Filed 10/28/15 Valencia v. United Domestic Workers of America CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----


MANUEL VALENCIA,                                                                             C074086

                   Plaintiff and Appellant,                                          (Super. Ct. No.
                                                                               3420110016444CUWTGDS)
         v.

UNITED DOMESTIC WORKERS OF AMERICA,

                   Defendant and Respondent.




         Plaintiff Manuel Valencia worked for defendant United Domestic Workers of
America, AFSCME Local 3930, AFL-CIO (United Domestic) for five months as an
assistant legislative director. After five months, plaintiff’s position was eliminated.
Plaintiff filed suit against United Domestic, alleging his termination was motivated by
discriminatory intent based on a disability and constituted retaliation for his complaints
about disability discrimination. United Domestic moved for summary judgment and the
trial court granted the motion. Plaintiff appeals, alleging United Domestic’s actions were
not for legitimate business reasons and that he was subject to an ongoing pattern of
discrimination. We shall affirm the judgment.



                                                             1
                               STANDARD OF REVIEW
       A defendant moving for summary judgment must show that the plaintiff cannot
establish one or more elements of the cause of action or cannot refute an affirmative
defense established by the defendant. (Code Civ. Proc., § 437c, subd. (o).) “From
commencement to conclusion, the moving party bears the burden of persuasion that there
is no genuine issue of material fact and that he is entitled to judgment as a matter of law.
There is a genuine issue of material fact if, and only if, the evidence would allow a
reasonable trier of fact to find the underlying fact in favor of the party opposing the
motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 845, fn. omitted; see Slovensky v. Friedman (2006)
142 Cal.App.4th 1518, 1522.)
       We review de novo the record and the determination of the trial court. (Merrill v.
Navegar, Inc. (2001) 26 Cal.4th 465, 476.) First, we identify the issues raised by the
pleadings, since it is these allegations to which the motion must respond. Second, we
determine whether the moving party’s showing has established facts negating the
opponent’s claims and justifying a judgment in the moving party’s favor. When a
summary judgment motion prima facie justifies a judgment, the final step is to determine
whether the opposition demonstrates the existence of a triable issue of material fact.
(Barclay v. Jesse M. Lange Distributor, Inc. (2005) 129 Cal.App.4th 281, 290.)
       When an employee alleges employment discrimination, the employee must first
establish a prima facie case of discrimination. The employer can then rebut the
employee’s claim by offering a legitimate, nondiscriminatory reason for its employment
decision. If substantial evidence is offered in support, the employer is entitled to
summary judgment unless the plaintiff produces substantial responsive evidence that
raises a triable issue of fact material to the employer’s showing. (Guz v. Bechtel
National, Inc. (2000) 24 Cal.4th 317, 356-357 (Guz); Scotch v. Art Institute of California
(2009) 173 Cal.App.4th 986, 1005.) The evidence must demonstrate the existence of a

                                              2
material controversy as to pretext or discriminatory animus on the part of the employer.
(University of Southern California v. Superior Court (1990) 222 Cal.App.3d 1028, 1039;
Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1735.) It is not
enough to make a bare prima facie showing or to simply deny the credibility of the
employer’s witnesses or to speculate as to discriminatory motive. (Hersant v.
Department of Social Services (1997) 57 Cal.App.4th 997, 1004-1005; Compton v. City
of Santee (1993) 12 Cal.App.4th 591, 595-596; Wallis v. J.R. Simplot Co. (1994) 26 F.3d
885, 890.)
       Moreover, the employee will not prevail by simply showing the employer’s
decision was wrong or mistaken, since the factual dispute is over whether discriminatory
animus motivated the employer, not whether the employer is wise, shrewd, prudent, or
competent. Instead, the employee must demonstrate such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate
reasons for its actions that a trier of fact could legitimately find them “ ‘unworthy of
credence’ ” and infer that the employer did not act for the asserted nondiscriminatory
reason; the employee must show that the employer’s proffered reason is pretextual.
(Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 342-343 (Arteaga); see also
McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 [36 L.Ed.2d 668] (McDonnell
Douglas).) The ultimate issue is simply whether the employer acted with a motive to
discriminate. (Guz, supra, 24 Cal.4th at p. 358.) On summary judgment, the question is
whether a triable issue of fact exists as to the employer’s motivations.
       With these considerations in mind, we summarize the pertinent allegations of the
complaint and motion for summary judgment along with relevant portions of the parties’
separate statements of disputed and undisputed facts and supporting evidence. We then
assess the motion in light of the parties’ factual showings and standards of review to
determine whether triable issues of fact remain.



