Filed 4/29/13 Ragan v. Southern Cal. Edison Co. CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



KENNETH RAGAN,

         Plaintiff and Appellant,                                         E052723

v.                                                                        (Super.Ct.Nos. CIVRS808404 &
                                                                          CIVRS812937)
SOUTHERN CALIFORNIA EDISON
COMPANY,                                                                  OPINION

      Defendant and Respondent;
_________________________________

TYRUS MCDOWELL,

         Plaintiff and Appellant,

v.

SOUTHERN CALIFORNIA EDISON
COMPANY,

         Defendant and Respondent.



         APPEAL from the Superior Court of San Bernardino County. Keith D. Davis,

Judge. Affirmed.



                                                              1
       Daniel T. Streeter, Jr., for Plaintiffs and Appellants.

       John D. Buchanan and Lauren E. Robinson for Defendant and Respondent.

       Kenneth Ragan (Ragan) sued Southern California Edison (Edison) for breach of

contract, employment discrimination, retaliation, wrongful termination, and interference

with prospective economic advantage. Tyrus McDowell (McDowell) sued Edison for

breach of contract and wrongful demotion. In both lawsuits, the trial court granted

summary judgment in favor of Edison. Ragan and McDowell (collectively referred to

as “Plaintiffs”) contend the trial court erred because they presented triable issues of

material fact. We affirm the judgments.

                    FACTUAL AND PROCEDURAL HISTORY

       A.     RAGAN‟S COMPLAINT

       Ragan began working for Edison in 1984. Ragan was employed as a lineman.

Edison created various safety manuals, such as the Accident Prevention Manual and the

Transmission & Distribution Underground Grounding Manual. If an employee were to

violate the directions in the manuals, then the employee could be terminated. Edison

asserted Ragan violated the safety directives and terminated his employment. Ragan

denied violating the safety regulations.

       Ragan alleged Edison terminated his employment in substantial part due to his

race. Ragan is White, while the person responsible for his termination is Hispanic.

Ragan asserted Edison demonstrated a pattern of “„reverse discrimination‟ at the

Fontana worksite and/or office, wherein [Ragan] was assigned.” Additionally, Ragan is

over 40 years old. Ragan alleged he was also fired due to age discrimination. Ragan


                                              2
asserted his “salary, retirement and benefits package at the time of his termination,

[were] significantly greater than those of similarly titled and/or situated employees who

did not have his seniority and/or tenure of service.”

       Ragan was a member of the International Brotherhood of Electrical Workers

(IBEW). There was a collective bargaining agreement in place between IBEW and

Edison, which covered Ragan‟s employment. During his employment with Edison,

Ragan voiced complaints and utilized grievance procedures. For example, Ragan

complained about “favoritism manifested by certain supervisors and lax compliance

with safety and other important practices.” Ragan associated with other employees who

expressed complaints. Ragan asserted his termination was partly due to retaliation for

his complaints.

       Ragan further alleged Edison interfered with his working for various other

companies as a subcontractor or independent contractor by “attempting to dissuade

them from hiring” Ragan.

       B.     MCDOWELL‟S COMPLAINT

       McDowell began working for Edison in 1983. McDowell was employed as a

groundman. McDowell was a member of IBEW, and his employment was covered by

the IBEW/Edison collective bargaining agreement. Edison created safety manuals, such

as the Accident Prevention Manual and the Transmission and Distribution Underground

Grounding Manual. If an employee violated the safety directives in the manuals, then

the employee could suffer adverse employment actions.




                                             3
       Edison demoted McDowell due to McDowell violating the safety guidelines.

McDowell denied violating the safety directions or violating them in the manner

described by Edison. McDowell asserted Edison‟s true reasons for demoting him were

(1) racial discrimination, (2) age discrimination, and (3) whistleblowing.

       C.     SUMMARY JUDGMENT AGAINST RAGAN

       Edison moved for summary judgment against Ragan. Edison asserted Ragan‟s

causes of action for (1) breach of contract, and (2) breach of the implied covenant of

good faith were preempted by federal law, specifically the Labor Management Relations

Act. Edison argued Ragan‟s remedies for alleged improper disciplinary action were

limited to the grievance and arbitration process set forth in the IBEW/Edison collective

bargaining agreement.

       Further, Edison argued Ragan‟s causes of action for (1) discrimination, (2)

retaliation, and (3) wrongful termination failed because Ragan‟s employment was

terminated due to “his record of failures to adhere to [Edison‟s] safety rules and policies

in the performance of his duties as a journeyman lineman.” Edison asserted Ragan‟s

claim for interference with prospective economic advantage failed because Ragan did

not establish the wrongful conduct element.

       Edison contended all of its employees were expected to adhere to the rules set

forth in the Accident Prevention Manual. In March 2002, “Ragan was suspended for

failing to verify the proper steps in a switching procedure resulting in a switching

error.” On August 8, 2005, Ragan was suspended without pay after an investigation

revealed that “on July 19, 2005, he and the crew under his supervision had not followed


                                             4
standard operating procedures under [Accident Prevention Manual] rule #309 in making

a preventable error in connecting cables to new switching equipment which created a

hazardous condition and seriously jeopardized the safety of another crew.”

