Filed 11/14/13 Padayao v. Island Hospitality Management 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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


CHERRYMAE PADAYAO et al.,                                            H037990
                                                                    (Santa Clara County
         Plaintiffs and Appellants,                                  Super. Ct. No. 1-10-CV165137)

         v.

ISLAND HOSPITALITY
MANAGEMENT, INC.,

         Defendant and Respondent.


                                              I. INTRODUCTION
         Appellants Cherrymae Padayao and Vivica Victug (plaintiffs) were employed by
respondent Island Hospitality Management, Inc. (Island Hospitality) from 1990 until
2009, when they were terminated from their positions as housekeeping supervisors at a
hotel. Plaintiffs, who are both Filipino, filed a wrongful termination action alleging that
Island Hospitality’s decision to terminate them was based upon their race and/or national
origin. Plaintiffs’ complaint included causes of action for discrimination in violation of
the Fair Employment and Housing Act (Gov. Code, § 12940) and wrongful termination
in violation of public policy.
         Island Hospitality moved for summary judgment on the ground that the undisputed
facts showed that plaintiffs were terminated for nondiscriminatory reasons: their failure
to ensure that hotel rooms were clean and, in Padayao’s case, her failure to follow
procedures regarding the hotel’s pet log. The trial court granted the summary judgment
motion, finding that no triable issue of fact existed because plaintiffs failed to present
substantial evidence showing that Island Hospitality’s reasons for the terminations were
pretextual or that Island Hospitality had acted with discriminatory intent.
       On appeal, plaintiffs contend that a triable issue of fact exists as to whether Island
Hospitality terminated them due to their race and/or national origin. For the reasons
stated below, we determine that Island Hospitality met its burden on summary judgment
to show legitimate, nondiscriminatory reasons for terminating plaintiffs. (See Guz v.
Bechtel National, Inc. (2000) 24 Cal.4th 317, 357 (Guz).) We also determine that
plaintiffs produced no substantial evidence from which it could be reasonably inferred
that Island Hospitality terminated them on the basis of their race and/or national origin.
(See id. at p. 360.) Therefore, we will affirm the judgment in Island Hospitality’s favor.

                             II. FACTUAL BACKGROUND
       Our factual summary is drawn primarily from the parties’ separate statements of
fact submitted in connection with Island Hospitality’s motion for summary judgment. In
setting out the facts we regard as material, we will note those that plaintiffs have
disputed.
       Plaintiffs are both Filipino. Both worked as housekeeping supervisors at the
Residence Inn by Marriott (the hotel) in Sunnyvale, which is managed by Island
Hospitality. Both had worked at the hotel since 1990. As housekeeping supervisors,
plaintiffs were responsible for inspecting rooms that had been cleaned by housekeepers,
then designating the rooms as “guest-ready” if the rooms were in fact clean. Plaintiffs
reported to the executive housekeeper.
       The hotel allowed guests to keep pets in the rooms, and a pet log was maintained
to ensure the housekeeping staff provided additional cleaning after the pet stay. The pet
log entries were made by the housekeeping supervisors or the executive housekeeper.



                                              2
       In December of 2008, Island Hospitality hired Kathy McClintock, who is of
Mexican heritage, as the executive housekeeper. McClintock was informed that the hotel
had a history of low scores on guest satisfaction surveys. The prior executive
housekeeper had been disciplined, and ultimately terminated, for failing to improve the
housekeeping department’s performance and survey scores.
       According to McClintock, after she was hired she met with the hotel’s
housekeeping staff, including plaintiffs, to review their job duties and the hotel’s
housekeeping policies and procedures. Plaintiffs both denied that they met with
McClintock.
       A.      Vitug’s Termination
       In a declaration, McClintock claimed she reviewed the housekeeping policies and
procedures with Vitug on December 22, 2008, after finding that rooms designated by
Vitug as “guest-ready” had not been cleaned in compliance with those policies and
procedures. In her own declaration, Vitug disputed that she had designated as “guest-
ready” any rooms that were not completely clean, and she disputed that McClintock
reviewed any policies or procedures with her on that date.
       McClintock claimed that on January 14, 2009, she found that more rooms
designated by Vitug as “guest-ready” had not been cleaned in compliance with the
housekeeping policies and procedures, and that afterwards, she again reviewed the
policies and procedures with Vitug. Vitug again disputed the truth of McClintock’s
declaration.
       According to McClintock, on January 16, 2009 she found that four more rooms
designated by Vitug as “guest-ready” had not been cleaned in compliance with the
housekeeping policies and procedures. In her declaration, Vitug disputed that three of the
rooms were not cleaned properly, and she disputed that the fourth room had been
assigned to her that day.