                                              3
                 FACTUAL AND PROCEDURAL BACKGROUND
The Complaint
       The complaint sets forth three “causes of action”: FEHA disability discrimination
(Cal. Fair Employment & Housing Act; Gov. Code, § 12900 et seq.), FEHA retaliation,
and wrongful termination in violation of public policy.
       As to the first two causes of action, plaintiff alleges the following ultimate facts:
that he is a person with physical and psychological disabilities, as defined by FEHA,
including an anxiety disorder that renders him unable to fly. Though granted an
accommodation, his supervisor, Jovan Agee, director of political and legislative affairs,
nonetheless chastised him for the disability in person and in a performance evaluation,
and later stripped him of his supervisory authority. United Domestic then demoted him,
placed him on administrated leave, terminated his lobbyist registration, and ultimately
terminated his employment.
       With respect to the second cause of action for retaliation, the complaint alleges
that plaintiff filed a discrimination charge with the Equal Employment Opportunity
Commission (EEOC) and informed Agee he had a February 1, 2011, meeting with the
EEOC to discuss the charge. On February 3 United Domestic terminated his
employment. Plaintiff’s complaints of disability harassment and discrimination were
motivating factors for the decision to terminate his employment.
       With respect to the third cause of action for wrongful termination in violation of
public policy, the complaint alleges that United Domestic’s decision to terminate plaintiff
was motivated by his status as a person with disabilities, and/or his requests for
accommodation, and/or his complaints about illegal discrimination.
Summary Judgment Motion
       United Domestic filed a general denial to the complaint and moved for summary
judgment or summary adjudication. The motion, accompanied by United Domestic’s



                                              4
separate statement of undisputed facts, supporting declarations, and other exhibits, sets
forth the following account of relations between plaintiff and United Domestic:
       United Domestic
       United Domestic is a labor union affiliated with the American Federation of State,
County and Municipal Employees. The union represents employees working in the in-
home supportive services (IHSS) system who provide home care services for eligible
clients. United Domestic represents IHSS workers for collective bargaining purposes.
United Domestic has a staff of approximately 73 employees who work in various offices
throughout the state.
       Each employee is provided an employee handbook. Under the terms of the
handbook, plaintiff was employed on an at-will basis and could be terminated at any time
without cause. In addition, the handbook provides that disabled employees shall be
provided reasonable accommodation where the disability involved affects performance of
job functions. United Domestic gave plaintiff a copy of the handbook, which he
reviewed.
       United Domestic’s 2010 Reorganization and Plaintiff’s Hiring
       Prior to hiring plaintiff, in spring 2010 United Domestic began reorganizing its
political and legislative department. The reorganization resulted in the creation of the
positions of assistant legislative director and assistant political director, to work under the
supervision of Agee. United Domestic created five regional political coordinators who
reported to the assistant political director.
       United Domestic hired plaintiff, a graduate of UC Davis School of Law, on
August 27, 2010, as assistant legislative director. The job description stated plaintiff’s
duties were to “assist in coordinating [United Domestic’s] advocacy to California
Legislators, state agencies, and statewide elected officials, primarily through lobbying,
relationship-building with decision-makers, policy analysis, and training member
activists.” The job also included the “[a]bility to travel and willing[ness] to work long

