Filed 12/31/15 Kirkwood v. Saks Fifth Avenue CA2/8
                 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

                                    SECOND APPELLATE DISTRICT

                                                DIVISION EIGHT


BYRON KIRKWOOD,                                                        B257433

         Plaintiff and Appellant,                                      (Los Angeles County
                                                                       Super. Ct. No. BC500558)
         v.

SAKS FIFTH AVENUE, INC.,

         Defendant and Respondent.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Mary H. Strobel, Judge. Affirmed.


         Law Offices of Gene Ramos and Gene M. Ramos for Plaintiff and Appellant.


         Ballard Rosenberg Golper & Savitt, Linda Miller Savitt, Christine T. Hoeffner
and Stephanie Kantor for Defendant and Respondent.




                                                      ******
       Plaintiff Byron Kirkwood appeals the trial court’s grant of summary judgment
on his California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.;
FEHA) and related claims following the termination of his employment with
defendant Saks Fifth Avenue, Inc. (Saks). We affirm.
                FACTUAL AND PROCEDURAL BACKGROUND
       The general facts are undisputed. From March 20, 2006, until his termination
on January 24, 2011, Kirkwood, an African-American man, worked in the high-priced
fine jewelry department at the Saks store in Beverly Hills. As he acknowledges,
during his tenure he incurred a long list of disciplinary write-ups and policy violations,
as well as six performance memoranda. His discipline involved tardiness, customer
complaints, and merchandise handling procedures meant to protect against theft.
       The most recent violations that preceded his termination involved a new sales
tax policy announced by Saks on January 21, 2010, in a memorandum distributed to all
employees, including Kirkwood. Effective January 31, 2010, the new policy required
sales tax to be charged on all sales of merchandise to be sent out-of-state based on the
tax laws of those states, so long as Saks had a presence there. The memorandum
informed associates, “You may not override that sales tax as it is being assessed in
compliance with appropriate tax laws,” and, “Implementation of this procedure
requires your good judgment, attentiveness, discretion and, when appropriate,
partnership with management. [¶] Failure to comply with either the letter or the spirit
of this policy may result in disciplinary actions, up to and including termination.”
(Italics omitted.) The “FAQs” section further stated: “Q. My customer has asked that
I make an exception and waive the sales tax charged on this send. Can I accommodate
her request? [¶] A. No. Sales tax is being assessed based on the change in our
corporate structure and/or the change in state tax laws that require Saks Fifth Avenue
to collect the tax. Tax evasion is a serious crime, and we can not take any action that
permits tax evasion.” An October 23, 2010 e-mail to all employees in the Beverly
Hills store, including Kirkwood, reiterated the policy regarding gift purchases, noting,
“In regards to gifts, there is no sales tax charged but all ‘sends’ must be sent to a


                                             2
different name and address from the purchaser. Purchases being sent to second homes
or to anyone at any of the client’s addresses or place of business cannot be sent as a
‘gift’.”
           Kirkwood handled three purchases for the same client on February 13, March 6,
and November 10, 2010. It is undisputed the client was not charged sales tax for the
first two purchases. For those transactions (involving jewelry costing approximately
$100,000 and $4,000 respectively), the receipts contained the phrase “Tax Exempt ID
G,” reflecting a “tax exempt” register key was used, thereby circumventing the
charging of sales tax. Kirkwood believed the purchases were tax-free, out-of-state
gifts.
           For the third purchase, Kirkwood sent an e-mail to the client on November 10,
2010, calculating the cost of the merchandise (again approximately $100,000). He did
not include sales tax in those calculations. Upon reviewing this e-mail, Kirkwood’s
manager Chandler Rashley e-mailed Kirkwood: “I want to be very clear with you on
this: the client must pay tax on this sale.” Rashley e-mailed him a second time two
days later congratulating him after the client had put down a deposit. She repeated, “I
wanted to make sure you had a discussion with her regarding the tax.” Kirkwood did
not respond to the e-mails, but Rashley spoke to him directly about charging sales tax,
and he said the client “knows she’s paying sales tax.” When the merchandise arrived
at the store, Rashley processed the order, charging the client the balance of the price
plus sales tax. On January 12, 2011, the client told Rashley she did not think she
would be charged sales tax and she had not paid sales tax on her previous two
purchases. The client ultimately canceled the order.
           Saks commenced an investigation and determined that Kirkwood had in fact
failed to charge sales tax for the client’s prior purchases, even though the transactions
occurred after the new tax policy was announced and put into effect. The first
purchase was a gift to the client from her husband, which did not qualify as a bona fide
gift under the new policy. The second purchase was a bona fide gift not subject to



