Filed 10/29/13 Lu v. Trustees of Leland Stanford Jr. University CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


JENNIFER LU,                                                         H037294
                                                                    (Santa Clara County
         Plaintiff and Appellant,                                    Super. Ct. No. CV152301)

             v.

TRUSTEES OF LELAND STANFORD
JR. UNIVERSITY,

         Defendant and Respondent.



         In this employment case, plaintiff Jennifer Lu, proceeding in propria persona
appeals a judgment entered in favor of the Trustees of Leland Stanford Jr. University
(Stanford) following Stanford‟s successful motion for summary judgment on Lu‟s
discrimination action. On appeal, Lu asserts the trial court erred in granting Stanford‟s
motion.
                                  STATEMENT OF THE FACTS AND CASE
         Stanford hired Lu in August 2001 to work in the Office of Continuing Medical
Education (OCME) at Stanford University‟s School of Medicine. Lu‟s position at the
time was “CME Services Coordinator.” In May 2005, Lu was reclassified and promoted,
receiving an 8.9 percent salary increase and a new title of “RSC Program Administrator.”
         During the time Lu was employed at Stanford, she filed a total of six claims with
the Department of Fair Employment and Housing (DFEH). The first complaint occurred
in February 2006, in which she alleged Stanford discriminated against her because she
was Asian. Lu claimed she was denied a bonus, received a dissimilar raise from another
non-Asian coworker, was demoted, and was given lower job responsibilities. The DFEH
issued a right-to-sue letter on February 13, 2006.
       Following her complaint to the DFEH, Lu complained to Stanford that she was
being treated unfairly at the OCME, and wanted to be transferred to a different position.
In response to Lu‟s request, on March 21, 2006, Stanford transferred Lu to the Office of
Educational Programs and Services, which, like her previous position with the OCME,
was in Stanford‟s medical school. The transfer was lateral, and Lu maintained the same
salary and classification as her old position.
       Immediately after her transfer, Lu went on medical leave for major depressive
disorder that she claims was caused by the transfer. While on leave, in April 2006, Lu
filed her second complaint with the DFEH. In this complaint, Lu claimed the lateral
transfer was in retaliation for her filing the February 2006 charge. The DFEH issued a
right-to-sue letter on April 18, 2006.
       When Lu returned to work following her medical leave, she requested a reduced
work schedule of four hours per day, for three days per week between July 10, 2006 and
August 7, 2006. This request was pursuant to her doctor‟s orders. Lu‟s doctor stated that
Lu could be released to work full time beginning August 7, 2006.
       On July 21, 2006, while working on the reduced schedule, Lu emailed her
supervisor stating that she “had severe anxiety attacks since [she] started reviewing the
description of [her] position,” and was undergoing “enormous mental torture and
emotional distress.” Lu was crying openly at work and was threatening to kill herself.
Lu‟s supervisor became concerned about Lu‟s emotional stability and on July 24, 2006,
told Lu not to return to work until Stanford received an updated confirmation from Lu‟s



                                                 2
doctor that Lu was fit for duty. Lu was placed on paid administrative leave pending the
evaluation.
       Stanford also decided to seek a second medical opinion of Lu‟s fitness for duty. In
October 2006, the doctor completed the evaluation and concluded that Lu did not pose a
risk of harm to herself or others. In addition, Lu‟s doctor did not revise his original
evaluation that Lu was fit to return to work. Lu returned to work full time in the same
position on November 27, 2006.
       While Lu was on administrative leave, she filed her third DFEH claim, alleging
that by placing her on long term leave, and requiring her to produce another note from
her doctor, Stanford was retaliating against her for filing the prior DFEH claims. The
DFEH issued a right-to-sue letter on August 10, 2006.
       In April 2007, the EEOC issued its findings on all three of Lu‟s DFEH claims,
stating that “[b]ased upon its investigation, the EEOC is unable to conclude that the
information obtained established violations of the statutes. . . .”
       On May 8, 2007, Lu filed her fourth DFEH claim, alleging she was retaliated
against for filing her prior charges and discriminated against based on her disability. The
DFEH issued a right-to-sue letter on May 17, 2007, and the EEOC issues a right-to-sue
notice of dismissal on June 17, 2009.
       In August 2007, Lu‟s position, as well as two others in her department was
eliminated due to an unexpected loss of approximately half of the operating budget for
the OCME. Stanford sent Lu a letter dated August 7, 2007, stating that her position was
eliminated effective immediately, and offered to help her find a new job.
       On September 24, 2007, Lu filed her fifth claim with the DFEH alleging she was
terminated in retaliation for filing her prior claims. The DFEH issued a right-to-sue letter
on September 24, 2007, and the EEOC issued a right-to-sue notice of dismissal on
June 17, 2009.