                                                5
hours and weekends, as needed.” Plaintiff shared supervision of the regional political
coordinators with assistant political director Mathew Kostrinsky.
       During his employment, United Domestic assigned plaintiff to a variety of work
outside of his job description, including political advocacy work supervised by
Kostrinsky, assignments normally delegated to regional political coordinators, budgetary
analysis normally handled by political and legislative department budget and policy
analyst Kristina Bas Hamilton, litigation discovery work in pending lawsuits, and media
communications. During his employment, plaintiff traveled for work in other counties,
including Merced, Modesto, and San Diego.
       Plaintiff states that shortly after he began working for United Domestic, he told
Agee he was unable to travel by airplane because of an anxiety disorder. Plaintiff
requested that he not be required to fly. On at least two occasions, Agee granted
plaintiff’s request. Plaintiff attended a staff meeting in San Diego by video conference
and drove to a second San Diego meeting.
       Further Restructuring
       United Domestic’s executive director, Doug Moore, is the union’s chief executive,
with sole authority to make organizational changes, including creating or eliminating
staff positions and changing job descriptions and titles. Only Moore can hire United
Domestic employees, terminate their employment, or approve disciplinary measures.
       On September 13, 2010, Moore advised senior staff, including Agee, that after
reviewing e-mails between executive and senior staff it was clear there was confusion
over roles and responsibilities. Two weeks later, Moore announced a reorganization in
early 2011 caused by “departmental feuds.” Moore stated, “I will . . . announce future
staff restructuring in early 2011 that will alleviate this internal bickering.” The e-mail
announcing the reorganization was sent to staff, including plaintiff.
       On November 12, 2010, Agee sent an e-mail to Moore recommending that United
Domestic discharge plaintiff and Kostrinsky for inadequate performance. According to

                                              6
Agee, the political and legislative department suffered from internal dysfunction because
plaintiff and Kostrinsky could not work together. Agee recommended their two positions
be consolidated into one position that would handle all “political/legislative activities at
the local level that I now deal with on the state level.” The position would be called
“Assistant Political and Legislative Director,” and Agee believed the consolidation would
eliminate the dysfunction in the department.
       However, Moore did not terminate plaintiff and Kostrinsky. Instead, in
December 2010 Moore moved the regional political coordinators from the joint
supervision of plaintiff and Kostrinsky to supervision by Kostrinsky alone. Moore
wanted the coordinators to focus on local political work, as opposed to the legislative
work that plaintiff supervised.
       On December 14, 2010, Agee notified plaintiff of the change when he gave
plaintiff his only written performance evaluation. According to Agee, plaintiff could
continue to assign work to the regional political coordinators, but only after obtaining
Kostrinsky’s or Agee’s approval.
       Plaintiff’s Response
       Plaintiff sent an e-mail to United Domestic’s human resources director, Manuel
Bejarano, on January 2, 2011. According to plaintiff, Agee harassed him and subjected
him to a hostile work environment; Agee told plaintiff to overcome his disability, the
anxiety disorder that prevented him from flying; and Agee stripped plaintiff of his
supervision of the regional political coordinators without cause. Plaintiff provided a
medical note supporting his request for a work accommodation “to travel by automobile
when necessary.” He asked United Domestic to help him in dealing with Agee because
“under the current hostile work environment, it is physically and emotionally unhealthy
for me to deal with [Agee] in the workplace.”
       United Domestic placed plaintiff on paid administrative leave and commenced an
investigation. The union interviewed Agee, plaintiff, and other employees. United