                                              3
sales tax. But both purchases were improperly rung up as “tax exempt” because the
client did not have tax exempt status.
       Saks terminated Kirkwood’s employment on January 24, 2011. In his
termination letter, Saks cited his disregard of Rashley’s two e-mails and
misrepresentations to the client she would not have to pay sales tax for the November
2010 purchase; his improper use of the tax exempt key to circumvent charging sales
tax for the two prior purchases; and his six documented policy violations between
April 6, 2007, and January 4, 2010.
       The incident that generated this lawsuit occurred in December 2010, a month
before Kirkwood was terminated. Around December 16, 2010, an employee
complained that Kirkwood had made an inappropriate comment about her to a male
client. Saks talent development director Philip Giovanelli interviewed both Kirkwood
and the employee. There were no other employee witnesses. The investigation was
inconclusive, so Giovanelli did not discipline Kirkwood in any way.
       On December 22, 2010, Kirkwood delivered a written memorandum to Saks
about this incident and the investigation. Among other points, he complained he was
“disturbed by how this has been handled and felt discriminated against.” He felt the
other employee was “prejudiced” against him and the company had not conducted
“any objective, unbiased investigation into this accusation.” He stated, “My feeling is
that if my position is in jeopardy over a remark I did not make—and have repeatedly
said I did not make—and there is no unbiased attempt whatsoever to investigate the
allegations, it can only be the result of racial discrimination based on some biased
perceptions that have nothing to do with me, but everything to do with assumptions
that others have made.” Giovanelli and Rashley met with Kirkwood after reviewing




                                            4
the memorandum, but Kirkwood did not provide any further information. No further
action was taken.1
       Kirkwood filed a complaint on February 5, 2013, against Saks, Giovanelli, and
Rashley, alleging five claims stemming from his termination: (1) wrongful
termination in violation of public policy; (2) retaliation (Gov. Code, § 12940, subd.
(h)); (3) race discrimination (Gov. Code, § 12940, subd. (a)); (4) harassment (Gov.
Code, § 12940, subd. (j)); and (5) failure to prevent harassment (Gov. Code, § 12940,
subd. (k)). Saks moved for summary judgment or summary adjudication on all claims,
which the court granted.2 The court concluded the wrongful termination in violation
of public policy claim was time-barred (which Kirkwood did not dispute); Kirkwood
had put forward a prima facie case of retaliation and discrimination, but Saks
submitted evidence of legitimate, nonretaliatory reasons for his termination, and
Kirkwood failed to raise a triable issue that those reasons were pretextual; Kirkwood
was not subjected to actionable harassment; and Kirkwood’s claims for failure to
prevent discrimination and harassment and punitive damages failed because his other
claims failed. The court entered judgment and Kirkwood appealed.
                                    DISCUSSION
1. Legal Standards
       We review the grant of summary judgment de novo, considering all the
evidence set forth in the moving and opposition papers except evidence for which
objections were made and sustained. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th
317, 334 (Guz).) Under Code of Civil Procedure section 437c, subdivision (c), a
motion for summary judgment must be granted if “all the papers submitted show that


1      About a year earlier on November 27, 2009, Kirkwood submitted a rebuttal to a
disciplinary write-up, claiming he felt “singled out,” but he did not mention race or
any other protected characteristic.
2      The trial court noted that Kirkwood had filed his opposition papers late, and
Kirkwood’s counsel “reflected a pattern in this case of filing and serving untimely
papers.” Nonetheless, the court accepted the late filing and addressed the merits.