       Upon Ragan‟s reinstatement, Edison issued him a memorandum warning: “„The

Accident Prevention manual and the rules within are put there for the safety of you and

your co-workers, any future incidents or rule violations of the same nature could lead to

further disciplinary action up to and including further suspension and or termination of

your employment at [Edison].‟”

       On August 11, 2005, Edison suspended Ragan for 10 days after an investigation

revealed that “on July 31, 2005 he operated a fused burd [Buried Underground

Residential Distribution] switch by himself in violation of [Accident Prevention

Manual] Rule 309b.” A memorandum given to Ragan upon his reinstatement warned,

“Any future incidents or rule violations of the same nature will lead to the termination

of your employment with [Edison].”

       On July 20, 2006, Ragan was suspended for five days “after he engaged in

insubordinate and unprofessional conduct in violation of [Edison‟s human resources]

polices.” Ragan lost his temper with a supervisor and used profanity while “verbally

assaulting” the supervisor. A memorandum given to Ragan upon his reinstatement

provided, “Mr. Ragan please be advised that after the incident above, and the fact that

you were severely disciplined less than a year ago for your violations of corporate safety

and operating policies, that you must show absolute improvement in your attitude and

compliance toward Edison‟s protocol, policies and procedures. Any future incidents or


                                            5
rule violations of the same nature will lead to the termination of your employment with

[Edison].” The memorandum further provided Ragan would be ineligible for

supervisory or training positions for at least one year. In resolving a grievance over the

suspension and reinstatement letter, Edison agreed to modify some of the language in

the July 2006 memorandum. The reissued letter included the foregoing warning about

possible termination.

       On November 16, 2006, Ragan was part of a crew assigned to work on overhead

and underground lines in Chino Hills. The crew consisted of Ragan, McDowell, a

second journeyman lineman, and an apprentice lineman. McDowell was the crew

foreman, who led the crew‟s work. While working, the crew cut the power to the

nearby state juvenile correctional facility, which required the facility to operate on

emergency generator power. The crew worked for 32 straight hours before they were

relieved, per Edison rules. The crew had not completed the work in the expected

timeframe, and the correctional facility was at risk of exhausting its emergency

generator power.

       Ontario District Manager, Fernando Valenzuela (Valenzuela), and one of

Ragan‟s immediate supervisors, Ray Cervantes (Cervantes), inspected the jobsite to

review the progress of the work, due to the expected timeline not being met. The

routine check revealed the crew might have unsafely operated an underground gas

insulated electrical switch—the gas level in the switch was too low. Operating the

switch with low gas would violate Edison‟s safety procedures and could have caused a

serious injury to the crew if the switch failed.


                                              6
       On November 20, 2006, Valenzuela directed two supervisors and a safety expert

to investigate whether any safety violations had occurred at the Chino Hills jobsite.

McDowell and Ragan were asked to provide written statements about their activities at

the jobsite, and they were individually interviewed on two occasions. Ragan,

McDowell, and the other crew members were assisted by an experienced union steward

during the individual interviews. The investigation team concluded the crew violated

several safety rules.

       Due to Ragan‟s past disciplinary record the investigation team recommended

Ragan‟s employment be terminated due to the safety violations committed on

November 16, 2006. The team also recommended other crew members be disciplined

based upon their individual rule violations, level of responsibility for the work, and

history of disciplinary action.

       Upon reading the investigative team‟s report, considering Ragan‟s history of

safety violations, and Ragan‟s current violations, Valenzuela no longer had confidence

Ragan could work on electrical distribution systems in a safe and consistent manner.

Valenzuela confirmed his decision to terminate Ragan with regional manager, Gilbert

Ayala, who then confirmed the decision with senior managers. Valenzuela terminated

Ragan on January 4, 2007. Valenzuela instructed Ragan to return $700 worth of

lineman‟s raingear.

       Ragan filed a grievance over his termination. IBEW and Edison settled Ragan‟s

grievance by Edison offering to rehire him “in the less safety sensitive position of

groundman.” Ragan had to reapply for employment before December 1, 2007. Due to


                                             7
the settlement agreement, IBEW withdrew the grievance and declined binding

arbitration on the question of whether Edison had just cause to terminate Ragan. Ragan

never reapplied for employment with Edison.

       On June 5, 2007, six months after being terminated by Edison, Ragan worked for

Pouk & Steinle, an Edison contractor. In July 2007, an Edison employee who

coordinated work with contractors, advised Pouk & Steinle that Ragan was not

permitted on Edison property until he returned his Edison raingear. On July 15, 2007,

Pouk & Steinle terminated Ragan‟s employment. Ragan asserted he was terminated

because he could not work as a coordinator at Edison‟s Victorville Service Center,

although he could have worked as a lineman or groundman who did not need to enter

Edison property. Ragan returned the raingear in fall 2007. Edison argued summary

judgment should be granted on the interference with a prospective economic advantage

claim because Ragan could not establish Edison wanted or intended for Pouk & Steinle

to fire Ragan.