                                               7
Domestic determined that, although plaintiff’s December 14 performance evaluation did
not explicitly discuss any medical condition or flying, Agee had orally advised plaintiff
that the word “obstacles” in the performance evaluation referred to plaintiff’s “fear of
flying.”
       On January 10 United Domestic met with plaintiff. Plaintiff asked for an
accommodation by granting him “the ability to drive; the ability to use our video-
conference system that was recently set-up and teleconference.” United Domestic then
provided plaintiff with a written memorandum stating it would remove the December 14
evaluation from his personnel file and would not require him to travel by plane for work.
In addition, United Domestic directed plaintiff to return to work from administrative
leave on January 18, 2011. United Domestic suspended Agee without pay for
10 working days for e-mailing a political and legislative department staff member in
violation of Moore’s instruction and for mishandling plaintiff’s evaluation.
       Prior to plaintiff’s return, Jeremy Wright, a regional political consultant, informed
United Domestic he was taking medical leave for an indeterminate period of time. The
union temporarily assigned some of Wright’s duties to plaintiff. On January 18 Agee
gave plaintiff various assignments, including drafting policy analyses for three legislative
bills, performing budget analysis, and filling in for Wright in his absence. Agee also told
plaintiff United Domestic was revoking his lobbyist registration because the union would
not be sponsoring legislation in 2011. United Domestic needed plaintiff to assist with
budget alternatives and to fill in “where we have voids in our regions.” Plaintiff’s pay
and title were not changed.
       On January 19 plaintiff informed United Domestic that Agee had retaliated against
him by revoking his lobbyist registration. Moore met with plaintiff and agreed to let him
retain his lobbyist registration. Moore also informed plaintiff he would be temporarily
relocated to Bakersfield, where Wright had been stationed. The reassignment would last



                                             8
less than three months and plaintiff would resume his lobbying duties afterward. Plaintiff
agreed.
       However, a few days later, plaintiff notified United Domestic he could not relocate
for medical reasons. Plaintiff had a weekly appointment in Sacramento, and making the
drive back and forth “would prove too onerous on me, physically and mentally.” In
addition, plaintiff had special dietary needs that required “a refrigerator and proper
cooking facilities.” United Domestic offered to accommodate plaintiff by paying for
housing that had a refrigerator and cooking facilities, and changing his out-of-town work
schedule to Monday through Wednesday, permitting him to drive back during work hours
on Thursdays in order to make his Friday appointments. The union also requested
plaintiff supply medical documentation to support his request.
       Plaintiff, on January 30, gave United Domestic a medical note stating his
treatment consisted of weekly one-hour appointments, and plaintiff needed to be in
Sacramento four days a week in order to ”engage fully in treatment.” The following day,
plaintiff advised Bejarano and Agee that he was taking off February 1 to meet with an
EEOC investigator.
       2011 Reorganization
       On February 1 Moore decided to eliminate the positions of assistant legislative
director, the regional political consultant for Riverside, and a lead organizer position in
Orange County. That day, United Domestic sent an e-mail to plaintiff stating that based
on his medical note, the union believed plaintiff was “unable or unwilling to carry out the
temporary assignment in the Bakersfield field office,” and that he would be placed on
paid administrative leave while the union considered “this new information.” The e-mail
requested that plaintiff meet with United Domestic on February 4 to discuss his
employment situation.
       On February 3 plaintiff notified United Domestic that he would not meet to
discuss his employment. Plaintiff also notified the union that he had filed a charge of

                                              9
discrimination with the California Department of Fair Employment and Housing.
Bejarano responded that plaintiff’s failure to meet would be considered insubordination.
       Plaintiff repeated in writing his refusal to meet with United Domestic. In an e-
mail, Bejarano informed plaintiff that “[b]ecause you have refused to attend the meeting,
we will communicate to you in this letter what we were going to tell you in person.”
Bejarano stated that as part of a staff reorganization and reduction in force necessitated
by cuts to the IHSS program, United Domestic was eliminating the assistant legislative
director position. One purpose of the proposed meeting would have been to ascertain
plaintiff’s interest in being considered for any other open staff position. In the e-mail,
Bejarano stated United Domestic was “still willing to have this conversation, if you so
desire.” Plaintiff never responded to Bejarano’s e-mail, believing the e-mail was his
termination letter.
       On February 4, 2011, Bejarano flew to Sacramento to meet with plaintiff. Plaintiff
did not appear at the scheduled meeting, nor did he reschedule. Later that day, United
Domestic again mailed plaintiff notice of his position’s elimination but also noted, “We
will meet with you to ascertain your interest in being considered for any other open staff
position.” Plaintiff failed to respond to this second offer. February 4, 2011, was also
plaintiff’s last day of employment. His duties at United Domestic were either eliminated
or absorbed by existing positions.
       United Domestic’s Further Reorganization
       By late March 2011 United Domestic’s reorganization had resulted in the
elimination of eight positions and the creation of five new positions. The eliminated
positions included assistant legislative director, assistant political director, all five
regional political coordinators, and one lead organizer position. The newly created
positions included chief of staff, assistant political and legislative director, assistant
field/political campaign director, and two budget/junior policy analysts. Employees in



