Filed 11/30/15 Rosales v. Moneytree, Inc. CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


SARA ROSALES,

     Plaintiff and Appellant,                                          G052224

         v.                                                            (Super. Ct. No. RIC1213948)

MONEYTREE, INC.,                                                       OPINION

     Defendant and Respondent.



                   Appeal from a judgment of the Superior Court of Riverside County, David
E. Gregory, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
                   Mancini & Associates, Marcus A. Mancini, Timothy J. Gonzales; Benedon
& Serlin, Gerald Serlin and Kelly R. Horwitz for Plaintiff and Appellant.
                   Curiale Wilson, Richard J. Curiale, Michelle T. Duval and Joseph C.
Wilson for Defendant and Respondent.
                                          *                  *                  *
              Plaintiff and appellant Sara Rosales appeals from the summary judgment
entered in favor of her former employer, defendant and respondent Moneytree, Inc.
(Moneytree). Rosales sued Moneytree, alleging it unlawfully discriminated against her
based on her repeated need for domestic violence leave. Moneytree moved for summary
judgment on the ground it granted every leave request Rosales made, and terminated her
employment for the nondiscriminatory reason that its investigation into stolen bus passes
from the branch where Rosales worked led it to conclude Rosales was untruthful with the
investigator and was the likely culprit. The trial court granted the motion, finding
Moneytree presented evidence showing it terminated Rosales based on the missing bus
passes and the evidence Rosales presented failed to create a triable issue on whether
Moneytree acted with discriminatory animus or whether Moneytree’s stated reason for
terminating Rosales was a pretext for unlawful discrimination. We agree and affirm the
judgment.

                                             I

                            FACTS AND PROCEDURAL HISTORY

              Moneytree is a national, retail financial services company that offers short-
term loans, check cashing, and wire transfers. It also sells stamps and public transit
system passes. Moneytree is headquartered in Seattle, Washington, and has stores in five
states.
              In 2007, Moneytree hired Rosales as a vault teller to work in its Riverside
branch, which was a small store staffed by four to five employees located inside a
supermarket. As a vault teller, Rosales had access to the vault and would provide cash
and inventory to the regular tellers who interacted with the customers. Usually, two vault
tellers worked each shift, but one was designated as the on-duty vault teller and only that
teller had the vault key during the shift. The other vault teller would work with the
regular tellers and the public. There were two shifts each day. At the start of each shift,


                                             2
the on-duty vault teller was responsible for verifying and balancing the vault’s contents
by “fine counting” each bundle of cash, bus passes, stamps, and other inventory to verify
they were complete.
              From 2008 to March 2011, Brenda Avila was Rosales’s branch manager.
When Avila transferred to another branch, Jose Hernandez became Rosales’s branch
manager. Moneytree’s branch managers lacked authority to either hire or fire employees.
They reported to a district manager, who hired the employees, and oversaw employee
performance issues and scheduling. The Seattle office was responsible for terminating
employees based on input from the local branch and district managers. Ruby Candido
was the manager for the district that included the Riverside branch.
              When Rosales worked for Avila, her performance reviews reflected that she
generally met expectations. Rosales received regular raises, but Avila also counseled her
on more than 25 occasions for tardiness or failing to show up, exhibiting a bad attitude,
and having an unprofessional appearance. Rosales also was the subject of customer
service complaints, and Avila noted Rosales had refused to train a coworker, and that
Rosales sometimes failed to balance either her drawer or the vault following her shift.
              In 2009, Rosales first became a domestic violence victim when her
boyfriend threw an object at her. Additional incidents followed and Rosales often
appeared at work with scratches or bruises. Avila, aware of these incidents, provided
Rosales with makeup to hide her bruises, and asked her to wear blazers or otherwise
cover up any scratches or bruises so customers would not see them. Rosales’s boyfriend
would call or come to the branch and engage in heated arguments with her. These
arguments made other employees uncomfortable prompting Avila to ask Rosales to tell
her boyfriend not to come in or call unless it was an emergency.
              In April 2010, Rosales called Avila and said she could not come to work
because she had a black eye and swollen nose after her boyfriend assaulted her. After
speaking with Candido, Avila told Rosales she could skip work and wished her a speedy