                                              3
       McClintock asserted that on January 19, 2009, she found that two more rooms
designated by Vitug as “guest-ready” had not been cleaned in compliance with the
housekeeping policies and procedures. Vitug again disputed that the rooms were not
cleaned properly.
       On January 19, 2009, Vitug received a written warning. The warning stated that
she needed to improve her job performance by inspecting rooms carefully prior to
designating them as “guest-ready.” The warning also stated that any other infraction
could result in further disciplinary actions.
       On January 21, 2009, McClintock found an ozone air purifying machine in a room
that Vitug had designated as “guest-ready.”
       On January 22, 2009, a hotel guest complained that a room was dirty. The room
had not been occupied since January 14, 2009. McClintock believed, but Vitug disputed,
that Vitug was the only housekeeping supervisor at the hotel on January 14, 2009 and
thus had been responsible for ensuring that the room was cleaned. Vitug received
another written warning following the January 22, 2009 incident. The warning stated that
another infraction would result in Vitug’s termination.
       According to McClintock, on January 26, 2009, she found that two more rooms
designated by Vitug as “guest-ready” had not been cleaned in compliance with the
housekeeping policies and procedures. In her declaration, Vitug disputed that the rooms
were not cleaned properly.
       Vitug was terminated on January 26, 2009.
       B.     Padayao’s Termination
       In her declaration, McClintock stated that she reviewed the housekeeping policies
and procedures with Padayao on December 24 and 26, 2008, and on January 14, 15, and
16, 2009. In her own declaration, Padayo disputed that any such reviews occurred.
       McClintock also claimed that on January 16, 2009, she found that two rooms
designated by Padayao as “guest-ready” had not been cleaned in compliance with the

                                                4
housekeeping policies and procedures, and that she then reviewed the policies and
procedures with Padayao. Padayao disputed these claim in her declaration.
       On January 21, 2009, Padayao received a written warning. The warning stated
that she needed to improve her job performance by inspecting rooms carefully prior to
designating them as “guest-ready.” The warning also stated that any other infraction
could result in further disciplinary actions.
       On May 4, 2009, Padayao received a second written warning. The warning
concerned her failure to comply with the pet log procedures, and it stated that any other
infraction could result in further disciplinary actions. The hotel’s pet log policy requires
the housekeepers to inform the housekeeping supervisors or the executive housekeeper
that there is a pet in the room. The housekeeping supervisors or the executive
housekeeper must then make a notation in the pet log. According to McClintock’s
declaration, the pet log notation must be made as soon as possible, but Padayao believed
that the pet log notation only needed to be made some time before the guest checked out
of the hotel. The written warning noted that no pet log notations had been made between
December 2008 and May 2009.
       On September 17, 2009, McClintock determined that Padayao had not made an
entry in the pet log for room 1623. Padayao admitted she knew a pet had been in that
room for two days, but claimed she had been too busy to make an entry in the pet log.
Also, she believed she did not need to log the pet until the guest checked out.
       Padayao was terminated on September 17, 2009.
       C.     Padayao’s Complaint
       A few days prior to her termination, on or about September 14, 2009, Padayao
prepared a letter in which she complained that McClintock was discriminating against
Filipino employees. The letter noted that McClintock had terminated four or five Filipino
employees; that McClintock had hired 15 Mexicans but no Filipinos; and that