                                               10
eliminated positions were given the opportunity to transfer within United Domestic or
apply for the newly created positions, which were only posted internally.
       United Domestic reorganized further in August 2011, and again the organization
created new positions. The chief of staff position was eliminated. The following month
United Domestic eliminated the assistant political and legislative director position.
Again, employees whose positions were eliminated were offered alternative employment
in the organization.
Plaintiff’s Opposition
       As an employment discrimination case evolves, the plaintiff must commonly
counter evidence by the employer that the adverse employment action was taken for a
legitimate nondiscriminatory reason with evidence that the employer’s stated reasons
were not its true reasons, but were a pretext for discrimination. The employer’s motives
are also crucial in assessing claims of retaliation and wrongful termination in violation of
public policy. The plaintiff must frequently offer evidence that the motive for the
adverse action taken was not as represented by the defendant employer. The evidence
offered by the parties may conflict, and it is not our task in a summary judgment
proceeding to resolve the conflict; the plaintiff need only establish a triable issue of
material fact as to the reason for his or her termination. (McDonnell Douglas, supra,
411 U.S. 792; Guz, supra, 24 Cal.4th at p. 358; Arteaga, supra, 163 Cal.App.4th at
pp. 342-343.) Here, the trial court found plaintiff failed to offer evidence demonstrating
the adverse employment actions were a response by United Domestic to plaintiff’s
anxiety disorder, or to his complaints of discrimination. Plaintiff insists he presented
numerous triable issues of fact in that regard, as set forth in his statement of disputed and
undisputed facts and in his briefing on appeal.
       First, plaintiff contends the record established a link between his disability and his
supervisory duties being taken away from him. When he was hired, plaintiff argues, his
duties included direct supervision of the regional political coordinators. After he

                                              11
informed his supervisor of his inability to fly due to general anxiety disorder, United
Domestic stripped plaintiff of those supervisory duties. Therefore, plaintiff argues it is
reasonable to infer that he was stripped of those duties because his disability interfered
with his ability to meet with the regional political coordinators.
       Prior to plaintiff’s hiring, the assistant legislative director position had no
supervisory authority over the regional political coordinators, who fell under the purview
of the assistant political director. In September 2010 Moore approved plaintiff’s
authority over the regional political coordinators. In early December 2010 Moore
returned supervision of the regional political coordinators from the assistant legislative
director, plaintiff, to the assistant political director, Kostrinsky. In an e-mail the day of
the transition, Moore expressed a desire that the regional political coordinators focus on
local political work, under Kostrinsky, as opposed to legislative duties, under plaintiff.
       Plaintiff cites Agee’s testimony that it was his idea to strip plaintiff of his
supervisory duties and that he did so. However, the record reveals Moore alone
possessed the authority to remove plaintiff’s supervisory duties over the regional political
coordinators. Moore, as United Domestic’s executive director, had the sole authority to
make staff changes, including changing job descriptions or job titles. While other senior
staff might make recommendations, Moore had the final say. He was the only United
Domestic supervisor with the authority to hire, fire, or approve discipline of employees.
Plaintiff presented no evidence that Moore knew of his accommodation requests or
medical condition prior to relieving plaintiff of his supervisory duties.
       Plaintiff also claims his negative evaluation was motivated by his general anxiety
disorder and its impact on his ability to travel. The negative evaluation, plaintiff argues,
was part of a larger pattern of adverse actions. A negative evaluation is actionable only if
used as a basis to detrimentally alter the terms and conditions of the plaintiff’s
employment. (Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1456.)