                                             3
recovery. Moneytree excused Rosales’s absence as domestic violence leave and she
suffered no negative employment actions as a result. Rosales recovered and worked her
next regularly scheduled shift. When Rosales returned to work Avila advised her about
Moneytree’s employee assistance program and explained it provided confidential
counseling and other resources for domestic violence victims. Avila also gave Rosales a
brochure describing the program.
              In October 2010, Moneytree placed a verbal warning in Rosales’s
personnel filed for “Attendance,” “Punctuality,” and “Balancing.” Rosales was late for
work, and on a few occasions did not show up at all. Moneytree’s warning also was
triggered by a series of shortages in Rosales’s drawer or the vault at the end of her shift,
the most recent incident resulting in an unexplained shortage that exceeded $400.
              In June 2011, Rosales asked for domestic violence leave, informing
Candido she could not report to work because she had to attend a court hearing
concerning to her boyfriend’s physical abuse. When Rosales returned to work for her
next scheduled shift, Candido questioned her about the nature of the court hearing and the
situation with her boyfriend so he could excuse her absence as domestic violence leave.
Based on Rosales’s response, Candido classified her absence as domestic violence leave
and she suffered no negative employment action. When she was later deposed in the
action, Candido testified this conversation left her feeling “very strongly [Rosales] was
trying to get [her boyfriend] out of jail and not really trying to separate herself from the
domestic violence at that time.”
              In July 2011, Moneytree hired an independent firm to send customers into
its branches and evaluate its employees. Rosales helped one of these customers and
received the lowest customer service score possible, one on a scale of one to five. Under
Moneytree’s policies, the evaluation provided grounds to immediately terminate Rosales,
but Hernandez and Candido convinced their superiors that she was capable of good
customer service and should be given another opportunity. Instead of being terminated,

                                              4
Rosales received a written warning that any failure to improve could result in immediate
termination.
               In August 2011, Rosales sought her third domestic violence leave,
informing Hernandez she was not physically presentable because her boyfriend assulated
her with a phone and injured her face. Rosales’s doctor wrote a note excusing her from
work because she needed five days to recover from her injuries. Moneytree again
classified Rosales’s absences as excused based on domestic violence leave and she
suffered no negative employment action. When Rosales returned to work Hernandez
discussed the situation with her, explaining, “Sara[], you can’t be doing this. You need to
move on with your life [¶] . . . [¶] [You] can do better. [You’re] too good for that.”
Rosales acknowledged Hernandez was trying to be supportive, but his comments
nonetheless hurt her feelings because he did not understand her situation.
               In documenting this incident, Candido noted Rosales continued to live with
her boyfriend, did not report the incident to the police, and was not completely truthful in
discussing the matter with her doctor. Candido also reminded Rosales about Moneytree’s
confidential employee assistance program and advised her that future missed time could
affect her attendance record.
               Two weeks later, another vault teller reported several bus passes were
missing when he performed the fine count at the start of his afternoon shift. He explained
the vault had the correct number of bundles of bus passes, but several of the bundles were
missing one pass. He reported the missing passes to Hernandez, who confirmed the
number of missing passes before notifying Candido. Candido reviewed the records and
other documentation to see if there was an innocent explanation for the missing passes,
but concluded they had been stolen because there was no other explanation. Candido
reported the stolen passes to Moneytree’s Vice President of Operations Lora Riemann
and Chief Operating Office Christine Kiely.



                                              5
              With help from assistant district manager Alba Myers, Candido conducted
an investigation into who stole the bus passes. They interviewed every employee who
had access to the vault at the Riverside branch, including the vault tellers and Hernandez.
They also interviewed Milissa Garcia, a regular teller who received one of the short
bundles of bus passes on the same day the missing passes were discovered. Candido and
Myers assessed each employee’s responses to their questions and also their reactions to
the investigation.
              Rosales’s interview stood out to both Candido and Myers because she
reacted differently than when she was questioned about other shortages or problems in
the past. Rosales would not maintain eye contact with Candido, and she repeatedly
denied taking the passes and kept talking for several minutes, insisting she would never
jeopardize her job. As part of the investigation, Candido also reviewed the vault teller
schedule and the sequencing of their shifts to determine the optimal time to take the
passes and who had the best opportunity to do it while escaping suspicion.
              Throughout the four-day investigation, Candido repeatedly discussed each
interview with Riemann. Candido wanted to make sure she collected all the information
Riemann and Kiely would need to determine how to proceed. When she completed her
investigation, Candido submitted an investigative report summarizing her findings and
conclusions. After reviewing all the information Candido provided, discussing the matter
with Candido, and debating among themselves, Riemann and Kiely concluded Rosales
likely was the person who took the passes. Based on Moneytree’s zero tolerance policy
for theft, Riemann and Kiely decided to terminate Rosales’s employment.
              Moneytree terminated Rosales’s employment in late September 2011. In
the termination notice she sent Rosales, Candido explained, “Regrettably, throughout our
conversation [during the investigation], I do not believe you gave complete and truthful
answers to the questions asked and found the testimony of other witnesses to be more
forthright and believable. And, while you repeatedly denied benefitting from the missing

                                             6
passes or any wrongdoing, you were unable to provide me with any satisfactory answers
as to what happened to the passes. [¶] Sarah, the conclusion I reached, after completing
my investigation, was that you misappropriated the 7 bus passes totaling $242 from
Moneytree. Based upon this, I determined that the best course of action was to terminate
your employment with Moneytree.”
              Rosales sued Moneytree approximately a year later, alleging claims for
violation of Labor Code section 230.1 and wrongful termination in violation of public
policy. She alleged Moneytree unlawfully discriminated against and terminated her for
taking domestic violence leaves. Moneytree moved for summary judgment on Rosales’s
claims, arguing it fired her for the legitimate nondiscriminatory reason that she was
untruthful during the investigation and stole the bus passes. The trial court granted the
motion, finding Moneytree met its initial burden and Rosales failed to present sufficient
evidence to create a triable issue of fact on whether Moneytree’s stated reason for firing
her was a pretext for discrimination or whether Moneytree otherwise acted with a
discriminatory motive. This appeal followed.

