriminatory animus motivated the employer, not whether the
employer is wise, shrewd, prudent, or competent. [Citations.] Rather, the [employee]
must demonstrate 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.” ’ ” (Hersant, supra, 57 Cal.App.4th at p. 1005.)
       We agree that requiring the plaintiff to demonstrate pretext by substantial evidence
is the proper standard because a mere scintilla of evidence alone cannot be enough to
defeat summary judgment. (Martin, supra, 29 Cal.App.4th at p. 1735 [“The purpose of
the summary judgment procedure . . . is to identify those cases in which there is no
factual issue which warrants the time and cost of factfinding by trial,” italics added].)




                                              8
II.    Summary judgment was proper
       A.     White failed to demonstrate sex or disability discrimination
              1.      LinkedIn rebutted the discrimination presumption
       LinkedIn met its burden to demonstrate it discontinued White’s services and did
not convert her for legitimate business reasons. (Guz, supra, 24 Cal.4th at pp. 355–356.)
       First, LinkedIn argues White refused to relocate although it required Bay Area
residency for full-time recruiters to enable collaborative work, frequent interaction, and
in-person meetings with candidates on site. It offered testimony from Tong supporting
that it made this relocation requirement known to White, both while she was interviewing
and during the time she provided her services. LinkedIn paid White’s lodging expenses
for the first month to facilitate the required relocation.
       Second, LinkedIn argued the seasonal slowdown left too little recruiting work to
justify White’s continued employment. LinkedIn offered White’s October–April contract
as evidence White’s work was expected to last only until the spring. LinkedIn presented
e-mails from White and Tong referencing this slowdown as well as e-mails showing
Tong and Scott had subsequently looked for work outside White’s normal duties to keep
her occupied after the slowdown began. White does not deny Scott and Tong procured
her additional work after her contract ended. Although White denied the seasonal
slowdown, she responded, “yes,” when asked if “as the intern recruiting and new college
graduate recruiting work was starting to slow down . . . [she] look[ed] for other things to
do at LinkedIn.”
       LinkedIn’s reasons were legitimate, nondiscriminatory, and supported by
sufficient evidence. LinkedIn need not have additionally proved the reasons were
prudent or competent. (Trop v. Sony Pictures Entertainment, Inc. (2005) 129
Cal.App.4th 1133, 1149; Hersant, supra, 57 Cal.App.4th at p. 1005.)




                                               9
               2.    White failed to demonstrate pretext through substantial
               evidence
                     a.     White knew LinkedIn required relocation for conversion
       Once LinkedIn rebutted the discrimination presumption, it “disappear[ed]” and the
burden shifted back to White to demonstrate pretext. (Guz, supra, 24 Cal.4th at p. 356.)
White did not meet this burden.
       First, White claims LinkedIn failed to produce any evidence proving it had a
relocation requirement before she announced her pregnancy, or that, even if it did, it
informed her about the requirement before her announcement. LinkedIn did present
evidence, however, defeating both of White’s contentions: White’s own e-mail sent prior
to starting stating her new position would “require” her to relocate and that she planned
to relocate. (Italics added.) LinkedIn also presented supporting testimonial evidence.
For example, White testified that when she accepted the job she understood it was “on-
site in Mountain View with the intention of relocation” and that LinkedIn offered to pay
for her first month’s lodging because LinkedIn’s “intention was to convert [her] to
fulltime” in Mountain View. Although White attempted to present counter evidence, she
failed. To start, she cited to her objections below to LinkedIn’s statement of facts, but
here those objections are immaterial. She also offered her later deposition testimony,
where she denied knowing of the relocation requirement before beginning at LinkedIn,
but it was directly contradicted by her own e-mail sent prior to her first day. Finally, she
failed to support some of her arguments with record citations (and we therefore disregard
those arguments (Myers v. Trendwest Resorts, Inc. (2009) 178 Cal.App.4th 735, 745)).
       Evidence in the record suggests it was White’s reluctance to move5 that impeded
her relocation, not LinkedIn’s communication of its relocation requirement. For
example, before White even started at LinkedIn, she wrote to a friend her position was

       5 The  record suggests White was hesitant to relocate because (1) her contract
position was not guaranteed to produce full-time employment, (2) relocating would be
difficult to do while pregnant, (3) she thought she might be selling her house in Long
Beach at a loss and (4) housing prices in the Bay Area were too high, and (5) her
significant other’s elderly parents, who lived in the Los Angeles area, had failing health.