                                              12
       Here, United Domestic rescinded plaintiff’s December 14, 2010, performance
review in its entirety on January 11, 2011, following an investigation into plaintiff’s
allegations against Agee. The rescission took place nine days after plaintiff complained
about Agee’s evaluation and was accompanied by a formal written memorandum by
United Domestic advising him of the removal and telling him he would not be required to
travel by plane. Plaintiff argues, “the fact remains that Respondent attempted to give the
negative evaluation.” However, plaintiff offers no evidence that the negative evaluation,
quickly rescinded, was used as a basis to alter his employment status.
       In addition, according to plaintiff, the record also establishes a retaliatory link
between his disability and United Domestic’s termination of his lobbyist registration. He
argues he was “temporarily demoted” when United Domestic “informed him of its intent
to rescind his lobbyist registration.”
       Moore decided to terminate plaintiff’s lobbying registration because United
Domestic did not intend to sponsor legislation in 2011, a decision Agee told plaintiff
about on January 18, 2011. After Agee notified plaintiff of the decision, plaintiff stated
he believed the move was retaliatory. Moore met with plaintiff on January 21, 2011, and
agreed not to terminate his lobbying rights. Whatever plaintiff may have believed, as
with Agee’s negative evaluation, the rescinded decision to terminate plaintiff’s lobbying
registration does not support plaintiff’s claim of an adverse employment action.
       Plaintiff argues United Domestic discriminated against him by attempting to
transfer him to Bakersfield. The transfer, plaintiff contends, was unwanted and far from
the Sacramento location that was conducive to the performance of his lobbying duties.
       After regional political consultant Wright notified United Domestic in January
2011 that he was taking an open-ended medical leave, Agee assigned plaintiff to help
cover for Wright. Subsequently, Moore told plaintiff he would be temporarily relocated
to Bakersfield, where Wright had been stationed. The reassignment would last no more
than three months, and at the conclusion, plaintiff would resume his lobbying duties.

                                              13
Plaintiff agreed to the assignment. However, a few days later, plaintiff refused the
transfer based on his medical condition. In response, United Domestic offered to
accommodate plaintiff by paying for housing with appropriate facilities and scheduling
him for Monday through Wednesday to permit him to drive home on Thursdays for his
Friday medical appointments in Sacramento. United Domestic presented a legitimate
reason for transferring plaintiff to Bakersfield and attempted to accommodate his medical
needs. Ultimately, plaintiff never transferred to Bakersfield. United Domestic’s
attempted transfer of plaintiff to Bakersfield does not support his claim that it used
Wright’s leave as a pretext for disability discrimination.
       Plaintiff contends that United Domestic’s decision to place him on unwanted
administrative leave was in retaliation for his submission of a note from his doctor. He
terms United Domestic’s action as “unwarranted discipline and discriminatory
retaliation.”
       United Domestic put plaintiff on paid administrative leave for four days on
February 1, 2011, following his refusal to perform Wright’s duties and relocate despite
his earlier agreement. After plaintiff notified United Domestic that he needed a work
location restriction to Sacramento and had dietary restrictions that restricted his ability to
travel, United Domestic agreed to accommodate the requests but asked for supporting
documentation from a physician. United Domestic believed the note provided did not
relate to plaintiff’s accommodation requests, placed him on paid leave, and requested that
he further discuss his accommodation request. Clearly, plaintiff’s paid leave was not
“retaliation” or an adverse employment action, but a response to his rejection of a work
assignment and changing accommodation requests.
       Finally, plaintiff argues the record contains direct evidence of United Domestic’s
discriminatory animus against him. He cites evidence that his supervisor expected him to
resolve his disability and cure his fear of flying. In addition, he argues, United
Domestic’s own internal investigation revealed that plaintiff’s disability played an