                                                5
McClintock was giving more hours to Hispanic employees, particularly “her favorites,”
than to Filipino employees.
        Nine employees, including Padayao, signed a blank piece of paper, which Padayao
attached to the complaint letter. The letter was addressed to Philip Cohen, Island
Hospitality’s vice president of human resources, in Florida. The letter was postmarked
on September 15, 2009 and received by Cohen on September 22, 2009.
        McClintock and the hotel’s general manager, Kurt Gursu, both denied they had
any knowledge of Padayao’s complaint at the time of her termination on September 17,
2009.
        Island Hospitality investigated Padayao’s complaint between September 22, 2009
and October 2, 2009. Cohen instructed Gursu and Gregg Forde, Island Hospitality’s
regional general manager for Northern California, to investigate the complaint. Forde
confirmed that McClintock had not hired any Filipinos in the housekeeping department,
but that she had hired 15 new Hispanic employees. Forde determined that many of
Padayao’s accusations about discriminatory treatment were false. For instance, Padayao
had claimed that a particular Hispanic employee had been promoted, but Forde
determined that this was untrue. Likewise, Forde determined it was untrue that
McClintock told some employees not to come in so that she could give the hours to her
“ ‘favorites.’ ” Based on the investigation by Forde and Guru, Island Hospitality
concluded there was no evidence that Filipinos had been discriminated against.
        D.    Other Employees
        During McClintock’s tenure as executive housekeeper, which lasted from
December of 2008 through April 8, 2010, thirty-four housekeeping employees separated
from the hotel. Twenty-six employees had separated voluntarily by resigning or
abandoning their jobs, and eight employees had been involuntarily terminated. Six of the




                                            6
involuntarily terminated employees were Filipino. The other two involuntarily
terminated employees were Hispanic.1
       During the same time period, the hotel hired 30 new employees to work in the
housekeeping department. Twenty-five of the new employees were Hispanic, three were
Filipino, one was African-American, and one was Caucasian. McClintock knew some of
the new Hispanic employees from working with them at a different hotel. The three new
Filipino employees were hired after the investigation of Padayao’s complaint.
       The hotel advertised for new employees primarily by posting job openings on
websites. The hotel also prepared flyers regarding housekeeping jobs. Following the
investigation of Padayao’s complaint, the flyers were translated into Spanish, Tagalog,
and Vietnamese.

                         III. PROCEDURAL BACKGROUND
       A.     The Complaint
       The record reflects that the operative complaint is the first amended complaint
(hereafter, the complaint) filed on April 2, 2010.2
       In their first cause of action, plaintiffs alleged that Island Hospitality violated the
California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12940) by
discriminating against them on the basis of their race and/or national origin.




       1
         Plaintiffs asserted, as an undisputed fact, that there were a total of 10 Filipino
employees in the housekeeping department at the time of McClintock’s hiring. The trial
court sustained Island Hospitality’s objection to the evidence plaintiffs produced in
support of that fact.
       2
         A third plaintiff, Estefania Poquiz, participated in the lawsuit from the time the
original complaint was filed until shortly before Island Hospitality filed its motion for
summary judgment. In its motion for summary judgment, Island Hospitality noted that it
had recently settled with Poquiz.

                                               7
       In their second cause of action, plaintiffs alleged that Island Hospitality
wrongfully terminated them because of their race and/or national origin, in violation of
public policy as set forth in article I, section 8 of the California Constitution.
       In their third cause of action, plaintiffs alleged that Island Hospitality wrongfully
terminated them because of their race and/or national origin, in violation of public policy
as set forth in the FEHA.
       The fourth and fifth causes of action were brought by Padayao alone. Padayao
alleged that Island Hospitality retaliated against her when she complained about its
discrimination and that Island Hospitality failed to properly investigate her complaint.3
       B.     The Motion for Summary Judgment
       Island Hospitality filed a motion for summary judgment, or, in the alternative,
summary adjudication, arguing that plaintiffs failed to state a prima facie case of
discrimination, that plaintiffs were terminated for legitimate, non-discriminatory reasons,
and that plaintiffs could not establish that Island Hospitality’s actions were a pretext for
discrimination.
       In opposition to the motion for summary judgment, plaintiffs argued that there
were triable issues of fact. They argued that they had established a prima facie case of
discrimination and that Island Hospitality’s proffered reasons for the terminations were
pretextual.
       On October 25, 2011, the trial court granted Island Hospitality’s motion for
summary judgment. The court found that Island Hospitality had “provided legitimate,
non-discriminatory reasons for Plaintiffs’ terminations.” The court noted plaintiffs’
disagreement about whether certain rooms were dirty and whether they had properly
followed policies and procedures, but found those disagreements “insufficient to show


       3
        On appeal, Padayao has not raised any issues with respect to either of these
causes of action.

                                               8
the terminations were motivated by discrimination.” The court further found that
plaintiffs had not provided any direct evidence of discriminatory intent, and that the
statistical evidence about terminations and hiring was insufficient to show pretext.
Finally, the court found “no evidence of individual instances of discriminatory
treatment.”
       Judgment was entered in favor of Island Hospitality on December 22, 2011.