                                             II

                                       DISCUSSION

A.     California’s Prohibition Against Employment Discrimination for Victims of
       Domestic Violence
              Victims of domestic violence are not a protected class under the California
Fair Employment and Housing Act (Gov. Code, § 12940 et seq.). (See Gov. Code,
§ 12940, subd. (a) [identifying protected classes].) Nonetheless, the California Labor
Code provides employees certain protections when they need time off from work to
address issues arising from domestic violence. (See Lab. Code, §§ 230, 230.1.)
              Labor Code section 230.1 prohibits an employer of 25 or more employees
from “discharg[ing] or in any manner discriminat[ing] or retaliat[ing] against an


                                             7
employee who is a victim of domestic violence, sexual assault, or stalking for taking time
off from work to attend to any of the following: [¶] (1) To seek medical attention for
injuries caused by domestic violence, sexual assault, or stalking. [¶] (2) To obtain
services from a domestic violence shelter, program, or rape crisis center as a result of
domestic violence, sexual assault, or stalking. [¶] (3) To obtain psychological
counseling related to an experience of domestic violence, sexual assault, or stalking. [¶]
(4) To participate in safety planning and take other actions to increase safety from future
domestic violence, sexual assault, or stalking, including temporary or permanent
relocation.” (Lab. Code, § 230.1, subd. (a).)
              Labor Code section 230, subdivision (c), prohibits any employer from
“discharg[ing] or in any manner discriminat[ing] or retaliat[ing] against an employee who
is a victim of domestic violence, sexual assault, or stalking for taking time off from work
to obtain or attempt to obtain any relief, including, but not limited to, a temporary
restraining order, restraining order, or other injunctive relief, to help ensure the health,
safety, or welfare of the victim or his or her child.” (Lab. Code, § 230, subd. (c).)
              Both of these sections further provide that any employee who is
“discharged, threatened with discharge, demoted, suspended, or in any other manner
discriminated or retaliated against in the terms and conditions of employment” for
exercising the employee’s rights under these sections is entitled to “reinstatement and
reimbursement for lost wages and work benefits caused by the acts of the employer, as
well as appropriate equitable relief.” (Lab. Code, §§ 230, subd. (g)(2), 230.1, subd. (c).)
              The elements of a discrimination or wrongful termination claim under
either of these statutes are the following: (1) the employer terminated the employee or
otherwise discriminated or retaliated against the employee in the terms and conditions of
employment; and (2) the employer’s conduct was motivated by the employee taking time




                                               8
off to invoke any of the remedial steps identified in the statutes.1 (Deschene v. Pinole
Points Steel Co. (1999) 76 Cal.App.4th 33, 41-42 (Deschene) [applying Labor Code
§ 230].) Here, Rosales alleges a claim under Labor Code section 230.1.

B.     Governing Legal Principles for Summary Judgment Motions on Employment
       Discrimination Claims
              Claims alleging unlawful employment discrimination or retaliation may be
established through either direct or circumstantial evidence. (Mokler v. County of
Orange (2007) 157 Cal.App.4th 121, 138 (Mokler); Morgan v. Regents of University of
California (2000) 88 Cal.App.4th 52, 67 (Morgan).) “‘“Direct evidence is evidence
which, if believed, proves the fact [of discriminatory animus] without inference or
presumption.”’ [Citation.] Where a plaintiff offers direct evidence of discrimination that
is believed by the trier of fact, the defendant can avoid liability only by proving the
plaintiff would have been subjected to the same employment decision without reference
to the unlawful factor.” (Morgan, at pp. 67-68.)



       1
               Neither the parties nor the trial court address whether Labor Code
sections 230 and 230.1 create a private right of action. Although the statutes state an
employee is entitled to reinstatement, reimbursement, and appropriate equitable relief,
they do not expressly authorize a civil action to obtain those remedies. Instead, both
statutes provided an employee “may file a complaint with the Division of Labor
Standards Enforcement of the Department of Industrial Relations pursuant to [Labor
Code] Section 98.7.” (Lab. Code, §§ 230, subd. (h)(1); 230.1, subd. (d)(1).) At least one
federal district court has recognized a private right of action under Labor Code
section 230. (Gutierrez v. RWD Technologies, Inc. (E.D. Cal. 2003) 279 F.Supp.2d 1223,
1226-1227.)

              We express no opinion on this issue because (1) Rosales also asserts a
claim for wrongful termination in violation of the public policy expressed in Labor Code
section 230.1 (see Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 176
[authorizing common law tort action for wrongful termination in violation of
fundamental public policy established by statute]); and (2) we conclude the trial court
properly granted Moneytree summary judgment on Rosales’s claims.