       D.        SUMMARY JUDGMENT AGAINST MCDOWELL

       Edison moved for summary judgment against McDowell. Edison asserted

McDowell‟s causes of action for (1) breach of contract, and (2) breach of the implied

covenant of good faith were preempted by federal law, specifically the Labor

Management Relations Act. Edison asserted McDowell‟s only contract with Edison

was the collective bargaining agreement, and therefore the collective bargaining

agreement provided McDowell‟s only remedies. The collective bargaining agreement

limited McDowell‟s remedies to the grievance and arbitration process.


                                           8
       Edison argued McDowell‟s breach of contract claims were essentially alleging

Edison breached the collective bargaining agreement by improperly demoting him,

which required an interpretation of the collective bargaining agreement and therefore

caused the claims to be preempted by federal law.

       Edison argued McDowell‟s wrongful demotion claim failed because it was

preempted by federal law. Alternatively, if the court concluded the claim did not

require interpretation of the collective bargaining agreement, and was based upon the

Fair Employment and Housing Act (FEHA), then the claim failed because McDowell

was demoted for a legitimate reason.

       On July 19, 2005, McDowell and a crew under his supervision violated several

safety rules. While replacing a gas switch, McDowell and his crew connected the

wrong cable, which resulted in paralleling two circuits, jeopardizing the crew‟s safety.

McDowell was placed on a three-day disciplinary suspension.

       On May 19, 2006, McDowell was standing behind a trainee who “was energizing

an electrical panel in an underground vault when an unanticipated electrical flash

occurred.” McDowell was not wearing the proper safety equipment, and he suffered

injuries. The trainee, who was wearing the proper safety equipment, was not injured.

Edison suspended McDowell from July 10 to July 17, 2006, due to McDowell‟s failure

to wear safety equipment. In November 2006, after McDowell recovered and returned

to work, Edison gave McDowell a memorandum reflecting “any further safety

violations would lead to additional disciplinary action including demotion or

termination.”


                                            9
       On November 16, 2006, McDowell was the foreman of the crew assigned to the

Chino Hills jobsite. A description of the November 16 incident is set forth ante. The

investigation team concluded McDowell violated several safety rules during the

November 16 Chino Hills job. Based upon McDowell‟s safety violations and his past

disciplinary record, the investigation team recommended McDowell be demoted to

lineman.

       Upon reviewing the investigation team‟s report and McDowell‟s safety

violations, Valenzuela no longer had confidence McDowell could safely lead a crew;

however, he believed McDowell could contribute in a non-supervisory role. Thus,

Valenzuela decided to demote McDowell to journeyman lineman and reassigned him to

a different work location. Valenzuela confirmed the demotion decision with the

regional manager, Gilbert Ayala, who confirmed the decision with senior managers.

Valenzuela demoted McDowell to lineman on December 20, 2006.

       E.     OPPOSITIONS OF RAGAN AND MCDOWELL TO THE MOTIONS

              FOR SUMMARY JUDGMENT

       Ragan and McDowell opposed Edison‟s motions for summary judgment.

McDowell dropped his breach of contract causes of action. As to the wrongful

termination claim, McDowell asserted he did not violate Edison‟s safety procedures,

and therefore he was not demoted for a legitimate purpose. McDowell argued he was

demoted due to racial discrimination. McDowell is White. McDowell asserted the

following evidence created a triable issue of material fact: (1) during a telephone

conversation between McDowell and the leader of Edison‟s investigative team


                                           10
(Santiago), Santiago expressed an unwillingness to demote McDowell, “thus allowing a

rational fact[]finder to infer that the safety violation claim is false”; (2) Mr. Flores, the

replacement crew foreman on the night of the Chino Hills incident, committed a serious

safety violation at the same jobsite but was not investigated or disciplined; (3) Edison‟s

safety expert said he knew of no safety violations committed by McDowell at the Chino

Hills jobsite; and (4) Valenzuela could not describe McDowell‟s alleged violations.

       In regard to Ragan, much of the opposition memorandum reflects only that

Ragan‟s position is identical or very similar to McDowell‟s position. For example, the

opposition reflects, “Ragan‟s cause for FEHA based race discrimination in employment

is identical to McDowell‟s.” Ragan argued his claim for retaliatory firing involved a

triable issue of material fact because Ragan placed three calls to Edison‟s ethics and

compliance department.

       In regard to the interference cause of action, Ragan argued there was a triable

issue of material fact because it was silly for a multi-million dollar company to

complain about a 26-year employee taking $700 worth of equipment. Ragan asserted he

was fired by Pouk & Steinle because Edison said Ragan was not permitted on Edison

property.

       F.     REPLY TO MCDOWELL‟S OPPOSITION

       Edison responded to McDowell‟s opposition. Edison asserted McDowell failed

to provide any evidence that he was demoted due to his race. Edison argued McDowell

was only speculating that race was a factor in his demotion. Thus, Edison argued

McDowell failed to create a triable issue of material fact on the discrimination cause of


                                              11
action. Edison further asserted the failure to investigate another employee‟s alleged

violation of a safety rule did not mean Edison lacked a legitimate purpose for demoting

McDowell. Edison argued that without the disciplinary record of the other employee,

nothing can be inferred. Edison argued McDowell‟s reliance on Santiago‟s statement

about not wanting to demote McDowell should be disregarded as inadmissible hearsay.