                                    IV. DISCUSSION
       On appeal, plaintiffs contend that triable issues of fact exist as to whether Island
Hospitality terminated their employment because they were Filipino. Before addressing
plaintiffs’ contention, we will outline the applicable standard of review.
       A.     Standard of Review
       The standard of review for an order granting a motion for summary judgment is de
novo. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860 (Aguilar).)
       In performing our independent review, we apply the same three-step process as the
trial court. “Because summary judgment is defined by the material allegations in the
pleadings, we first look to the pleadings to identify the elements of the causes of action
for which relief is sought.” (Baptist v. Robinson (2006) 143 Cal.App.4th 151, 159
(Baptist).)
       “We then examine the moving party’s motion, including the evidence offered in
support of the motion.” (Baptist, supra, 143 Cal.App.4th at p. 159.) A defendant moving
for summary judgment has the initial burden of showing that a cause of action lacks merit
because one or more elements of the cause of action cannot be established or there is a
complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (o)4; Aguilar,
supra, 25 Cal.4th at p. 850.)


       4
        All further statutory references are to the Code of Civil Procedure unless
otherwise indicated.

                                              9
       If the defendant fails to make this initial showing, it is unnecessary to examine the
plaintiff’s opposing evidence and the motion must be denied. However, if the moving
papers make a prima facie showing that justifies a judgment in the defendant’s favor, the
burden shifts to the plaintiff to make a prima facie showing of the existence of a triable
issue of material fact. (§ 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at p. 849; Kahn v.
East Side Union High School Dist. (2003) 31 Cal.4th 990, 1002-1003.)
       In determining whether the parties have met their respective burdens, “the court
must ‘consider all of the evidence’ and ‘all’ of the ‘inferences’ reasonably drawn
therefrom [citations], and must view such evidence [citations] and such inferences
[citations], in the light most favorable to the opposing party.” (Aguilar, supra, 25 Cal.4th
at p. 843.) “There is a triable 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.” (Id. at p. 850,
fn. omitted.) Thus, a party “cannot avoid summary judgment by asserting facts based on
mere speculation and conjecture, but instead must produce admissible evidence raising a
triable issue of fact. [Citation.]” (LaChapelle v. Toyota Motor Credit Corp. (2002)
102 Cal.App.4th 977, 981.)
       We will begin our evaluation of the order granting Island Hospitality’s motion for
summary judgment with a brief overview of the legal framework governing summary
adjudication of an employee’s claim for discrimination.
       B.     Summary Adjudication of a Discrimination Claim
       California has adopted the three-stage, burden-shifting test known as the
McDonnell Douglas test (McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792) for
determining the merits of a discrimination claim, including discrimination on the basis of
race, ethnicity, or national origin. (Guz, supra, 24 Cal.4th at p. 354; Reid v. Google, Inc.
(2010) 50 Cal.4th 512, 520, fn. 2 (Reid).)