                                               3
       After Lu‟s layoff, she began applying indiscriminately to hundreds of positions at
Stanford for which she was unqualified. Lu did not disclose in her applications that she
had filed claims of retaliation and discrimination with Stanford, or that she had a
disability.
       During Lu‟s continued job search at Stanford, she behaved erratically. For
example, Lu arrived at a hiring manager‟s office without an appointment repeatedly
demanding to know why she was not hired for a position. In addition, after interviewing
for a position with a professor, Lu found the professor‟s CV online and changed it
without permission.
       Because of Lu‟s disruptive behavior in applying for jobs, Stanford informed Lu
that it would no longer consider her for any employment. Despite Stanford‟s notification,
Lu has continued to apply for jobs at Stanford, and uses various names and aliases.
       On December 30, 2008, Lu brought her sixth claim with the DFEH, alleging that
Stanford did not rehire her in retaliation for her prior DFEH charges. The DFEH issued a
right-to-sue letter on January 8, 2009.
       On January 7, 2010, Lu filed an amended complaint asserting the following five
causes of action against Stanford: (1) discrimination based on her disability; (2)
retaliation for reporting discrimination; (3) wrongful termination in violation of public
policy; (4) intentional infliction of emotional distress; and (5) refusal to re-hire her in
violation of public policy.
       In July 2010, Stanford filed a motion for summary judgment. The hearing was
originally set for October 2010; however, Lu requested numerous continuances “so that
she could seek treatment.” The summary judgment hearing was delayed until June 2011.
On June 20, 2011, the court granted Stanford‟s motion for summary judgment. This
appeal followed.



                                               4
                                         DISCUSSION
       Lu asserts on appeal that the trial court erred in granting Stanford‟s motion for
summary judgment.
       “The purpose of the law of summary judgment is to provide courts with a
mechanism to cut through the parties‟ pleadings in order to determine whether, despite
their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) As such, the summary judgment
statute (Code Civ. Proc., § 437c), “provides a particularly suitable means to test the
sufficiency of the plaintiff‟s prima facie case and/or of the defendant‟s [defense].”
(Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203, fn.
omitted.)
       The moving party “bears the burden of persuasion that there is no triable
issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar,
supra, 25 Cal.4th at p. 850, fn. omitted.) “Summary judgment is granted when a moving
party establishes the right to the entry of judgment as a matter of law. (Code of Civ.
Proc., § 437c, subd. (c).) In reviewing an order granting summary judgment, we must
assume the role of the trial court and redetermine the merits of the motion. In doing so,
we must strictly scrutinize the moving party‟s papers. [Citation.] The declarations of the
party opposing summary judgment, however, are liberally construed to determine the
existence of triable issues of fact. [Citation.] All doubts as to whether any material,
triable issues of fact exist are to be resolved in favor of the party opposing summary
judgment. [Citation.] [¶] While the appellate court must review a summary judgment
motion by the same standards as the trial court, it must independently determine as a
matter of law the construction and effect of the facts presented. [Citation.]” (Barber v.
Marina Sailing, Inc. (1995) 36 Cal.App.4th 558, 562.)
       Our review of the grant or denial of summary judgment is de novo. (Buss v.