       G.     REPLY TO RAGAN‟S OPPOSITION

       Edison asserted Ragan was fired due to violating the safety rules, which is a

legitimate purpose for terminating employment. Edison argued there was not a triable

issue of material fact because Ragan was only speculating that he was fired due to his

race and/or age. In regard to Ragan‟s assertion that he heard Santiago say he disagreed

with Ragan‟s termination, Edison argued that evidence would not support a finding

Ragan was fired for a discriminatory or retaliatory purpose, and Santiago‟s hearsay

statement did not explain whether Santiago disagreed with the finding of safety

violations as well as the decision to fire Ragan—so Santiago might have agreed with the

violation findings. Further, Edison argued the evidence concerning the replacement

foreman for the Chino Hills jobsite not being disciplined was irrelevant since there was

nothing indicating he was similarly situated to Ragan.

       H.     HEARING

       At the summary judgment hearing, the trial court announced its tentative decision

was to grant Edison‟s motions for summary judgment. The trial court explained Edison

had presented “ample evidence of its reasonable, rational and legitimate basis” for

terminating Ragan and demoting McDowell. The trial court stated there was no


                                           12
evidence demonstrating Edison had a pretext for disciplining Ragan. As to Ragan‟s and

McDowell‟s breach of contract causes of action, the trial court stated they were moot.

       Ragan and McDowell argued the investigation into the Chino Hills incident was

not thorough or lengthy, and they did not commit any safety violations. Further, there

was evidence employees and managers referred to the many Hispanic supervisors as the

“„Mexican Mafia.‟” Plaintiffs argued they did not need direct evidence of a supervisor

saying a racial slur to prove a discriminatory motive. Next, Plaintiffs argued

Valenzuela pushed the investigatory team on the Chino Hills incident. Plaintiffs assert

the investigatory team initially found a “non-event,” but Valenzuela told them to “go

back” and find discrepancies in the crew members‟ stories.

       Plaintiffs argued Edison holds a “near miss” meeting, where crew members

gather to discuss mishaps at jobsites and how to avoid them in the future. Plaintiffs

asserted the Chino Hills incident was never discussed at a “near miss” meeting.

Plaintiffs noted Santiago said he never found Plaintiffs “violated anything respecting

[the Chino Hills] switch.”

       In regard to Ragan‟s retaliation claim, he argued, “there is clear evidence of

retaliation” because he called Edison‟s ethics and compliance department. The ethics

and compliance department then contacted Valenzuela, so he was aware of Ragan‟s

complaints at the time of Ragan‟s termination. As to the interference claim, Ragan

argued he only needed to show interference—not a wrongful intent. Ragan asserted he

had proven Edison interfered with his employment at Pouk & Steinle.




                                            13
       Edison argued it did not have to be correct that Plaintiffs violated the safety

rules. Rather, Edison only needed to show it took disciplinary action based on the

“legitimate good faith belief the misconduct or charged activity occurred.” Edison

asserted there was nothing connecting Ragan‟s ethics complaints to Ragan‟s

termination, and nothing indicating exactly what Santiago and Valenzuela knew about

the ethics complaints. Edison argued the investigation was “done fairly,” and while it

may not have been perfect, it was honest and done in good faith, without an ulterior

motive. Further, Edison noted when senior management was presented with the

disciplinary decisions (whether to confirm the decisions), they were not informed of the

employee‟s identity—only the merits of the investigation were given to the senior

management. The trial court took the matter under submission.

       I.     JUDGMENT

       The trial court granted Edison‟s motions for summary judgment as to Ragan and

McDowell. The trial court concluded the breach of contract causes of action were

preempted by federal labor law. In regard to Ragan‟s discrimination and wrongful

termination claims, the trial court found (1) Edison terminated Ragan‟s employment for

a legitimate reason; (2) a self-serving statement by Ragan that he did not commit any

safety violations is not sufficient to raise a triable issue of material fact; and (3) Ragan

offered only speculation that there was an environment of favoritism toward Latino

employees. As to the interference cause of action, the trial court concluded Ragan

failed to show Edison engaged in a wrongful act.




                                             14
       The trial court concluded McDowell‟s breach of contract claims were preempted

by federal labor law. In regard to McDowell‟s wrongful demotion claim, the trial court

found McDowell‟s case failed for the same reasons as Ragan‟s case.

                                      DISCUSSION

       A.     EVIDENCE

       At the outset, we address Plaintiffs‟ request for this court “to strike those portions

of [Edison‟s] evidence contended to be inadmissible, for the reasons set forth therein.”

If the trial court “„has put in incorrect statements of evidence, or other matters bearing

upon [the court‟s] rulings, or has omitted evidence or other matters claimed to be

material, the evil is not remediable here.‟” (People v. Huggins (2006) 38 Cal.4th 175,

258, citing In re Dolbeer’s Estate (1905) 147 Cal. 359, 361.) “[T]his court has no

authority to strike out any evidence . . . .” (Huggins, at p. 258.) Thus, we decline

Plaintiffs‟ request for this court to strike Edison‟s evidence.