                                              9
              Because direct evidence of employment discrimination is rare, California
courts have adopted the three-stage burden-shifting test established by the United States
Supreme Court for evaluating circumstantial evidence in employment discrimination
cases. (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 860 (Serri);
Morgan, supra, 88 Cal.App.4th at p. 68.) “‘[Through] successive steps of increasingly
narrow focus, the [so-called McDonnell Douglas] test allows discrimination to be
inferred from facts that create a reasonable likelihood of bias and are not satisfactorily
explained.’” (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 159 (Wills).)
              “At trial, under the first step of the McDonnell Douglas framework, the
plaintiff may raise a presumption of discrimination by presenting a ‘prima facie case,’ the
components of which vary depending upon the nature of the claim . . . . ‘A satisfactory
showing to this effect gives rise to a presumption of discrimination which, if unanswered
by the employer, is mandatory—it requires judgment for the plaintiff.’” (Serri, supra,
226 Cal.App.4th at p. 860.) The burden then shifts to the employer defendant to
articulate a legitimate, nondiscriminatory reason for its employment decision. (Swanson
v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 965 (Swanson); Wills,
supra, 195 Cal.App.4th at p. 160.) If the employer does so, “the presumption of
discrimination created by the prima facie case ‘“simply drops out of the picture”’
[citations] and the burden shifts back to the employee to prove intentional
discrimination.” (Morgan, supra, 88 Cal.App.4th at p. 68.) In the final stage, the
plaintiff employee must prove discrimination by presenting evidence to show the
employer’s proffered reasons are a pretext for discrimination or the employer otherwise
acted with a discriminatory motive. (Serri, at p. 861; Swanson, at p. 965.)
              As explained above, the McDonnell Douglas framework was developed for
use in establishing intentional discrimination at trial. But we must alter the sequential
framework on a summary judgment motion because summary judgment law places the
initial burden on a moving party defendant to show the plaintiff’s claim lacks merit by

                                             10
either negating an essential element of the claim or establishing a complete defense to the
claim. (Serri, supra, 226 Cal.App.4th at p. 861; Swanson, supra, 232 Cal.App.4th at
pp. 965-966.) Thus, when an employer defendant seeks summary judgment on a
discrimination claim, the employer “‘has the initial burden to present admissible evidence
showing either that one or more elements of plaintiff’s prima facie case is lacking or that
the adverse employment action was based upon legitimate, nondiscriminatory factors.’”
(Serri, at p. 861; Swanson, at p. 966.)
              “If the employer meets its initial burden, the burden 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.’” (Serri, supra, 226 Cal.App.4th at
p. 861.) “‘An employee in this situation can not “simply show the employer’s decision
was wrong, mistaken, or unwise. Rather, the employee ‘“must demonstrate such
weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the
employer’s proffered legitimate reasons for its action that a reasonable factfinder could
rationally find them ‘unworthy of credence,’ [citation], and hence infer ‘that the employer
did not act for the [. . . asserted] non-discriminatory reasons.’”’”’” (Batarse v. Service
Employees Internat. Union, Local 1000 (2012) 209 Cal.App.4th 820, 834 (Batarse).)
              In this context, the Supreme Court has emphasized that “‘an employer is
entitled to summary judgment if, considering the employer’s innocent explanation for its
actions, the evidence as a whole is insufficient to permit a rational inference that the
employer’s actual motive was discriminatory.’ [Citation.] It is not sufficient for an
employee 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. [Citations.] Rather it
is incumbent upon the employee to produce ‘substantial responsive evidence’
demonstrating the existence of a material triable controversy as to pretext or

                                             11
discriminatory animus on the part of the employer.” (Serri, supra, 226 Cal.App.4th at
pp. 861-862.)
                “We review the trial court’s decision to grant summary judgment de novo.
We are not bound by the trial court’s stated rationale, but independently determine
whether the record supports the trial court’s conclusion that the plaintiff’s discrimination
claim failed as a matter of law.” (Wills, supra, 195 Cal.App.4th at p. 161.)

C.     Moneytree Met Its Initial Summary Judgment Burden by Establishing a Legitimate
       Nondiscriminatory Reason for Terminating Rosales
                Moneytree sought summary judgment on Rosales’s claims for wrongful
termination in violation of Labor Code section 230.1 and the fundamental public policy
expressed in that statute. According to Moneytree, it met its initial burden by presenting
evidence it had a legitimate nondiscriminatory reason for terminating Rosales’s
employment. We agree.
                “‘[I]f nondiscriminatory, [the employer’s] true reasons need not necessarily
have been wise or correct. [Citations.] While the objective soundness of an employer’s
proffered reasons supports their credibility . . . , the ultimate issue is simply whether the
employer acted with a motive to discriminate illegally. Thus, “legitimate” reasons
[citation] in this context are reasons that are facially unrelated to prohibited bias, and
which, if true, would thus preclude a finding of discrimination.’” (Serri, supra,
226 Cal.App.4th at p. 861, italics omitted.)
                Moneytree contends it terminated Rosales because its investigation into the
missing bus passes lead it to conclude an employee stole the passes, Rosales gave
untruthful and incomplete answers during her interview regarding the missing passes, and
she was the employee who most likely stole the passes. To support this contention
Moneytree presented deposition testimony from its district manager and others about
Rosales’s employment, the investigation, and the decision to terminate Rosales.
Moneytree also relied on the termination notice it gave Rosales, which explained