                                              14
improper part in his evaluation and that his supervisor was disciplined for that. But he
ignores the progression of events leading up to his termination as a record that establishes
a legitimate reason for United Domestic’s action. After United Domestic placed plaintiff
on paid administrative leave, it sent an e-mail on February 1, 2011, directing him to meet
with Bejarano and Gary Voice, director of finance and administration, on February 4,
2011, to discuss his employment situation. On February 3, 2011, plaintiff told United
Domestic he would not meet to discuss his employment. Bejarano responded that
plaintiff’s failure to meet would be considered insubordination. Plaintiff reasserted his
refusal to meet with United Domestic representatives.
       In response, Bejarano notified plaintiff that “[b]ecause you have refused to attend
the meeting, we will communicate to you in this letter what we were going to tell you in
person.” As part of the staff reorganization and budget cuts, United Domestic was
eliminating the assistant legislative director position. The e-mail also stated: “The
second purpose of tomorrow’s meeting was to ascertain your interest in being considered
for any other open staff position. We are still willing to have this conversation if you so
desire. If so, please contact me to make arrangements.
       “Your last day of work in your current position will be February 4, 2011, though
you will be paid for the current pay period through February 15, 2011. You also [will] be
paid for your unused vacation balance.”
       United Domestic also sent plaintiff a letter on February 4, 2011, reiterating the
points made in the earlier e-mail. Plaintiff failed to respond to either missive.
       As plaintiff acknowledges, during United Domestic’s 2011 reorganization, “no
employee whose position was eliminated was laid off, where they agreed to transfer or
apply for alternative employment with [United Domestic].” However, plaintiff argues
that he was the “only one who was terminated as a result of the ‘reorganization.’ ”
According to plaintiff, his termination resulted from United Domestic’s retaliation for his
inability to travel for his job.

                                             15
       We disagree. Plaintiff refused United Domestic’s repeated requests to meet before
his termination to discuss continuing employment. United Domestic accommodated
every other employee impacted by the reorganization; plaintiff’s intransigence led to his
ultimate termination. All along the way, United Domestic attempted to respond to
plaintiff’s complaints about his supervisor’s mistreatment. It rescinded the negative
evaluation, restored plaintiff’s lobbying status, and attempted to accommodate his new
requirements in the Bakersfield transfer. However, when United Domestic asked
plaintiff to discuss alternative positions within the organization, plaintiff flatly refused.
We find the trial court did not err in granting summary judgment, since plaintiff failed to
establish a triable issue of fact as to whether his asserted disability had any connection to
his termination.
       This failure also dooms plaintiff’s cause of action for retaliation. The trial court
correctly found: “. . . Plaintiff has failed to demonstrate any evidence which would give
rise to a triable issue of fact that [United Domestic’s] actions in restructuring [its]
operations and changing Plaintiff’s position, title and duties was in retaliation for any
protected activity engaged in by Plaintiff.”
       Plaintiff claims United Domestic retaliated against him after he filed a
discrimination charge with the EEOC on January 4, 2011. However, plaintiff presents no
evidence that United Domestic was aware of the complaint before his termination.
Instead, plaintiff states he advised Agee on January 31, 2011, that he had a February 1,
2011, meeting with the EEOC. “It can reasonably be inferred, therefore, that as [United
Domestic] was aware of [plaintiff’s] meeting with EEOC shortly before it decided to
eliminate his position, the fact that he was doing so was a substantial factor in eliminating
his position.” We are not persuaded by plaintiff’s attempt to link his termination to his
pursuit of an EEOC claim. Although plaintiff’s supervisor was aware of an impending
meeting, there is no evidence that Moore, who made the final decision, knew of the



                                               16
meeting. Instead, as we have determined, plaintiff’s termination was based on his refusal
to meet with United Domestic to pursue other employment opportunities.
      Plaintiff has failed to establish a material factual dispute as to whether
discriminatory animus was behind any of United Domestic’s actions.
                                     DISPOSITION
      The judgment is affirmed. United Domestic shall recover costs on appeal.



                                                            RAYE               , P. J.



We concur:



        BLEASE             , J.



        BUTZ               , J.




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