                                           5
there is no triable issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Thus, we must decide whether the defendant has
conclusively negated a necessary element of the plaintiff’s claim or has established an
affirmative defense and has demonstrated no material issue of fact requires a
determination at trial. (Code Civ. Proc., § 437c, subd. (o); Guz, supra, at p. 334.) We
review the trial court’s evidentiary rulings for abuse of discretion. (Serri v. Santa
Clara University (2014) 226 Cal.App.4th 830, 852 (Serri).) On appeal, Kirkwood
challenges only the grant of summary adjudication of his retaliation claim, so we treat
the rest of his claims as abandoned. (Wall Street Network, Ltd. v. New York Times Co.
(2008) 164 Cal.App.4th 1171, 1177 [“[F]ailure to address summary adjudication of a
claim on appeal constitutes abandonment of that claim.”].)
       Government Code section 12940, subdivision (h) of FEHA “makes it an
unlawful employment practice ‘[f]or any employer . . . to discharge, expel, or
otherwise discriminate against any person because the person has opposed any
practices forbidden under this part or because the person has filed a complaint,
testified, or assisted in any proceeding under this part.’” (Yanowitz v. L’Oreal USA,
Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz), italics omitted.) At trial, the plaintiff
bears the burden to demonstrate a prima facie claim of retaliation, that is, proof that
“(1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the
employee to an adverse employment action, and (3) a causal link existed between the
protected activity and the employer’s action. [Citations.] Once an employee
establishes a prima facie case, the employer is required to offer a legitimate,
nonretaliatory reason for the adverse employment action. [Citation.] If the employer
produces a legitimate reason for the adverse employment action, the presumption of
retaliation ‘“‘drops out of the picture,’”’ and the burden shifts back to the employee to
prove intentional retaliation.” (Ibid.) To do so, the plaintiff may demonstrate the
reasons proffered by the employer are “‘untrue or pretextual, or that the employer
acted with a discriminatory animus, such that a reasonable trier of fact could conclude



                                             6
that the employer engaged in intentional discrimination or other unlawful action.’”
(Serri, supra, 226 Cal.App.4th at p. 861.)
       We will assume for the sake of our decision here that Kirkwood offered
sufficient evidence of a prima facie case of retaliation based on his December 22,
2010, memorandum complaining about race discrimination, and his termination, which
occurred one month later. (See, e.g., Fisher v. San Pedro Peninsula Hospital (1989)
214 Cal.App.3d 590, 615 [“The retaliatory motive is ‘proved by showing that plaintiff
engaged in protected activities, that his employer was aware of the protected activities,
and that the adverse action followed within a relatively short time thereafter.’”].)
Further, there is little question—and Kirkwood concedes on appeal—that Saks offered
facially legitimate reasons for his termination unrelated to his December 2010
discrimination complaint, namely, his disregard of Rashley’s two e-mails and
misrepresenting to the client she would not have to pay sales tax for the November
2010 purchase, improperly assigning tax exempt status to the client for her two prior
purchases, and his long history of policy violations and discipline.
       Thus, the crux of this case is whether Kirkwood has raised a triable issue of
material fact that Saks’s reasons were pretext for intentional retaliation. In showing
pretext, “[i]t 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 discriminatory animus on the part of the employer.”
(Serri, supra, 226 Cal.App.4th at p. 862.) Nor is it enough for the employee “simply
to raise triable issues of fact concerning whether the employer’s reasons for taking the
adverse action were sound. . . . [¶] . . . ‘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 [the [sic] asserted] non-discriminatory reasons.”’”


                                             7
(Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1005
(Hersant).) Further, although “[p]roof that the employer’s proffered reasons are
unworthy of credence may ‘considerably assist’ a circumstantial case of discrimination
[or retaliation],” “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.” (Guz, supra, 24 Cal.4th at p. 361; see McGrory v. Applied
Signal Technology, Inc. (2013) 212 Cal.App.4th 1510, 1531-1532 [“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.”].)
2. Evidence of Pretext
       On appeal, Kirkwood claims he established pretext by undermining the veracity
of Saks’s reasons for his termination and by citing evidence he asserts establishes
retaliatory animus. As we will explain, he has failed to substantiate these contentions
and therefore failed to raise a triable issue that Saks terminated him in retaliation for
his discrimination complaint.
       Kirkwood first attacks his alleged improper use of the tax exempt key for the
February and March 2010 sales. The undisputed evidence shows (1) no sales tax was
charged for either of those transactions, (2) the tax exempt key was used to circumvent
the charging of sales tax, (3) the use of the tax exempt key was improper because the
client lacked tax exempt status, and (4) Kirkwood was the one who used the tax
exempt key for the transactions to avoid charging sales tax.3 Kirkwood raises various