                                               12
Moneytree had concluded she gave untruthful and incomplete answers during the
investigative interview and she had stolen the passes.
              This evidence satisfied Moneytree’s initial summary judgment burden on
both of Rosales’s causes of action because it shows Moneytree terminated Rosales for a
reason unrelated to her domestic violence leaves. On the Labor Code section 230.1
claim, Moneytree’s stated reason negates the essential element that Moneytree fired
Rosales for taking time off to address domestic violence issues. (Lab. Code, § 230.1,
subd. (a); see Deschene, supra, 76 Cal.App.4th at pp. 41-42.) Similarly, this evidence
negates an essential element of Rosales’s claim for wrongful termination in violation of
public policy, a claim dependent upon Rosales establishing a violation of Labor Code
section 230.1. Rosales does not dispute that Moneytree satisfied its initial burden, and
therefore the burden shifted to her to establish a triable issue of material fact.

D.      Rosales Failed to Establish a Triable Issue of Material Fact
              Rosales contends she created a triable issue of fact in two ways. First, she
contends she presented direct evidence that her supervisors harbored discriminatory
animus toward her. Second, she contends she presented circumstantial evidence showing
Moneytree’s stated reason for terminating her was a pretext for discrimination. We
address each of these contentions separately.

        1.    Rosales Did Not Present Direct Evidence of Unlawful Discrimination
              Rosales contends a statement by Candido, her district manager, and two
statements by Hernandez, her branch manager, directly prove they harbored “animus
toward her based on her repeated need for domestic violence leave.” We disagree these
statements are direct evidence of discriminatory animus establishing a triable issue of
fact.
              As explained above, an employment discrimination claim may be
established through direct or circumstantial evidence, or both. (Mokler, supra,


                                              13
157 Cal.App.4th at p. 138; see DeJung v. Superior Court (2008) 169 Cal.App.4th 533,
549 (DeJung).) The McDonnell Douglas burden-shifting framework applies only to
claims based on circumstantial evidence. The courts developed that framework to allow
plaintiffs to prove unlawful discrimination through circumstantial evidence and inference
when direct evidence is unavailable. But that framework is unnecessary when the
plaintiff relies on direct evidence. (DeJung, at p. 550; Mokler, at p. 138; Trop v. Sony
Pictures Entertainment, Inc. (2005) 129 Cal.App.4th 1133, 1144-1145 (Trop).) Thus,
when an employee seeks to rely on direct evidence, the question is simply whether the
employee’s evidence is sufficient to create a triable issue on whether the employer acted
with discriminatory animus.
                “‘Direct evidence is evidence which proves a fact without inference or
presumption.” (Trop, supra, 129 Cal.App.4th at p. 1145; see DeJung, supra,
169 Cal.App.4th at p. 550.) “Direct evidence of retaliation [or discrimination] may
consist of remarks made by decisionmakers displaying a retaliatory [or discriminatory]
motive.’” (Colarossi v. Coty US, Inc. (2002) 97 Cal.App.4th 1142, 1153 (Colarossi).)
“Comments demonstrating discriminatory animus may be found to be direct evidence if
there is evidence of a causal relationship between the comments and the adverse job
action at issue.” (DeJung, at p. 550.) Similarly, “Direct evidence may take the form of
admissions by a decision maker that the adverse employment action was taken because of
the employee’s membership in the protected class.” (Batarse, supra, 209 Cal.App.4th at
pp. 834-835.)
                For example, in DeJung, numerous comments by the chair of a hiring
committee that “they want[ed] somebody younger, maybe in their 40’s’” constituted
direct evidence sufficient to defeat a summary judgment motion on an age discrimination
claim because the comments, made during the hiring process, showed discriminatory
animus against older applicants without the need for an inference or presumption.
(DeJung, supra, 169 Cal.App.4th at p. 550.)