       To the extent Plaintiffs are requesting this court review the trial court‟s rulings

on Plaintiffs‟ evidentiary objections, as opposed to striking the evidence directly, we

conclude Plaintiffs have forfeited such an argument by failing to provide legal analysis

regarding the trial court‟s alleged errors and failing to cite legal authority. (Los Angeles

Unified Sch. Dist. v. Casasola (2010) 187 Cal.App.4th 189, 212 [failure to provide legal

argument forfeits issue on appeal];1 People v. Stanley (1995) 10 Cal.4th 764, 793 [if a


       1 At oral argument, Plaintiffs faulted this court‟s citation to Los Angeles Unified
Sch. Dist. v. Casasola (2010) 187 Cal.App.4th 189, 212, in our tentative opinion
because it is a contract case. During oral argument, Plaintiffs asserted there could not
                                                                  [footnote continued on next page]


                                             15
point does not include legal analysis, the court may pass it as waived]; Cal. Rules of

Court, rule 8.204(a)(1)(B) [support points with argument and legal authority].)

        B.       SUMMARY JUDGMENT

                 1.      CONTENTION

        Plaintiffs contend the trial court erred by granting Edison‟s motions for summary

judgment, because Plaintiffs raised triable issues of fact related to their wrongful

termination and wrongful demotion causes of action. We disagree.

                 2.      SUMMARY JUDGMENT LAW

        “„A trial court properly grants summary judgment where no triable issue of

material fact exists and the moving party is entitled to judgment as a matter of law.‟

[Citation.] The materiality of a disputed fact is measured by the pleadings . . . .”

(Conroy v. Regents of Univ. of Cal. (2009) 45 Cal.4th 1244, 1250.) “„“„We review the

trial court‟s [summary judgment] decision de novo, considering all the evidence set

forth in the moving and opposing papers except that to which objections were made and

sustained.‟” [Citation.] We liberally construe the evidence in support of the party

opposing summary judgment and resolve doubts concerning the evidence in favor of

that party.‟ [Citation.]” (Id. at pp. 1249-1250.)




[footnote continued from previous page]
be forfeiture because this court is required to perform a de novo review of evidentiary
issues. The standard of review is not the relevant consideration here. The issue is
forfeited because Plaintiffs‟ opening brief does not include any legal analysis for this
possible alternate argument concerning reviewing the objections. The brief only
contains a request for the evidence to be stricken without any legal explanation.


                                            16
               3.     MCDONNELL DOUGLAS2 TEST

       “„California has adopted the three-stage burden-shifting test established by the

United States Supreme Court for trying claims of [employment] discrimination . . . .‟

[Citation.] [¶] „This so-called McDonnell Douglas test reflects the principle that direct

evidence of intentional discrimination is rare, and that such claims must usually be

proved circumstantially. Thus, by successive steps of increasingly narrow focus, the

test allows discrimination to be inferred from facts that create a reasonable likelihood of

bias and are not satisfactorily explained.‟ [Citation.]” (Wills v. Superior Court (2011)

195 Cal.App.4th 143, 159 (Wills).)

       “In the first stage, the plaintiff bears the burden to establish a prima facie case of

discrimination. [Citation.] The burden in this stage is „“not onerous”‟ [citation], and

the evidence necessary to satisfy it is minimal [citation].” (Wills, supra, 195

Cal.App.4th at p. 159.) “If the plaintiff meets this burden, „“„the burden shifts to the

defendant to [articulate a] legitimate nondiscriminatory reason for its employment

decision . . . .‟ . . .” [Citation.] This likewise is not an onerous burden [citation], and is

generally met by presenting admissible evidence showing the defendant‟s reason for its

employment decision [citation].” (Id. at p. 160.)

       “Finally, if the defendant presents evidence showing a legitimate,

nondiscriminatory reason, the burden again shifts to the plaintiff to establish the

defendant intentionally discriminated against him or her. [Citation.] The plaintiff may


       2   McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792.


                                              17
satisfy this burden by proving the legitimate reasons offered by the defendant were

false, creating an inference that those reasons served as a pretext for discrimination.

[Citation.]” (Wills, supra, 195 Cal.App.4th at p. 160.)

       “A defendant‟s summary judgment motion „slightly modifies the order of these

[McDonnell Douglas factors].‟ [Citation.] Consequently, [Edison] had the initial

burden to either (1) negate an essential element of [Plaintiffs‟] prima facie case

[citation] or (2) establish a legitimate, nondiscriminatory reason for terminating [or

demoting Plaintiffs] [citation].” (Wills, supra, 195 Cal.App.4th at p. 160.)

       “„[T]o avoid summary judgment [once the employer makes the foregoing

showing], an employee claiming discrimination must offer substantial evidence that the

employer‟s stated nondiscriminatory reason for the adverse action was untrue or

pretextual, or evidence the employer acted with a discriminatory animus, or a

combination of the two, such that a reasonable trier of fact could conclude the employer

engaged in intentional discrimination.‟ [Citation.] [¶] „As several federal courts have

stated: “The [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.] . . .”‟ [Citation.]” (Wills, supra, 195 Cal.App.4th at p. 160.)