                                             10
“contract-to-hire and that’s fine by me. I want to try them out too. They are putting me
up in corporate housing for a month, then I go back and forth from SoCal to the Bay. Not
sure if I’ll relocate since I really like my life in SoCal, but we’ll see.” (Italics added.)
Likewise, after White announced her pregnancy, she told Tong she “would be inclined to
relocate if [she] was converted to full-time status,” but that she would not “ ‘relocate
unless [she was] converted to regular employment.’ ” (Italics added.) According to
White, LinkedIn “needed to give me a reason to relocate, and that was to be full time.”
None of this suggests White was unaware of the relocation requirement, but, to the
contrary, that she was keenly aware of it but did not like the requirement and did not want
to conform to it.
       The URG’s hiring practices also substantiate the relocation requirement. White
presented no evidence refuting that all the other full-time and contract recruiters brought
on between fall 2010 and fall 2011 lived in the Bay Area.
       Finally, White argues her contract did not require relocation. White’s contract
with Comsys for temporary services to LinkedIn, however, is not binding on LinkedIn’s
hiring requirement for full-time employees. Moreover, White admits that her Comsys
contract did not entitle her to full-time employment.
                      b.     White’s work decreased, as expected, and there was no
available full-time work for her either in spring or fall 2011
       Second, White argues there was no overall seasonal slowdown and LinkedIn used
this as an excuse to keep work away from her. LinkedIn’s evidence refutes White’s
contention. White’s contract was from October 4, 2010, to April 30, 2011, tracking the
academic year. She admitted in her deposition that the “date range corresponds fairly
closely with the intern recruiting cycle.” White does not dispute that she sent an e-mail
to Scott on April 28, 2011, just two days before her contract was to end, stating, “I sense
that the internship hiring is coming to an end (at least I’m slowing down a bit).” Nor
does White dispute that Tong and Scott had to actively help her procure additional work
beyond April 30, 2011, to keep her busy. Tong testified that by at least June 2011, there



                                              11
was not enough work to occupy White full time, and the work White was doing was not
related to hiring interns, which had been White’s focus.
       White herself also testified that “the work was lessening” in recruiting at the end
of spring 2011, although she attributed it to being excluded from meetings. White,
however, does not argue that her contract was for anything more than nonmanagement
recruiting or that she was entitled to attend management meetings. She also fails to
acknowledge that Hom and Perez, nonpregnant contractors, were also excluded from the
meetings or that the only contractor invited to attend was Scott, who was under
consideration for management. White also admitted in her deposition that she was only
inferring that Browne wanted to exclude her from management meetings “[b]ecause he
knew that there would be a time when I would have to leave because of having my baby,
so I was probably pretty useless at that point.”
       Also supporting the existence of a slowdown, Tong discontinued Perez’s services
after White’s last day because Perez was working only 5 to 10 hours per week in April,
which Tong stated in her declaration was due to the slowdown. White claims LinkedIn
contracted Perez as a remote recruiter in August 2011; White, however failed to present
any evidence supporting this claim, and the record substantiates that Perez was contracted
as a coordinator, not a recruiter. Although Scott testified that LinkedIn later hired Perez
as a full-time remote recruiter, Perez was not a full-time remote recruiter between spring
and fall 2011, when White was seeking to continue working for LinkedIn. This evidence,
collectively, is indicative that seasonal slowdown was not only an anticipated
phenomenon, but one that actually occurred.
       Third, White argues LinkedIn had available recruiting work. For example, White
offered an internal e-mail sent in April announcing hoped-for global recruiting growth as
evidence of available recruiting work and testified she knew the URG “anticipated” more
work. Even if this anticipated growth materialized at some point, it does not speak to
whether LinkedIn had work for full-time remote recruiters in California at the time White
was seeking work.