                                             14
              In contrast, Trop involved a summary judgment motion on a pregnancy
discrimination claim where the plaintiff’s boss stated that plaintiff should not have any
children while she worked for the boss did not amount to direct evidence of
discriminatory animus because the isolated comment was not contemporaneous with the
discharge or causally related to the company’s decision to terminate plaintiff. (Trop,
supra, 129 Cal.App.4th at pp. 1147-1149.) At a company Christmas party, the plaintiff
was playing with another employee’s infant and said, “‘It looks like I get to have one of
my own,’” and the plaintiff’s boss responded, “‘Not while you are working for me.’” (Id.
at pp. 1140, 1148.) A little more than a month later, the boss terminated the plaintiff’s
employment based on her job performance, explaining the plaintiff had lost messages,
lacked interest in work, and put through a phone call at an inopportune time. When the
plaintiff sued for pregnancy discrimination, the employer produced evidence in its
summary judgment motion it terminated the plaintiff for the legitimate and
nondiscriminatory reason she performed her job poorly. (Id. at pp. 1142-1143.)
              In upholding the trial court’s decision granting the employer summary
judgment, the Trop court rejected the plaintiff’s contention that her boss’s comment at the
Christmas party was direct evidence of discriminatory animus. The court explained the
boss made her ambiguous statement more than a month before deciding to terminate the
plaintiff, and the plaintiff presented no evidence establishing a causal relationship
between the comment and her termination for poor job performance. (Trop, supra,
129 Cal.App.4th at pp. 1148-1149.)
              Here, Rosales first points to a discussion she had with Candido after she
took leave to attend a court hearing regarding her boyfriend in June 2011. During this
conversation, Candido asked Rosales a few questions about the court appearance and her
situation with her boyfriend to determine whether Candido could code the missed time as
domestic violence leave, which she did. Rosales does not identify any statement Candido
made during this conversation as direct evidence of discriminatory animus. Instead,

                                             15
Rosales points to a statement Candido made two years later when Rosales’s counsel
deposed her about the conversation. From that testimony, Rosales points to Candido’s
statement that she “felt very strongly [Rosales] was . . . not really trying to separate
herself from the domestic violence at that time” because she appeared at the court hearing
to testify her boyfriend needed anger management help, not jail time.
              Next, Rosales contends Hernandez’s response to a hypothetical question
Rosales’s counsel asked during Hernandez’s deposition directly proves his discriminatory
animus. In response to counsel’s question why he would not want employees showing up
at work with visible bruises, Hernandez simply responded, “It gives the wrong image.”
              Finally, Rosales contends comments Hernandez made to her after she
returned from her five-day leave directly prove his discriminatory animus. She points to
Hernandez’s statements that “you can’t be doing this. You need to move on with your
life.” And also comments that Rosales “can do better” and she’s “too good for that.” At
her deposition, Rosales conceded Hernandez was trying to be supportive when he made
these comments, but they nonetheless hurt her feelings because he did not understand the
situation.
              Each of these statements simply voices general observations or concerns for
Rosales’s well-being. None of them amount to direct evidence of discriminatory animus
because they do not reflect a desire or motive to take any adverse employment action
against Rosales without drawing significant inferences from the statements and
considering additional evidence. The statements alone do not display a retaliatory motive
(Colarossi, supra, 97 Cal.App.4th at p. 1153), they are not admissions (Batarse, supra,
209 Cal.App.4th at pp. 834-835), and they were not made contemporaneously with the
decision to terminate Rosales and are not causally related to that decision (DeJung,
supra, 169 Cal.App.4th at p. 550; Trop, supra, 129 Cal.App.4th at pp. 1148-1149).
              In short, nothing in the statements connects them to Moneytree’s decision
to terminate Rosales for being untruthful and stealing the bus passes. Giving Rosales

                                              16
every benefit of the doubt (see Kelly v. Stamps.com, Inc. (2005) 135 Cal.App.4th 1088,
1098 [opposing party’s evidence is liberally construed on summary judgment]), the
statements at most reflect a general concern or disapproval of her failure to remove
herself from an abusive relationship. They do not threaten termination or any other
adverse employment action for Rosales’s failure to terminate the relationship or for
taking domestic violence leave. In her reply, Rosales concedes these statements do not
directly establish a discriminatory animus, but rather require a fact finder to infer animus
from the statements and other evidence. As explained above, direct evidence is evidence
that proves a fact without inference or presumption. (Trop, supra, 129 Cal.App.4th at
p. 1145; see DeJung, supra, 169 Cal.App.4th at p. 550.) Accordingly, the statements are
not direct evidence of discriminatory animus sufficient to defeat Moneytree’s motion. 2
              Rosales contends Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297
(Sandell), supports her contention that Candido’s and Hernandez’s statements are direct
evidence of discriminatory intent. We disagree. In Sandell, the plaintiff took several
months off work to recover from a stroke. (Id. at p. 303.) When he returned to work, the
plaintiff used a cane and spoke much slower than he did before his stroke because he
experienced difficulties with his balance and speech. Shortly after his return, the
plaintiff’s boss told him, “if [he] didn’t make a full recovery, that the company had the
right to fire [him] or demote [him] and reduce [his] salary.” The boss also asked the
plaintiff “when [he] was going to get rid of the cane and when [he] was going to drop the
dramatization.” (Id., at p. 304.) When the boss later terminated the plaintiff, he sued for

       2
              In her reply, Rosales points to a second statement by Candido as direct
evidence of discriminatory animus. Specifically, she identifies an e-mail Candido sent to
her supervisor after Rosales returned from her five-day domestic violence leave in
August 2011. In the e-mail, Candido told her supervisor she explained to Rosales that
“future missed time could effect [sic] her attendance record.” Even this statement is not
direct evidence of discriminatory animus because there is no causal relationship between
the statement and Moneytree’s decision to terminate Rosales for dishonesty and theft.