                                               5
Superior Court (1997) 16 Cal.4th 35, 60; Orrick Herrington & Sutcliffe v. Superior Court
(2003) 107 Cal.App.4th 1052, 1056.) In conducting such de novo review, we “consider[]
all the evidence set forth in the moving and opposition papers except that to which
objections have been made and sustained. [Citation.]” (Guz v. Bechtel National, Inc.
(2000) 24 Cal.4th 317, 334.) This review consists of “an independent assessment of the
correctness of the trial court‟s ruling, [in which we] apply[] the same legal standard as the
trial court in determining whether there are any genuine issues of material fact or whether
the moving party is entitled to judgment as a matter of law.” (Iverson v. Muroc Unified
School Dist. (1995) 32 Cal.App.4th 218, 222.) We need not defer to the trial court and
are not bound by the reasons in its summary judgment ruling; we review the ruling of the
trial court, not its rationale. (Kids’ Universe v. In2Labs (2002) 95 Cal.App.4th 870, 878.)
       As in the present case, a defendant moving for summary judgment has the burden
of persuasion to show that there is no merit to a cause of action. A defendant can do so by
showing that one or more of the elements of the cause of action cannot be established or
that there is a complete defense to that cause of action. (Code of Civ. Proc., § 437c,
subd. (o)(2).) Once the defendant does so, the burden shifts back to the plaintiff to show
that a triable issue of one or more material facts exists as to that cause of action or to a
defense to the cause of action. In doing so, the plaintiff cannot rely on the mere
allegations or denial of his pleadings, “but, instead, shall set forth the specific facts
showing that a triable issue of material fact exists . . . .” (Code of Civ. Proc., § 437c,
subd. (p)(1).)
       Discrimination Based on Disability
       Lu‟s allegations of discrimination because of her disability are based on actions
and events that occurred in 2006, in particular, her job transfer out of the OCME.
Because the first amended complaint was not filed until 2009, they are time barred.



                                               6
       In order to bring a state court action under the Fair Employment and Housing Act
(FEHA), a plaintiff must file a complaint with the DFEH and receive a right-to-sue letter.
(Gov. Code, § 12965, subd. (b).) The plaintiff then has one year within which to file a
civil action based on the allegations made in the DFEH charge. (Ibid.)
       If employment discrimination charges are timely filed with the DFEH, and the
DFEH defers its investigation to the EEOC, the one-year period to file suit for violation
of FEHA is equitably tolled during the pendency of the EEOC investigation until the
EEOC issues its own right-to-sue letter. Once the EEOC issues its right-to-sue letter, the
plaintiff has 90 days to file suit, or until the federal right-to-sue period ends, whichever is
later. (Gov. Code, § 12965, subds. (d), (e); 42 U.S.C. § 2000e-5(f)(l).)
       In the present case, with respect to the events that occurred in 2006, Lu filed three
complaints with the DFEH, in February, April and August of 2006. The DFEH issued
right to sue letters in these actions on February 13, 2006, April 18, 2006, and
August 10, 2006 respectively. All of these complaints were then sent to the EEOC to
investigate. On April 25, 2007, the EEOC issued findings with respect to all three of the
2006 complaints, stating that “based upon its investigation, the EEOC is unable to
conclude that the information obtained established violations of the statutes. . . .” As a
result, Lu‟s right to sue on the February 2006 and April 2006 complaints expired on
July 25, 2007, which is 90 days from the issuance of the EEOC‟s decision. Lu‟s right to
sue on the August 2006 complaint was August 10, 2007, because the DFEH one-year
time to sue was later than the EEOC 90-day deadline. Because Lu‟s first amended
complaint in this case was not filed until 2009, well over the expiration of the right to sue
period, her action for discrimination based on the 2006 conduct is time barred.
       Even if Lu‟s discrimination action were not time barred, she cannot demonstrate
that Stanford discriminated against her because of her disability. In the context of
discrimination and retaliation claims, an employer moving for summary judgment bears

                                               7
the initial burden of producing evidence to show that it did not engage in prohibited
conduct. (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1730
[discrimination]; Miller v. Fairchild Industries, Inc. (9th Cir. 1986) 797 F.2d 727, 731
[retaliation].) Typically, the employer adduces evidence of legitimate reasons for the
adverse employment decision. (See Martin v. Lockheed Missiles & Space Co., supra, 29
Cal.App.4th at p. 1731.)
       Once the employer makes the necessary evidentiary showing, the burden shifts to
the employee, who must produce evidence that the employer‟s stated reasons were false
or pretextual, or that the employer acted with a discriminatory animus. (Guz v. Bechtel
National, Inc., supra, 24 Cal.4th at p. 357 [discrimination]; Miller v. Fairchild Industries,
Inc., supra, 797 F.2d at p. 731 [retaliation].) “The exact showing required by an
employee to avoid summary judgment in the face of evidence by an employer of a
[legitimate] reason for an adverse action is a matter of disagreement.” (Hersant v.
Department of Social Services (1997) 57 Cal.App.4th 997, 1003.) At the very least,
however, the employee‟s evidence must be such that a reasonable trier of fact could
conclude that the employer engaged in intentional discrimination or other unlawful
action. (Id. pp. 1004-1005.) It is not sufficient for an employee opposing summary
judgment to make a bare prima facie showing of discrimination or to speculate as to
discriminatory motive. (Ibid.) Rather it is incumbent upon the employee to produce
“ „substantial responsive evidence‟ ” demonstrating the existence of a material factual
dispute as to pretext or discriminatory animus on the part of the employer. (Martin v.
Lockheed Missiles & Space Co., supra, 29 Cal.App.4th at p. 1735.) “Thus, to withstand a
motion for summary judgment, the opposing party must „produce “specific facts showing
that there remains a genuine factual issue for trial” and evidence “significantly probative
as to any [material] fact claimed to be disputed.” ‟ ” (Miller v. Fairchild Industries, Inc.,
supra, 797 F.2d at p. 731.)