3      The court overruled Kirkwood’s foundation, personal knowledge, and
conclusory objections to Giovanelli’s statements in his declaration that his
“investigation uncovered two purchases (on February 13, 2010 and March 6, 2010)
processed and completed by Kirkwood where he did not charge the client sales tax”
and “[t]o circumvent Saks’ register from automatically charging sales tax to these
purchases, Kirkwood utilized the ‘tax exempt’ register key.” Kirkwood purports to
challenge those rulings on appeal, but he has given no reason why the court abused its

                                             8
contentions in an attempt to undermine Saks’s showing, but none of his arguments
rebuts the basic undisputed fact that he improperly used the tax exempt key for these
sales.
         First, he suggests he could not have evaded charging sales tax because the
policy announcement explained sales tax would be “automatically applied” to all out-
of-state “sends” and sales associates “may not override that sales tax as it is being
assessed in compliance with appropriate tax laws.” But simply because employees
may not override the sales tax does not mean they could not override it, and, as the
uncontroverted receipts for those transactions demonstrate, it was in fact overridden
for the February and March 2010 transactions. Kirkwood himself admits no tax was
charged on those transactions (albeit because he believed they were tax-free gifts), so
his interpretation of the tax policy is unsupported by the record.
         Kirkwood also implies he was not responsible for improperly using the tax
exempt key because the tax policy was subject to employee “leeway” and he partnered
with a coworker and spoke with a store manager about the February 2010 transaction.
Similarly, in his reply brief he suggests he got instructions from “Camille” in Saks’s
customer service department in order to ring up the February 2010 purchase as a gift.
Although his briefs are not entirely clear, he seems to suggest this evidence shows he
was only acting on instructions to ring the sale up using the tax exempt key. Yet, he
has offered no evidence—including in his own declaration in opposition to summary
judgment—that “Camille” or anyone else directly instructed him to use the tax exempt
key to circumvent sales tax for an out-of-state gift purchase. Nor is there any support
for his claim that employees had “leeway” to use the tax exempt key when a client is
not properly tax exempt.




discretion. We therefore reject his contentions. (See Serri, supra, 226 Cal.App.4th at
p. 852 [challenger bears burden to show trial court’s adverse evidentiary rulings were
abuse of discretion].)


                                             9
       In the termination letter, Saks also cited Kirkwood’s failure to obey Rashley’s
directives to charge sales tax on the November 2010 sale and to inform the client she
would have to pay sales tax.4 To raise a dispute of fact on this point, Kirkwood raises
a conflict between Rashley’s testimony and a declaration from the client over the
content of their conversation about the sales tax issue for the November 2010
purchase. According to Rashley, when she contacted the client, the client told her
Kirkwood represented that she would not have to pay sales tax. In her declaration, the
client claimed she told Rashley that Kirkwood “never misrepresented to [her] that
[she] would not be paying sales tax on the watch purchase nor did he ever say to [her]
that the sales tax would not be charged on the watch order.” Kirkwood suggests
Rashley was lying in order to cover up her true retaliatory motive, which created a
dispute of fact requiring trial.
       While we agree this is a dispute of fact, it is not material, so it cannot preclude
summary judgment. Crediting the client’s testimony as we must, it still does not show
Kirkwood complied with Rashley’s directive to affirmatively inform the client she
would have to pay sales tax. If he had done so, the client could have easily said as
much in her declaration, instead of asserting the double negative that he did not tell her
she would not have to pay sales tax. Kirkwood’s testimony is similar: In his
supplemental declaration, he stated only that he “never told Chandler Rashley that I
informed [the client] that they did not have to worry about not paying the sales tax on
any merchandise that was purchased during the year 2010 or 2011”; and at his
deposition, he testified that he “discussed all the possibilities of this transaction with
the client, tax, sales tax, and it being a gift,” but he did not testify he told her she


4       Kirkwood views this reason as “insubordination,” and he argues Saks waited
until summary judgment to claim he was terminated for insubordination, suggesting it
was a post hoc reason demonstrating pretext. While his termination letter did not use
the word “insubordination,” it cited his failure to follow Rashley’s directives on the
sales tax policy. Under any rational interpretation, Kirkwood’s alleged conduct
qualified as insubordination, so the fact that Saks did not use that word until later in
litigation cannot defeat summary judgment.