                                             10
       “At trial, the McDonnell Douglas test places on the plaintiff the initial burden to
establish a prima facie case of discrimination.” (Guz, supra, 24 Cal.4th at p. 354.) In
general, the elements of a prima facie case of discrimination are (1) the plaintiff was a
member of a protected class; (2) the plaintiff was qualified for the position sought or
performed competently; (3) the plaintiff suffered an adverse employment action, such as
termination; and (4) “some other circumstance suggests discriminatory motive.
[Citations.]” (Id. at p. 355.) “If, at trial, the plaintiff establishes a prima facie case, a
presumption of discrimination arises. [Citations.]” (Ibid.)
       If the plaintiff makes the required prima facie showing at trial, the burden shifts to
the employer to produce admissible evidence sufficient to show a legitimate,
nondiscriminatory reason for the adverse employment action. (Guz, supra, 24 Cal.4th at
pp. 355-356.) “If the employer meets this burden, the employee then must show that the
employer’s reasons are pretexts for discrimination, or produce other evidence of
intentional discrimination. [Citation.]” (Reid, supra, 50 Cal.4th at p. 520, fn.2.)
       With regard to summary judgment, as this court has noted, an employer seeking
summary judgment in a discrimination case may meet its burden by showing that one or
more of the elements of a prima facie case are lacking or that the adverse employment
action was based on a legitimate, nondiscriminatory reason. (Cucuzza v. City of Santa
Clara (2002) 104 Cal.App.4th 1031, 1038 (Cucuzza).)
       If the employer meets its initial burden in moving for summary judgment, the
burden then shifts to the employee to “demonstrate a triable issue by producing
substantial evidence that the employer’s stated reasons were untrue or pretextual, or that
the employer acted with a discriminatory animus, such that a reasonable trier of fact
could conclude that the employer engaged in intentional discrimination or other unlawful
action. [Citations.]” (Cucuzza, supra, 104 Cal.App.4th at p. 1038.)
       In Guz, the California Supreme Court emphasized that “the great weight of federal
and California authority holds that an employer is entitled to summary judgment if,

                                               11
considering the employer’s innocent explanation for its actions, the evidence as a whole
is insufficient to permit a rational inference that the employer’s actual motive was
discriminatory.” (Guz, supra, 24 Cal.4th at p. 361, fn. omitted.) “[A]n inference is
reasonable if, and only if, it implies the unlawful motive is more likely than defendant’s
proffered explanation. [Citation.]” (Cucuzza, supra, 104 Cal.App.4th at p. 1038.)
Speculation regarding the employer’s unlawful motive in terminating the employee is
insufficient to raise a triable question of fact regarding whether the employer’s
explanation was pretextual or false. (Martin v. Lockheed Missiles & Space Co. (1994)
29 Cal.App.4th 1718, 1735.)
       Having reviewed the legal framework for summary adjudication of an employee’s
claim of discrimination and the applicable standard of review, we turn to our analysis of
Island Hospitality’s motion for summary judgment.
              C.     Analysis
       Plaintiffs implicitly concede that Island Hospitality met its burden of showing that
that the adverse employment action was based on a legitimate, nondiscriminatory reason,
such that the burden shifted back to plaintiffs. (See Cucuzza, supra, 104 Cal.App.4th at
p. 1038.) Thus, the issue here is whether plaintiffs met their burden of “demonstrat[ing] a
triable issue by producing substantial evidence that the employer’s stated reasons were
untrue or pretextual, or that the employer acted with a discriminatory animus, such that a
reasonable trier of fact could conclude that the employer engaged in intentional
discrimination or other unlawful action.” (Ibid.)
              1.     Falsity of Reasons for Termination
       Plaintiffs contend that Island Hospitality’s proffered reasons for terminating them
were false, and therefore pretextual. Plaintiffs assert that they provided evidence
showing that they had performed their jobs satisfactorily. Plaintiffs refer to their
declarations, in which each stated she had in fact checked the rooms at issue and found
them clean. Plaintiffs claim their declarations are corroborated by the fact that

                                             12
McClintock did not document the specific issues with the rooms nor review the rooms
with either plaintiff. Plaintiffs also note that according to Vitug, some of the rooms were
not Vitug’s responsibility or had not actually been marked by Vitug as clean. As to
Padayao’s purported failure to comply with the pet log policy, plaintiffs assert that there
was no written pet log policy, no mutually understood pet policy, and no consistent
enforcement of any pet log policy.
       “[E]vidence that the employer’s claimed reason [for the employee’s termination]
is false—such as that it conflicts with other evidence, or appears to have been contrived
after the fact—will tend to suggest that the employer seeks to conceal the real reason for
its actions, and this in turn may support an inference that the real reason was unlawful.”
(Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 715.) However, “an
inference of intentional discrimination cannot be drawn solely from evidence, if any, that
the company lied about its reasons. The pertinent statutes do not prohibit lying, they
prohibit discrimination. [Citation.]” (Guz, supra, 24 Cal.4th at pp. 360-361.)
“Logically, disbelief of an Employer’s stated reason for a termination gives rise to a
compelling inference that the Employer had a different, unstated motivation, but it does
not, without more, reasonably give rise to an inference that the motivation was a
prohibited one.” (McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th
1510, 1531-1532 (McGrory).)
       The above principles were applied in Hersant v. Department of Social Services
(1997) 57 Cal.App.4th 997, 1000 (Hersant), where the plaintiff alleged he was demoted
on the basis of his age in violation of the FEHA. Hersant had presented a prima facie
case of age discrimination, but the employer had made a showing that the demotion was
for nondiscriminatory reasons. Specifically, the employer produced evidence showing
Hersant had instituted policies that corrupted a computer database, failed to notify his
superiors of those policies, and refused to follow instructions from his superiors. (Ibid.)
Thus, the burden shifted back to Hersant, who presented evidence contradicting the