                                             12
       White argues that Hom’s conversion in late June confirms LinkedIn had available
work during her services, but chose to give it to a man instead of White, who was
pregnant. Hom, however, had been part of the URG longer than White and lived in the
Bay Area. White also acknowledged in an e-mail, sent after her temporary services had
been terminated, that LinkedIn “left the door open for me to return” but expressed
hesitation to do so because LinkedIn wanted her to relocate at her own expense. This
suggests that LinkedIn’s conversion of Hom, and not White, was motivated by Hom’s
Bay Area residency and White’s reluctance to relocate. White also complains that work
and opportunities were directed to Hom, instead of her. LinkedIn, however, had a
legitimate reason to occupy Hom, its full-time employee, over that of a contractor whose
anticipated termination had already passed.
       White further argues that LinkedIn interviewed candidates for “her position” in
July, evidencing it was “gearing up to get rid of” her, despite available work. To start,
White had no entitlement to “her” position. She testified she understood her anticipated
end date was in April 2011 and knew her at-will position was not a guarantee of
employment. In addition, LinkedIn was allowed to interview URG candidates in a
competitive selection process, and White has no proof that the candidates were being
interviewed specifically to replace her or when they would begin. Finally, LinkedIn had
legitimate reasons to look to other candidates in creating the fall 2011 team: White told
LinkedIn she did not intend to relocate as required unless LinkedIn met her condition of
offering full-time employment and Tong testified that the rest of the URG was burdened
by this decision because the team had to greet White’s candidates in person when they
visited Mountain View.
       White argues LinkedIn also immediately removed a URG job posting after she
inquired about it, just days prior to her leaving, presumably indicating LinkedIn’s intent
to preclude her from working at LinkedIn, despite available work. White contends that
Tong’s and Scott’s allegedly inconsistent explanations about the posting’s removal and
Scott’s comment to Tong that the situation was “[aw]kward, I’m sure” support her
contention. The position, however, was never approved, never offered to the public, and

                                              13
never filled, and Tong told White the position was not available. White cannot argue she
was deprived of an employment “opportunity” when the position was not, and never did
become, a reality. Scott also explained that she characterized the situation as awkward
because Tong was in the uncomfortable position of explaining to White that (1) even
though White wanted to continue working at LinkedIn, (2) had been let go, and (3) it
appeared there was an available attractive employment opportunity, (4) there was in fact
no such opportunity. White’s argument is also rebutted because White admits both Tong
and Scott worked to find White additional assignments after the anticipated end date of
her contract and after they knew she was pregnant. Nothing in the record suggests this
additional work indicated a full-time position was available in the URG and Tong’s and
Scott’s actions, if anything, suggest LinkedIn was not biased against pregnant women.
       Finally, White argues LinkedIn bringing on other recruiters within a few weeks of
her last day proves there was available recruiting work. All the new workers, however,
were contractors, all were contracted at the start of the academic season, and all lived in
the Bay Area and worked out of Mountain View. Tong also testified she “wouldn’t say
there was work” at this time; instead, “[w]e were gearing up for it. We were in [the]
planning stage. We were ramping them up, getting them trained.” White also e-mailed
Tong about open positions in late September 2011 after LinkedIn contracted these
recruiters. She offered no evidence the URG had available work for her after bringing on
the three new contractors. In fact, when White e-mailed Tong, she acknowledged the
URG might not have available work, writing, “If there isn’t a place for me on the UR
team, I’m wondering if this higher education evangelist team would be a possibility?”
                     c.     The URG hiring team was not biased
       Fourth, White argues that the URG hiring team knew White was pregnant, knew
she wanted to keep working at LinkedIn, and “must have known” about upcoming
positions, suggesting that because White was pregnant they chose to exclude her from
potential positions. For example, White accused Scott of once telling White that her
“priorities would change.” Scott stated in her declaration, however, that she did not
recall making the statement and it did “not sound like something I would say to any