                                             17
disability discrimination and pointed to these statements as direct evidence of the boss’s
discriminatory animus. The Sandell court accepted the first statement as direct evidence
because it showed the boss’s willingness to terminate the plaintiff because he had not
fully recovered from the stroke. The Sandell court also accepted the second, when
combined with the first, because it supported the inference the plaintiff was not
recovering fast enough for the boss’s liking. (Id. at pp. 319-320.)
              None of the statements Rosales points to in this case rise to the level of the
statements at issue in Sandell. Indeed, neither Candido nor Hernandez threatened to
terminate Rosales nor did they complain about her taking leave. Moreover, the Sandell
court did not conclude that the foregoing statements alone were sufficient to establish
discriminatory animus. Rather, the Sandell court simply explained they should be
considered “in the mix of evidence.” (Sandell, supra, 188 Cal.App.4th at p. 320.) Earlier
in the opinion, the Sandell court decided that other evidence the plaintiff presented
challenging the credibility of the employer’s purported legitimate, nondiscriminatory
reason established a triable issue sufficient to defeat summary judgment. (Id. at p. 319.)
              Because we conclude the statements Rosales identifies are not direct
evidence of discriminatory animus, we do not address her further contentions concerning
(1) whether Candido’s and Hernandez’s statements may establish Moneytree acted with
discriminatory animus even though they did not make the final decision to terminate
Rosales, and (2) the quantum of direct evidence necessary to defeat summary judgment.

       2.     Rosales’s Evidence Does Not Create a Triable Issue on Pretext
              Rosales also contends she established a triable issue under the McDonnell
Douglas framework by presenting circumstantial evidence showing Moneytree’s stated
reason for terminating her was a pretext for unlawful discrimination based on her
repeated domestic violence leaves. As evidence of pretext, Rosales points to (1) the
comments by Candido and Hernandez allegedly showing they harbored a discriminatory


                                             18
animus against her; (2) the temporal proximity between Rosales’s five-day domestic
violence leave and her termination; and (3) alleged inadequacies in the missing bus pass
investigation that lead to Rosales’s termination. We conclude Rosales’s evidence does
not constitute substantial evidence of pretext sufficient to defeat Moneytree’s motion.
              To create a triable issue Rosales must produce substantial evidence that
Moneytree’s stated reason for terminating her was untrue or pretextual, or that Moneytree
acted with a discriminatory animus, such that a reasonable trier of fact could conclude
Moneytree engaged in intentional discrimination. (Serri, supra, 226 Cal.App.4th at
p. 861.) “‘[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.’” (Id. at p. 863.)
              But, “there must be more than inconsistent justifications for an employee’s
termination to support an inference that the employer’s true motivation was
discriminatory. . . . ‘. . . Proof that the employer’s proffered reasons are unworthy of
credence may “considerably assist” a circumstantial case of discrimination, because it
suggests the employer had cause to hide its true reasons. [Citation.] Still, there must be
evidence supporting a rational inference that intentional discrimination, on grounds
prohibited by the statute, was the true cause of the employer’s actions.’” (McGrory v.
Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510, 1531 (McGrory).)
“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.” (Id. at pp. 1531-1532.) When evaluating an employee’s evidence of
pretext, the court must consider the totality of all the evidence, not each item in isolation.
(Reid v. Google, Inc. (2010) 50 Cal.4th 512, 541 (Reid).)

                                              19
              As explained above, we conclude the identified statements by Candido and
Hernandez are not direct evidence of discriminatory animus. That conclusion, however,
does not prevent those same statements from serving as circumstantial evidence to
support Rosales’s discrimination claim. (Reid, supra, 50 Cal.4th at pp. 541-542.)
Rosales contends these statements showed Candido and Hernandez harbored
discriminatory animus because they were responsible for collecting and presenting the
information on which Moneytree based that decision.
              Candido’s and Hernandez’s statements, however, are little more than vague
generalities and broad concerns for Rosales’s well-being. Nothing in the statements or
their timing hints at a desire to terminate Rosales based her domestic violence leaves or
otherwise suggests Moneytree’s stated reason for terminating Rosales was false. At best,
these statements suggest “only a weak suspicion that discrimination was a basis for
[Rosales’s] termination”; alone they do not establish Moneytree acted with
discriminatory animus or that its stated reason for terminating Rosales was a pretext for
discrimination. (See Serri, supra, 226 Cal.App.4th at pp. 867-868.) Simply put,
suspicion is not evidence.
              Similarly, the three-week temporal proximity between Rosales’s five-day
domestic violence leave and her termination fails to establish pretext. California courts
have repeatedly held that temporal proximity may be sufficient to establish a prima facie
case in the first stage of the McDonnell Douglas framework, “[b]ut temporal proximity
alone is not sufficient to raise a triable issue as to pretext once the employer has offered
evidence of a legitimate, nondiscriminatory reason for the termination.” (Arteaga v.
Brink’s, Inc. (2008) 163 Cal.App.4th 327, 353; see Loggins v. Kaiser Permanente Intern.
(2007) 151 Cal.App.4th 1102, 1112-1113 (Loggins).) Temporal proximity is one factor,
but additional substantial evidence is required to establish pretext. (Loggins, at p. 1113.)
              The evidence Rosales cites fails to establish deficiencies in Moneytree’s
bus pass investigation and therefore is not evidence of pretext or discriminatory animus.