                                             13
employer’s explanation for the demotion. Nevertheless, the appellate court found that
summary judgment was properly granted. Although “Hersant raised triable issues
concerning whether the actions of [his employer] were reasonable and well considered,”
a trier of fact could not reasonably conclude that the employer’s “stated reasons were
implausible, or inconsistent or baseless.” (Id. at p. 1009.) Therefore, “it would not be
reasonable to conclude they were pretextual and used merely to veil an act of age
discrimination.” (Ibid.)
       Here, although plaintiffs denied that they had failed to perform their jobs properly,
the evidence they submitted was insufficient to support an inference that the job
performance issues were a pretext for discrimination. Notably, plaintiffs admitted some
of the job performance criticisms – for instance, Vitug acknowledged she had left an
ozone machine in a room but marked the room as “guest-ready,” and Padayao admitted
she failed to make any notations in the pet log for several months. Further, plaintiffs do
not dispute that they were each given two written warnings prior to the terminations, and
Padayao’s employment continued for nearly eight months after her first written warning.
Thus, the facts do not give rise to an inference that Island Hospitality’s motivation for
terminating plaintiffs was something other than their job performance, much less “to an
inference that the motivation was a prohibited one.” (McGrory, supra, 212 Cal.App.4th
at p. 1532.) While plaintiffs have presented some evidence contradicting Island
Hospitality’s stated reasons for plaintiffs’ terminations, the stated reasons are not so
“implausible, or inconsistent or baseless” as to give rise to an inference that Island
Hospitality’s true motivation was unlawful. (Hersant, supra, 57 Cal.App.4th at p. 1009.)
              2.     Adequacy of Investigation
       Plaintiffs next assert that pretext is shown because Island Hospitality only
perfunctorily investigated Padayao’s complaint. They note that the investigation was
conducted primarily by Forde, who had no formal training in conducting investigations,



                                             14
that he did not interview either Padayao or McClintock, and that he did not examine the
hiring and firing statistics.
       An inference of pretext may arise where an investigation is “not truly
independent” (Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 119 (Reeves))
or is insufficiently “ ‘thorough.’ ” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th
243, 277 (Nazir).)
       Here, Forde was employed by Island Hospitality as the regional general manager
for Northern California, and no evidence indicates he had any personal connection to
McClintock or plaintiffs. (Compare Nazir, supra, 178 Cal.App.4th at p. 277 [investigator
had “an axe to grind” against plaintiff].) Although Forde lacked formal training in
investigation of employee complaints, he had performed prior investigations “numerous
times.” He interviewed seven of the people who had signed Padayao’s complaint as well
as two other housekeepers. He examined work schedules in response to the complaint
about McClintock’s unequal work hours assignments. Further investigation was
conducted by Gursu; he interviewed McClintock as well as the hotel’s assistant general
manager and the hotel’s chief maintenance engineer. Although Padayao was not
interviewed, it appears this was due to the fact she had recently been terminated. Based
on this record, we find no evidence suggesting that Island Hospitality failed to conduct a
“truly independent” (Reeves, supra, 121 Cal.App.4th at p. 119) or “ ‘thorough’ ”
investigation (Nazir, supra, at p. 277), so as to raise an inference of pretext.
               3.     Statistics
       Plaintiffs point to the statistics regarding the ethnicity of the employees fired and
hired after McClintock became executive housekeeper, claiming the statistics create an
inference that the non-discriminatory reasons for their termination were pretextual.
       Plaintiffs’ opening brief asserts that “within ten months of McClintock’s hiring,
eight of ten Filipino employees had been terminated or quit, and that McClintock hired
15 Hispanic employees to replace them.” As noted above, the trial court sustained an