                                              8
       Here, Stanford meets its initial burden of demonstrating that Lu cannot establish
an action for discrimination based on disability, because Lu cannot prove Stanford had
knowledge of any disability before the transfer decision was made in March 2006.
Indeed, Lu claims her disability (depression and anxiety) occurred as a result of the
transfer; therefore, it cannot have been a cause of the transfer.
       Lu presents no evidence to establish a triable issue of material fact that Stanford
knew of her disability in making the transfer decision. Nor is there any evidence that the
hiring managers for the 1000+ for which Lu applied had any knowledge of her disability.
As such, Stanford is entitled to judgment as a matter of law as to Lu‟s cause of action for
discrimination based on disability.
       Retaliation
       Lu asserts that as a result of her engaging the protected activity of complaining to
the DFEH, Stanford retaliated against her.
       In order to establish a prima facie case for retaliation, Lu must demonstrate
“ „ “that she engaged in a protected activity, that she was thereafter subjected to an
adverse employment action by her employer, and that there was a causal link between the
two.” ‟ ” (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 69.)
Moreover, “in a retaliation case, the McDonnell Douglas test „require[s] that (1) the
plaintiff establish a prima facie case of retaliation, (2) the defendant show that the
defendant articulate a legitimate nonretaliatory explanation for its acts, and (3) the
plaintiff show that the defendant‟s proffered explanation is merely a pretext.‟ ” (Sada v.
Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 155.)
       Here, Stanford meets its initial burden of demonstrating that there was no causal
link between Lu‟s complaints to the DFEH and the employment actions. Stanford
presents evidence of legitimate reasons for Lu‟s layoff due to financial constraints, and its
failure to return Lu to work following her leave without a second medical opinion.

                                              9
Finally, Stanford presents evidence of legitimate reasons, such as lack of qualification
and Lu‟s disruptive behavior during the process, for its rejection of Lu‟s numerous
employment applications. As a result, Stanford is entitled to judgment as a matter of law
as to Lu‟s cause of action for retaliation.
       Wrongful Termination in Violation of Public Policy
       Stanford asserts it is entitled to judgment as a matter of a law as to the cause of
action for wrongful termination in violation of public policy, because it is barred by the
statute of limitations.
       The statute of limitations for a claim of wrongful termination in violation of public
policy is governed by the two-year statute of limitations for personal injury claims.
(Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1208-
1209; Code Civ. Proc. § 335.1.) A wrongful termination in violation of public policy
claim accrues at the time of discharge. (Romano v. Rockwell Internat. Inc. (1996) 14
Cal.4th 479, 501.)
       Lu was terminated by Stanford on August 7, 2007 pursuant to a letter that stated
her position was eliminated “effective today,” and that Lu would receive “30 days pay in
lieu of notice.” Therefore, the statute of limitations for her claim of wrongful termination
in violation of public policy expired on August 7, 2009. Lu filed her complaint against
Stanford on September 15, 2009, beyond the expiration of the statute of limitations.
       Lu asserts her action for wrongful termination in violation of public policy is not
barred by the statute of limitations, because she has what she refers to as an “official
report” from Stanford that says she separated from employment on November 5, 2007.
While the document does refer to a separation date of November 5, 2007, it also states
that Lu‟s last day of work was August 7, 2009. Moreover, Lu‟s termination letter stated
that she was terminated effective August 7, 2009.