                                              10
would have to pay sales tax, as Rashley directed. In fact, it is clear Kirkwood did not
comply with Rashley’s directives, given the client admitted she thought her purchase
was a gift “so [she] did not think that tax would be charged on the purchase.” On this
record, the only rational inference is that he disobeyed Rashley’s directive, which
cannot support a claim of pretext.5
       Next, Kirkwood claims he performed his job satisfactorily in his last year of
employment, which undermines the justification for his termination in January 2011.
While the termination letter identified his last documented discipline as occurring a
year earlier on January 4, 2010, the letter describes his improper use of the tax exempt
key for the February and March 2010 sales and his disregard for Rashley’s instructions
to charge sales tax for the November 2010 sale and to ensure the client understood she
had to pay sales tax. Thus, although Saks did not discover his sales tax policy
violations until January 2011, the evidence demonstrates he did not perform
satisfactorily in his last year of employment.
       In direct tension with this argument, Kirkwood also attempts to undercut the
veracity of the termination letter by pointing out that he did receive a documented
“first warning” on August 11, 2010, for falsifying documents, which was not listed in
his termination letter. Likewise, he received a “first warning” four days earlier for
excessive tardiness, which also was not cited in the letter. No reasonable factfinder
could infer a retaliatory motive based on Saks’s failure to include additional discipline
in his termination letter. Giovanelli himself testified that if this discipline had been
“significant enough,” he would have asked that it be included in the letter. Given the
serious matters outlined in the letter more than justified Kirkwood’s termination,
Saks’s failure to list less serious discipline does not demonstrate pretext for retaliation.


5       The only evidence Kirkwood cites to suggest he told the client she would have
to pay sales tax is Rashley’s deposition testimony that Kirkwood told her the client
“knows she’s paying sales tax.” But this statement was demonstrably false, given the
client herself stated she did not think she had to pay sales tax. Thus, this testimony
only strengthens Saks’s case for Kirkwood’s termination.


                                            11
       Kirkwood further points out he was not issued a first (or any) warning for the
sales tax violations before he was terminated, whereas he was issued a first warning on
August 11, 2010, for falsifying documents, and in prior discipline he had been given
an opportunity to improve, suggesting Saks skipped any progressive discipline in order
to retaliate for his discrimination complaint one month prior. But Saks warned
employees that violations of the tax policy “may result in disciplinary actions, up to
and including termination.” Had Saks discovered his first policy violation more
contemporaneously with the February 2010 sale, it might have decided a more
progressive course of discipline was appropriate. But by the time Kirkwood’s
violations were discovered in January 2011, his actions reflected a pattern of serious
misconduct coupled with his long history of policy violations and discipline. The
mere fact that Saks did not progressively discipline him before terminating his
employment does not give rise to a rational inference of pretext.
       Kirkwood identifies several additional facts he claims give rise to an inference
of retaliatory animus. He points out Giovanelli admitted he found it “hard to believe”
Kirkwood’s version of events of the December 2010 complaint against him. But
Giovanelli said this before Kirkwood presented his memorandum raising the issue of
race discrimination, so Giovanelli’s comment could not have been the product of
retaliatory animus based on Kirkwood’s later complaint. Nor does Kirkwood dispute
he was never disciplined for this incident.
       Next, Kirkwood claims Rashley accused him of lying regarding the sales tax
issue with the client and falsifying documents related to his August 11, 2010
discipline. Yet, his discipline for falsifying of documents occurred months before his
December 2010 complaint, so it could not demonstrate retaliation for his later
complaint, regardless of how Rashley treated him during the situation. Similarly, as
we have explained, although Rashley and the client gave conflicting accounts of what
Kirkwood told the client about the sale tax for the November 2010 sale, there is no
dispute he failed to tell the client she had to pay sales tax. That Rashley accused
Kirkwood of lying does not show retaliatory animus.