                                              15
objection to the evidence plaintiffs provided in support of their claim that there were
10 Filipino employees at the time of McClintock’s hiring. (See fn. 1, ante.) Thus, the
trial court could not consider that evidence (see § 437c, subd. (c)), nor can we. (See Guz,
supra, 24 Cal.4th at p. 334 [after a summary judgment motion has been granted, appellate
court must consider “all the evidence set forth in the moving and opposition papers
except that to which objections have been made and sustained”].)5
       The undisputed evidence established that eight employees in the housekeeping
department were involuntarily terminated during McClintock’s tenure as executive
housekeeper. Six of those employees were Filipino; the other two were Hispanic.
During the same time period, the hotel hired 30 new employees to work in the
housekeeping department. Twenty-five of the new employees were Hispanic, three were
Filipino, one was African-American, and one was Caucasian.
       “A disparate treatment plaintiff may rely on statistical evidence to establish a
prima facie case . . . , or ‘to show that a defendant’s articulated nondiscriminatory reason
for the employment decision in question is pretextual,’ . . . . Statistical data is relevant
because it can be used to establish a general discriminatory pattern in an employer’s
hiring or promotion practices. Such a discriminatory pattern is probative of motive and
can therefore create an inference of discriminatory intent with respect to the individual
employment decision at issue. [Citation.]” (Lowe v. City of Monrovia (9th Cir. 1985)
775 F.2d 998, 1008.)6 “On the other hand, ‘[s]tatistics taken in isolation are generally not
probative of . . . discrimination,’ [citation], and statistical evidence on its own ‘will rarely
suffice’ to show pretext, [citation]. At the very least, in order to create an inference of

       5
         Plaintiffs do not challenge the trial court’s evidentiary ruling on appeal.
       6
         “ ‘ “Because the antidiscrimination objectives and relevant wording of title VII
of the Civil Rights Act of 1964 (Title VII) [(42 U.S.C. § 2000e et seq.)] [and other
federal antidiscrimination statutes] are similar to those of the FEHA, California courts
often look to federal decisions interpreting these statutes for assistance in interpreting the
FEHA.” ’ [Citation.]” (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 812.)

                                              16
pretext, ‘a plaintiff’s statistical evidence must focus on eliminating nondiscriminatory
explanations for the disparate treatment by showing disparate treatment between
comparable individuals.’ [Citation.]” (Timmerman v. U.S. Bank, N.A. (10th Cir. 2007)
483 F.3d 1106, 1114-1115 (Timmerman).)
       Statistical evidence and evidence of disparate treatment created an inference of
pretext in Damon v. Fleming Supermarkets of Florida, Inc. (11th Cir. 1999) 196 F.3d
1354 (Damon), which is cited by plaintiffs in this case. In Damon, the plaintiffs had been
employed as managers of supermarkets; both were over age 40. After the defendant
acquired a supermarket chain, it hired a new district manager to oversee seven of the
supermarkets. The new district manager soon terminated the two plaintiffs: one for job
performance issues; the other for yelling at another employee on the sales floor. The new
district manager also terminated or demoted three other older, more experienced
managers, and he replaced all of the older managers with men who were younger and less
experienced. He did not terminate any younger managers during the same time period.
(Id. at p. 1358.) The new district manager had actually advertised for new managers
before there were any vacancies, and he had made a remark about wanting “ ‘aggressive,
young men’ like himself to be promoted.” (Id. at p. 1362.) Moreover, one of the younger
replacement managers had serious performance problems, “and yet, was not fired.” (Id.
at p. 1364.) Likewise, there was evidence that the new district manager himself had
yelled at employees in front of customers. The court found that this circumstantial
evidence, “taken as a whole, is sufficient to make a prima facie showing of age
discrimination, and to rebut the nondiscriminatory reasons” for the plaintiffs’
terminations that the defendant had proffered. (Id. at p. 1366.)
       In this case, the statistics presented by plaintiffs do not create a similar inference
of discrimination, particularly since there is no evidence of “ ‘disparate treatment
between comparable individuals.’ [Citation.]” (Timmerman, supra, 483 F.3d at
p. 1115.) Plaintiffs presented evidence that during McClintock’s tenure, six Filipino