                                             20
First, Rosales claims the investigation was inadequate because Candido lead the
investigation despite her discriminatory animus against Rosales, but, as explained above,
Candido’s isolated comments do not establish discriminatory animus against Rosales and
therefore do not undermine the integrity of the investigation.
              Next, Rosales challenges the adequacy of the investigation because
Candido had no training in conducting investigations into employee misconduct and
“waited a full year before papering the record with the results of her investigation.” The
testimony Rosales cites supports neither of these contentions. Candido testified she had
no “formal training” in conducting investigations, but she also testified (1) her job
provided “ongoing, as-you-go training” and this was not her first investigation; (2) she
constantly discussed ongoing investigations with her supervisor, who told her who to
interview, how to interview each person, and what to look for until the supervisor was
convinced all available information was obtained; and (3) she participated in bi-weekly
district manager conference calls that included discussions about investigations and
activities at other branches. Similarly, although Candido acknowledged the formal
written report on her investigation was prepared a year after Moneytree terminated
Rosales, she also testified she had prepared an investigation report at the time Rosales
was terminated and the final report was just a formalized version of the original report.
              Rosales also faults the investigation for failing to conclusively determine
who took the bus passes, but the law does not require Moneytree to have irrefutable proof
Rosales was untruthful and stole the passes. Rosales was an at-will employee “subject to
termination . . . for no reason or almost any reason [citation], except for a reason that
violates a fundamental public policy recognized in a constitutional or statutory
provision.” (McGrory, supra, 212 Cal.App.4th at p. 1514; see Trop, supra,
129 Cal.App.4th p. 1149.) In discrimination cases such as this, the issue is not the
objective truth or falsity of Moneytree’s stated reason for terminating Rosales, but
whether Moneytree honestly believed Rosales was untruthful and took the passes. (Wills,

                                             21
supra, 195 Cal.App.4th at p. 170.) Indeed, the factual dispute at issue is whether
discriminatory animus motivated Moneytree, not whether Moneytree was wise, shrewd,
prudent, or even competent in conducting its investigation and reaching its conclusions.
(Id. at p. 160.) Accordingly, the purported lack of a conclusive determination regarding
who took the bus passes does not undermine the investigation or establish pretext because
Rosales fails to cite any evidence showing Moneytree did not honestly believe Rosales
lied and stole the passes.
              Finally, Rosales argues the investigation was inadequate because
Moneytree failed to “closely scrutinize” another vault teller who Rosales contends
worked the shift immediately before the theft was discovered and had a stronger motive
to take the passes because her boyfriend allegedly rode the bus. The record, however,
reveals that Candido interviewed every vault teller and employee who had access to the
vault where the passes were kept. Based on each employee’s response while interviewed
and other information, including which shifts each vault teller worked in the days leading
up to the theft, the sequencing of those shifts, and when the theft occurred, Moneytree
concluded Rosales was untruthful and took the passes. The record therefore reveals
Moneytree gave all vault tellers equal consideration in its investigation and Rosales’s
contention Moneytree should have more closely scrutinized another teller is not evidence
of pretext.
              Accordingly, the evidence Rosales presented about Moneytree’s
investigation is not evidence of pretext and Rosales is left with only (1) the isolated
statements by Candido and Hernandez, which at most give rise to a weak suspicion of
discrimination (see Serri, supra, 226 Cal.App.4th at pp. 867-868), and (2) the temporal
proximity of Rosales’s final leave and her termination, which requires substantial
additional evidence to establish pretext (Loggins, supra, 151 Cal.App.4th at p. 1113).
When considered together, that evidence does not amount to the type of substantial
evidence required to create a triable issue on pretext or discriminatory animus. (See

                                             22
Serri, at p. 862.) Rosales simply fails to produce any substantial evidence showing
Moneytree did not terminate her for being untruthful and taking the bus passes.3

                                            III
                                       DISPOSITION

              The judgment is affirmed. Moneytree shall recover its costs on appeal.



                                                  ARONSON, J.

WE CONCUR:



MOORE, ACTING P. J.



THOMPSON, J.




       3
              Because we conclude Moneytree met is burden to establish it terminated
Rosales for a legitimate nondiscriminatory reason and Rosales failed to establish a triable
issue of material fact on pretext or discriminatory animus, we do not consider
Moneytree’s additional argument that the trial court ruling could be upheld based on the
after-acquired evidence that Rosales lied on her job application.


                                            23