                                              10
       Lu‟s action for wrongful termination accrued on August 7, 2009, because that is
the date on which she was terminated. As a result, Lu‟s action is barred by the two-year
statute of limitations.
       Intentional Infliction of Emotional Distress
       In Lu‟s fourth cause of action, she alleges Stanford is liable for intentional
infliction of emotional distress. Lu claims that as a result of her transfer from the OCME
position, she became depressed and suffered severe anxiety attacks that forced her to take
a medical leave of absence.
       Emotional distress caused by misconduct in employment relations such as
promotions, demotions, criticism of work practices, or grievance negotiations are
considered to be a normal part of the employment environment. Thus, “[a] cause of
action for such a claim is barred by the exclusive remedy provisions of the workers‟
compensation law. [Citations.] The Legislature, however, did not intend that an
employer be allowed to raise the exclusivity rule for the purpose of deflecting a claim of
discriminatory practices. [Citations.] [¶] Thus, a claim for emotional and psychological
damage, arising out of employment, is not barred where the distress is engendered by an
employer‟s illegal discriminatory practices.” (Accardi v. Superior Court (1993) 17
Cal.App.4th 341, 352.)
       Moreover, “where a plaintiff can allege that she suffered emotional distress
because of a pattern of continuing violations that were discriminatory, her cause of action
for infliction of emotional distress will not be barred by the exclusivity provisions of
workers‟ compensation laws. This is so because the claim is „founded upon actions that
are outside the normal part of the employment environment . . . .‟ [Citation.]” (Murray
v. Oceanside Unified School Dist. (2000) 79 Cal.App.4th 1338, 1363.)
       Here, the emotional distress Lu alleges to have suffered, namely depression and
anxiety, resulted from regular employment practices, specifically, Stanford‟s transfer of

                                             11
Lu to OCME. There is no evidence that Stanford‟s conduct was part of an “illegal
discriminatory practice[],” that could remove this action from the exclusivity provisions
of the workers‟ compensation act. (Accardi v. Superior Court, supra, 17 Cal.App.4th at
p. 352.) Lu‟s exclusive remedy for her allegations of emotional distress is workers‟
compensation. Therefore, Stanford is entitled to judgment as a matter of law as to this
cause of action.
       Refusal to Re-Hire in Violation of Public Policy
       In Lu‟s fifth cause of action, she asserts Stanford violated public policy in refusing
to re-hire her. Stanford argues it is entitled to judgment as a matter of law, because no
such cause of action exists under the law.
       A wrongful termination in violation of public policy claim is based on the
assertion that the employer‟s motives for terminating the employee are so contrary to
fundamental norms an injury sounding in tort occurred. (See Tameny v. Atlantic
Richfield Co. (1980) 27 Cal.3d 167, 176.) An employee may recover in tort for wrongful
termination if the discharge violated an established public policy. (Turner v. Anheuser–
Busch, Inc. (1994) 7 Cal.4th 1238, 1256.) Our Supreme Court has explained: “To
support a claim for wrongful termination in violation of public policy, a policy must be
„delineated in either constitutional or statutory provisions‟; it must be „ “public” in the
sense that it “inures to the benefit of the public” rather than serving merely the interests
of the individual‟; it must have been well established „at the time of the discharge‟; and it
must be „fundamental‟ and „substantial.‟ [Citation.]” (Ross v. RagingWire
Telecommunications, Inc. (2008) 42 Cal.4th 920, 942.)
       While California courts recognize a cause of action for wrongful termination in
violation of public policy, there is no such tort for failure to re-hire. (Ayesh v. Fair Isaac
Corp. (N.D. Cal. 2005) 2005 U.S. Dist. LEXIS 43543, *10 [“a failure to hire does not
create a cause of action under Article I, Section 8” of the California Constitution, which

                                              12
is the basis for employment torts couched in public policy]; see also Himaka v. Buddhist
Churches of America (N.D. Cal. 1995) 919 F.Supp. 332, 335 [“Whereas California courts
have held that there is such a mechanism to redress wrongful discharge in violation of
public policy,[citation] no California court has recognized a comparable mechanism to
redress wrongful failure to provide equal promotional opportunities or equal working
conditions—the violations which plaintiff alleges.”].)
       Because California does not recognize a cause of action for failure to re-hire in
violation of public policy, Stanford is entitled to judgment as a matter of law as to the
fifth cause of action.
                                       DISPOSITION
       The judgment is affirmed.


                                           ______________________________________
                                                      RUSHING, P.J.


WE CONCUR:


____________________________________
           PREMO, J.


____________________________________
           ELIA, J.




                                             13