                                              12
       Kirkwood further points out that Rashley once told him about how her personal
life was impacted by having an African-American stepfather, which he implies is
direct evidence of retaliatory animus. We fail to see how this discussion could have
any bearing on whether Rashley intended to retaliate against him for lodging a
complaint about race discrimination.
       Kirkwood next contends Saks made the “sudden decision” to strictly enforce
the sales tax policy only after he lodged his discrimination complaint, demonstrating
retaliatory animus. This contention is flawed in at least two respects. First, he offered
no evidence that other employees violated this policy but were not disciplined.
Second, there is no evidence Saks’s enforcement of the policy was in any way
“sudden”: Kirkwood was disciplined a year after the policy went into effect, during
which time Saks not only reminded employees—including Kirkwood—of the policy
via e-mail in October 2010, but Rashley also personally directed Kirkwood twice to be
sure the client knew she had to pay sales tax on the November 2010 purchase, which
he failed to do. Rashley also testified she talked about it at least five times at staff
meetings in 2010.
       Kirkwood also claims Rashley and Giovanelli began a “campaign of
disciplining” him following a November 27, 2009 written memorandum he submitted
in response to discipline, in which he stated he felt “singled out.” (Capitalization and
boldface omitted.) He contends Rashley and Giovanelli thereafter “la[id] down a
paper trail leading up to [his] termination,” which is evidence of retaliatory animus.
This contention is meritless. Nothing in his November 27, 2009 memorandum
mentions race or discrimination, and Rashley and Giovanelli could not have begun
laying down a “paper trail” to cover up their retaliatory motives when Kirkwood did
not even complain about discrimination until over a year later. In any case, Kirkwood
incurred discipline both before and after his November 27, 2009 memorandum,
undercutting any inference that Rashley and Giovanelli embarked on a campaign to
discipline him more severely in retaliation for his November 27, 2009 memorandum.



                                             13
       Finally, Kirkwood identifies several additional alleged flaws in Saks’s
investigation of the sales tax issue and the incident with his coworker as proof of
retaliatory animus. He claims Giovanelli failed to investigate why the tax exempt key
was used for the February and March 2010 purchases. In his deposition, Giovanelli
conceded he did not know specifically what the phrase “Tax Exempt ID G” meant on
the receipts for the February and March 2010 purchases, nor did he personally look
into the issue or ask Kirkwood about it. But Rashley investigated the use of the tax
exempt key and asked the client if she had a tax exempt identification number. The
client did not.6 Rashley informed Giovanelli, and Giovanelli found no reason to ask
Kirkwood why he improperly used the tax exempt key. Given Kirkwood’s clear
violation of policy, Giovanelli reasonably concluded Kirkwood’s reasons for using the
tax exempt key were irrelevant.
       Kirkwood also claims Rashley reached a “quick” conclusion about his sales tax
policy violations because she investigated the issue only 12 days before he was
terminated. Even if his characterization were accurate, he points to no favorable facts
Rashley would have uncovered if she had conducted a longer investigation.
       Kirkwood also believed he was ignored and treated unfairly with regard to the
complaint by his coworker because Rashley immediately assumed he provoked the
incident and asked if he had apologized, and Giovanelli did not believe his version of
events. But as we noted above, the incident was investigated and the results were
inconclusive, so Kirkwood was not disciplined. His speculation about Rashley’s and



6       Kirkwood attacks Rashley’s veracity on this point by citing a memorandum
Rashley drafted following her discussion with the client. In it, Rashley noted she
explained the client’s past purchases had a “tax exempt key” applied without a tax
identification number, and she “paused . . . to wait for her to offer a tax id # which she
did not.” The trial court sustained Kirkwood’s objection to this memorandum, so we
cannot consider it. Even if we could, this discrepancy between Rashley’s
memorandum and her deposition testimony does not change the undisputed fact that
the client did not have a tax identification number and the use of the tax exempt key
was improper.


                                            14
Giovanelli’s personal feelings toward him based on this incident cannot defeat
summary judgment.
       In sum, Saks presented significant evidence that Kirkwood had a long and
continuing history of discipline, culminating in improperly using the tax exempt key
for the February and March 2010 sales and disobeying Rashley’s directives to inform
the client she had to pay sales tax on the November 2010 sale. Kirkwood has not put
forward evidence enabling a reasonable factfinder to find these reasons for his
termination consisted of such “‘weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions’” that they were unworthy of credence. (Hersant,
supra, 57 Cal.App.4th at p. 1005.) Nor has he offered any evidence that would allow
the trier of fact to infer Saks’s true motivation was retaliation for his discrimination
complaint. (Guz, supra, 24 Cal.4th at p. 361.)
                                     DISPOSITION
       The judgment is affirmed. Respondent shall recover costs on appeal.




                                                   FLIER, J.
WE CONCUR:




       BIGELOW, P. J.




       RUBIN, J.




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