              4.     LEGITIMATE REASON

       To establish a legitimate reason for disciplinary action, the employer must

“clearly set forth, through the introduction of admissible evidence, the reasons for the

[termination or demotion]. The explanation provided must be legally sufficient to


                                             18
justify a judgment for the [employer].” (Sada v. Robert F. Kennedy Medical Center

(1997) 56 Cal.App.4th 138, 149 (Sada).)

       We begin with Ragan‟s termination. The record includes memoranda from

Edison to Ragan admonishing Ragan for various safety violations and warning him that

future violations could lead to more severe disciplinary actions. The memoranda are

dated August 11, 2005; August 24, 2005; and July 27, 2006. The record also includes

Valenzuela‟s deposition testimony, which reflects Ragan was terminated because he

was not meeting Edison‟s safety standards. Further, the record includes the

investigative report related to the Chino Hills incident. A portion of the report

specifically concerns Ragan. The report reflects Ragan suffered four suspensions over a

four and a half-year period.3 The Chino Hills incident was the fifth incident in that time


       3  At oral argument, Plaintiffs argued that the “four suspensions” fact is incorrect.
Plaintiffs asserted this court incorrectly relied on a document reflecting Ragan suffered
four suspensions, but during Fernando Valenzuela‟s deposition he corrected that
typographical error: Valenzuela stated that instead of “four” the document he was
reading at the deposition should have reflected the word “your.” During Valenzuela‟s
deposition he was reading “Exhibit 6” and was asked, “Do you know . . . whether or not
Mr. Ragan was severely disciplined for four violations of corporate safety operating
policy within a year or less of October 31, 2006?” Valenzuela responded, “That is
incorrect. That‟s a typo in paragraph ten. Instead of four, it should be your.” The
Appellant‟s Appendix is missing pages 113 through 117 of the deposition where the
document comprising Exhibit 6 would have been identified. There is not a list of
exhibits included in the front or back of Valenzuela‟s deposition transcript. The
exhibits included in the Appellant‟s Appendix in the general vicinity of Valenzuela‟s
deposition transcript jump from No. 5 to No. 7. Thus, it is unclear what document
comprised Exhibit 6. However, contrary to Plaintiffs‟ oral argument, Valenzuela‟s
testimony is not particularly relevant to the “four suspension” issue.
        The “four suspensions” fact cited in this court‟s opinion is derived from a report
listing each of the individual four suspensions—not from a document with a single line
reading “four suspensions” that could contain the typographical error discussed during
                                                                [footnote continued on next page]


                                            19
period. Interrogatory responses reflect various supervisors approved of the decision to

terminate Ragan.

         Given the foregoing evidence, a trier of fact could find Edison terminated

Ragan‟s employment because he repeatedly disregarded Edison‟s policies related to

safety and conduct. The evidence in the record is thorough and consistent as to

Edison‟s reasons for firing Ragan. Thus, Edison has established a legitimate and

nondiscriminatory basis for terminating Ragan‟s employment.

         Next, we turn to the evidence related to McDowell. A letter from Edison to

McDowell dated July 17, 2006, reflects McDowell violated safety rules on May 19,

2006, and on July 19, 2005. The letter warned McDowell that future violations could

result in demotion or termination. A letter to McDowell concerning his demotion

provides, “The reason for this demotion is your poor job performance and violation of

the Accident Prevention Manual safety rules P20, 309b, 141b, 306c, P17, 306d, 143b,

P11a.”




[footnote continued from previous page]
Valenzuela‟s deposition. The report cited by this court is marked as Exhibit No. 10 for
the deposition of Norman Santiago. Thus, to the extent there is an error with the words
“four” and “your” in an unidentified document, that is not pertinent, because there is a
document in the record, reflecting (1) one incident in March 2002; (2) a second incident
on July 19, 2005; (3) a third incident on July 16, 2006; and (4) a fourth incident on
October 31, 2006. This report in the record then notes, “In the last four and a half years,
this employee has had five incidents that demonstrate poor judgment and disregard for
safety, and company policies,” i.e. the four prior incidents and the current incident.
Thus, to the extent there is a document that should read “your” instead of “four,” that is
not the document this court is relying upon in citing the “four suspensions” fact.


                                             20
       Santiago‟s deposition testimony reflects McDowell was demoted due to his

history of being disciplined, combined with the Chino Hills incident. Valenzuela‟s

deposition testimony reflects McDowell was demoted “for continual violation of the

safety rules taking the [Chino Hills] incident and prior incidents into consideration.”

       The investigative report related to the Chino Hills incident reflects McDowell

suffered a suspension in 2005 and a second suspension in 2006. The Chino Hills

incident was McDowell‟s third violation in a two-year period. Given the repeated and

consistent reasoning for Edison‟s decision to demote McDowell, we conclude Edison

had established it had a legitimate reason for demoting McDowell—his failure to

comply with Edison‟s safety standards.