                                             14
colleague.” Even if Scott did make this comment, it was not while Scott was in a hiring
position. Tong ended White’s services in spring 2011, and by the time Scott was making
hiring decisions in fall 2011, Tong reported to White there was no available work; White
does not argue there was.
       White also points to an e-mail where Tong mentioned White’s impending due date
when informing White she wanted to talk. She cites Kelly v. Stamps.com Inc. (2005) 135
Cal.App.4th 1088 for the proposition that Tong’s comment “taken in context with the
concurrent news that she was being terminated” could lead a reasonable factfinder to
“infer that LinkedIn had decided to end Ms. White’s employment because they did not
think she would be a valuable contribution with her due date looming.” When considered
in context with Tong’s other e-mails, however, Tong’s opening line of, “Hope you’re
feeling well, your due date is coming soon,” suggests she was merely engaging in
friendly chatter. If anything, it speaks to the timing of the end of White’s services, not
the rationale for it. (See Fu v. Walker Parking Consultants (2011) 796 F.Supp.2d 1148,
1154, 1157 [discussion of timing of plaintiff’s layoff in relation to her maternity leave
was not evidence of discrimination under California law where it did not appear to be the
rationale for it].) In light of the weight of the countervailing evidence, this comment, at
best, creates “ ‘only a weak issue of fact’ ” as to whether LinkedIn’s reasons were untrue
(Guz, supra, 24 Cal.4th at p. 362, quoting Reeves v. Sanderson Plumbing Products, Inc.
(2000) 530 U.S. 133, 148 [120 S.Ct. 2097, 2109]) and does not “warrant[] the time and
cost of factfinding by trial.” (Martin, supra, 29 Cal.App.4th at p. 1735.)
                     d.     White’s work ethic, performance, and desire to stay at
LinkedIn are not determinative
       Fifth, White argues that she wanted to work at LinkedIn, was interested in
contributing, met her recruiting targets, and was “happy” to take on extra work; despite
this, she argues she was excluded from management meetings, had responsibilities taken
away, and was not given opportunities which would enhance her career. Although this
might be evidence that White was an ambitious employee and one worthy of
consideration for full-time employment, it does not speak to the essential issue: Whether

                                             15
LinkedIn impermissibly discontinued White’s at-will and limited services and chose not
to convert her because she was pregnant and would soon be a new mom. For the reasons
discussed above, White failed to present evidence of pretext and her desire to remain at
LinkedIn, and evidence she believes proves she was qualified to stay, is therefore
irrelevant.
       B.     White failed to demonstrate a failure to prevent discrimination
       Because White’s discrimination cause of action fails, so does her derivative failure
to prevent discrimination claim. (Dickson v. Burke Williams, Inc. (2015) 234
Cal.App.4th 1307, 1317–1318.)
       C.     White failed to demonstrate retaliation
       The analysis for retaliation is the same as discrimination, and, if the final stage is
reached, requires a plaintiff to prove pretext. (Iwekaogwu v. City of Los Angeles (1999)
75 Cal.App.4th 803, 815.) Although White and LinkedIn agree on the analysis, they
disagree whether White engaged in protected activity, whether Assembly Bill No. 987
(2015–2016 Reg. Sess.) (redefining protected activity) retroactively applies, or whether
White exhausted her administrative remedies. Even resolving the disagreements in
White’s favor, her retaliation claim fails because she cannot prove pretext.
       D.     White failed to demonstrate wrongful termination in violation of either
              FEHA or public policy
       White, again, predicated her FEHA and public policy arguments on her failing
pretext analysis. Because she cannot establish pretext, her FEHA and public policy
arguments fail.




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                                     DISPOSITION
       The judgment is affirmed. LinkedIn Corp. is awarded its costs on appeal under
California Rules of Court, rule 8.278.
       NOT TO BE PUBLISHED.


                                               LUI, J.
We concur:


       ROTHSCHILD, P. J.


       CHANEY, J.




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