                                              17
employees were involuntarily terminated. However, two Hispanic employees were also
involuntarily terminated during the same time period. (Cf. Damon, supra, 196 F.3d at
p. 1358.) Plaintiffs presented no evidence that other employees had similar performance
issues but were not terminated. Although McClintock herself had not made any pet log
entries and was not disciplined, it was undisputed that McClintock – a newer employee –
had not previously known about the pet log policy, whereas Padayao had been aware of
the policy as a longer-tenured employee. Moreover, McClintock was hired specifically to
improve the performance of the housekeeping department, not simply because of a
corporate take-over as in Damon, where the timing of the terminations helped create an
inference that the stated reasons were a pretext for discrimination.
                4.     Recruitment Practices
       Finally, plaintiffs assert that Island Hospitality specifically recruited Hispanics,
and that this demonstrated that Island Hospitality’s reasons for terminating plaintiffs were
pretextual.
       Plaintiffs claim to have “produced evidence that McClintock confined her
recruiting efforts to the posting of open positions in Spanish-language posters which were
distributed in local Hispanic markets” until after Padayao sent in her complaint. That
evidence was Padayao’s declaration, which asserted that “Fliers were the primary way
the Hotel advertised for new employees” and that McClintock “had a flier made in
English and Spanish and asked the housekeepers to hand them in Mexican markets.”
       Significantly, the trial court sustained Island Hospitality’s objections to the
evidence cited by plaintiffs. Thus, that evidence may not be considered. (See § 437c,
subd. (c); Guz, supra, 24 Cal.4th at p. 334.)7
       Even more significantly, Island Hospitality produced evidence that the hotel’s
primary means of advertising for new employees was posting job openings on websites


       7
           Again, plaintiffs do not challenge the trial court’s evidentiary ruling on appeal.

                                               18
that do not target people of any particular race or national origin. As plaintiffs have not
cited any admitted evidence to support their claim of targeted recruiting, the allegedly
discriminatory recruiting practices did not create an inference that plaintiffs’ performance
issues were a pretext for discrimination.
              5.       Cumulative Showing
       We acknowledge that “[i]n discrimination cases, proof of the employer’s reasons
for an adverse action often depends on inferences rather than on direct evidence.”
(Cucuzza, supra, 104 Cal.App.4th at p. 1038.) However, “even though we may expect a
plaintiff to rely on inferences rather than direct evidence to create a factual dispute on the
question of [the employer’s] motive, a material triable controversy is not established
unless the inference is reasonable. And an inference is reasonable if, and only if, it
implies the unlawful motive is more likely than defendant’s proffered explanation.
[Citation.]” (Ibid.)
       Here, considered cumulatively, the evidence presented by plaintiffs does not
permit a rational inference that a discriminatory reason for their termination is more
likely than the job performance reasons proffered by Island Hospitality. As discussed
above, plaintiffs did not produce substantial evidence that the stated reasons for their
terminations were so implausible, inconsistent or baseless as to give rise to an inference
that Island Hospitality’s true motivation was unlawful. (Hersant, supra, 57 Cal.App.4th
at p. 1009.) Plaintiffs also presented no substantial evidence suggesting that Island
Hospitality’s investigation was significantly inadequate. Likewise, the termination and
hiring statistics did not constitute substantial evidence that comparable employees were
disparately treated. (Timmerman, supra, 483 F.3d at p. 1115.) Finally, no substantial
evidence shows that Island Hospitality’s recruitment was discriminatory.
       We therefore determine that plaintiffs did not satisfy their burden in opposing
Island Hospitality’s motion for summary judgment to rebut Island Hospitality’s “facially
dispositive showing by pointing to evidence which nonetheless raises a rational inference

                                              19
that intentional discrimination occurred. [Citation.]” (Guz, supra, 24 Cal.4th at p. 357.)
The trial court did not err in granting Island Hospitality’s motion for summary judgment.
                                   V. DISPOSITION
       The judgment is affirmed.


                                   ___________________________________________
                                   BAMATTRE-MANOUKIAN, J.




WE CONCUR:




__________________________
ELIA, ACTING P.J.




__________________________
MÁRQUEZ, J.




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