              5.     PRETEXTUAL REASON

       Plaintiffs assert Edison‟s “justification[s] for the adverse employment actions are

unworthy of credence.” Plaintiffs contend the investigative report concerning the Chino

Hills incident was “„skewed‟ to favor the foregone conclusions” of people at Edison

“looking to harm Ragan.” In support of this theory, Plaintiffs cite Edison‟s Ethics and

Compliance Department‟s conclusion that Ragan violated safety rules during the Chino

Hills incident; the conclusion was made prior to the release of the safety committee‟s

investigative report. The document cited by Plaintiffs is the Ethics Department‟s case

report related to the Chino Hills incident. In the ethics report, the Ethics Department

concluded, “This does not appear to be an ethics issue . . . .” The report further

provides, “This issue is prompted by a safety rule violation by Mr. Ragan on November

17. The issue is currently being investigated by the district safety team and local


                                            21
management per normal procedures.” A plain reading of the report does not reflect a

“foregone conclusion” by the investigative committee. Rather, it reflects an ethics

report was generated due to an alleged safety rule violation that was being investigated.

Accordingly, we find Plaintiffs‟ reliance on the ethics report to be unpersuasive.

       The next item of proof Plaintiffs offer to support their theory the investigative

report was skewed to favor the conclusions of people wanting to harm Ragan is: “The

mysterious appearance of Cervantes at the Ontario District yard to lead investigator

Athearn over to the subject Burd switch in that yard, even though Cervantes was not

„part‟ of the investigation.” This court cannot decipher Plaintiffs‟ sentence. It appears

Plaintiffs are alleging a conspiracy because Cervantes, who is a supervisor at Edison,

suggested Athearn, who is a safety specialist at Edison, look at a BURD switch.

Cervantes testified Athearn‟s request for him to look at the BURD switch “seemed

pretty normal.” Thus, it is unclear exactly how Cervantes asking Athearn to look at the

switch is proof the investigative report was “rigged,” assuming that is the point

Plaintiffs were attempting to make.

       The third item of proof Plaintiffs offer to establish that the investigative report is

a sham is “Athearn‟s admission that Cervantes became „part of the investigative team.‟”

Athearn explained that Cervantes was able to join the investigative team “[a]ny time he

chooses to. He‟s a management supervisor of the crews. He can question [them] when

he feels the need to see what the work practices are.” Athearn stated any supervisor

could contribute to the investigation, even if the supervisor was not an official part of

the investigative team. Given Athearn‟s testimony, it is unclear how Cervantes‟s


                                             22
participation in the investigation would be suspicious, since supervisors were permitted

to make contributions to the investigation. Thus, we find Plaintiffs‟ argument to be

unpersuasive.

       A fourth item Plaintiffs offer to prove the investigative report is a façade is the

recommendation in the report that Ragan be terminated, which Plaintiffs assert was

made prior to the conclusion of the investigation. The citation provided by Plaintiffs is

to the transcript of Santiago‟s deposition. During Santiago‟s deposition he was asked

why “Exhibit 11” reflected Ragan was under investigation, but also recommended he be

terminated. Exhibit 11 is a report about the Chino Hills incident, which also includes

Ragan‟s record of discipline. Santiago said he could not say why the report reflected a

current investigation and recommended Ragan‟s termination.

       Exhibit 11 is a report reflecting Edison‟s investigative committee had twice

interviewed the crew members involved in the Chino Hills incident, and carefully

reviewed the inconsistencies in the crew members‟ statements. The report provides the

committee‟s conclusion that McDowell and Ragan violated an Edison safety procedure

by improperly connecting the grounding perches to the structure ground. In other

words, they were “working on de-energized cables without proper grounding.” A

portion of the report gives a chronological history of Ragan‟s discipline incidents. The

different incidents are titled by date, e.g. “July 19, 2005,” then a short description of the

incident and discipline is provided. At the end of the list is the most recent Chino Hills

incident. The title for the Chino Hills incident is “Current investigation for actions on

November 16, 2006.”


                                             23
       Rather than reflecting Ragan was still under investigation, a plain reading of the

document reflects the “current investigation” title was meant to inform the reader that

the November 16, 2006, incident was not one for which Ragan had already been

disciplined—it was the incident that was the subject of the report. A plain reading of

the report reflects the committee had concluded its investigation and was submitting its

final report recommending Ragan‟s termination. Thus it does not appear termination

was recommended prior to the conclusion of the investigation. As a result, we find

Plaintiffs‟ reliance on Santiago‟s testimony related to Exhibit 11 to be unpersuasive.

       Fifth, Plaintiffs cite to evidence that Santiago said he did not want to terminate

Ragan or demote McDowell, but that his “„hands were tied.‟” Plaintiffs‟ reliance on

this statement is not persuasive because it was explained that Santiago did not want to

take part in the investigation because Santiago and McDowell “had been friends for a

lot of years.” The statement does not reflect Santiago‟s belief that the discipline was

undeserved. Rather, it appears to reflect a sadness that long-term Edison employees,

including a friend, needed to be disciplined. Santiago‟s hands could have “been tied”

because Ragan and McDowell did make safety errors, not because there was a

conspiracy against Plaintiffs. In sum, Santiago‟s hearsay statement does not reflect that

Edison‟s reasoning was pretextual.

       Sixth, Plaintiffs cite to Cervantes‟s admission that the replacement foreman at the

Chino Hills incident also violated safety rules but was not disciplined. Contrary to

Plaintiffs‟ position, Cervantes‟s testimony reflects the replacement foreman was

disciplined for committing a safety violation; he was “orally reprimanded.” Cervantes


                                            24
told the replacement foreman if he made the same error again then there would be

“severe consequences.” Cervantes recorded the oral reprimand in his personal journal

and discussed it at a staff meeting with other supervisors. It is unclear whether the

replacement foreman had a history of safety violations, or if this was the first time he

was disciplined. Accordingly, we are not persuaded by Plaintiffs‟ reliance on this

evidence, because Plaintiffs had received less severe discipline themselves, such as

suspensions, for prior safety violations.

       Seventh, Plaintiffs assert Edison‟s reasoning is pretextual because the standing

safety committee did not conduct the investigation into the Chino Hills incident. It is

unclear why Plaintiffs find this problematic, as it appears the committee investigating

the Chino Hills incident was headed by a longtime friend of McDowell, Santiago, who

stated he had no desire to be involved in disciplining the two men. In Plaintiffs‟ reply

brief they assert it is obvious that not using the standing safety committee shows Edison

did not have a legitimate reason for disciplining Plaintiffs. We do not agree that it is

obvious. Since the investigative committee was headed by McDowell‟s longtime

friend, there does not appear to be an invidious purpose for not using the standing

committee.

       In sum, Plaintiffs have not shown Edison‟s report was skewed and have not

established a possibility that Edison lacked a legitimate reason for the disciplinary

action. Plaintiffs have failed to provide substantial evidence establishing Edison‟s

stated nondiscriminatory reason for the adverse action was untrue or pretextual. As a

result, we conclude the trial court did not err by granting summary judgment.


                                            25
       Relying on Sada, supra, 56 Cal.App.4th 138, Plaintiffs assert their declarations

denying having committed safety violations should be sufficient to defeat Edison‟s

summary judgment motion. In Sada, the appellate court found the employer‟s evidence

was “general and sometimes conclusory.” (Id. at p. 153.) As a result, the appellate

court could not conclude the employer had a legitimate reason for not hiring the

plaintiff. (Id. at pp. 153-154.)

       Further, the Sada record included evidence of (1) a supervisor making derogatory

comments about Hispanic people to the plaintiff and an employee, and (2) unfavorable

statements by the supervisor, made during the plaintiff‟s interview, concerning the

plaintiff‟s Mexican heritage. (Sada, supra, 56 Cal.App.4th at p. 145.) The record also

included evidence of the supervisor lying to the plaintiff about available job openings—

telling the plaintiff there were not openings when there were openings. (Id. at p. 146.)

The appellate court concluded the plaintiff “presented sufficient evidence to raise a

triable issue as to pretext,” because the evidence permitted an inference that the

employer did not consider the merits of the plaintiff‟s job application, and instead made

a hiring decision based upon the plaintiff‟s national origin and ancestry. (Id. at p. 154.)

Thus, the appellate court concluded the employer did not establish a legitimate reason

for declining to hire the plaintiff, but the plaintiff established a possible discriminatory

reason for the hiring decision. (Id. at pp. 154-155.)

       First, it is important to note, the Sada plaintiff appears to have established her

case by relying on a different prong of the test than Plaintiffs in the instant case. The

Sada plaintiff showed the employment decision was likely motivated by a


                                             26
discriminatory intent, while Plaintiffs in this case have tried to establish Edison‟s stated

reasons for its adverse actions were not credible. So, we are addressing different prongs

of the test, which is not ideal. (See Nelson v. United Technologies (1999) 74

Cal.App.4th 597, 614 [setting forth the two different prongs].) Nevertheless we will

address Plaintiffs‟ Sada argument.

       Plaintiffs‟ reliance on Sada is not persuasive because in the instant case Plaintiffs

are relying on their statements that they did not violate the safety rules. The flaw in this

argument is that good cause for termination is a fair and honest reason, regulated by

good faith on the part of the exercising party, as opposed to a trivial reason or a

pretextual reason. (Nelson v. United Technologies, supra, 74 Cal.App.4th at p. 616.) If

Plaintiffs are correct that they did not commit safety violations during the Chino Hills

incident, the evidence still reflects Edison‟s belief Plaintiffs did violate the safety

standards, even if it is a mistaken belief. In other words, the evidence reflects Edison

believes Plaintiffs violated the safety rules; the evidence is replete with Edison‟s

conclusion that Plaintiffs did not follow the proper safety protocols.

       Thus, the record does not indicate Plaintiffs were disciplined for an improper

reason. At most it indicates Edison made a mistake, but FEHA does not protect

employees from mistakes, it protects employees from discrimination. (See McRae v.

Department of Corrections and Rehabilitation (2006) 142 Cal.App.4th 377, 388-389

[proving the employer made a mistake is not sufficient, a plaintiff must show the

employer did not act for the claimed nondiscriminatory reason]; see also Wills, supra,

195 Cal.App.4th at p. 160 [“The [employee] cannot simply show that the employer‟s


                                              27
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”].) In sum, the trial court did not err by concluding

Plaintiffs failed to raise a triable issue of material fact.

                                         DISPOSITION

       The judgment is affirmed. Respondent, Southern California Edison Company, is

awarded its costs on appeal.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                           MILLER
                                                                                      J.


We concur:


HOLLENHORST
                         Acting P. J.


KING
                                    J.




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