Filed 11/21/17 Walker v. Regents of the University of California CA3
NOT TO BE PUBLISHED



California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Yolo)
----



KRISTEN WALKER,

Plaintiff and Appellant,

v.

REGENTS OF THE UNIVERSITY OF CALIFORNIA,

Defendant and Respondent.
C076117

(Super. Ct. No.
CV CV 12-2264)







Plaintiff Kristen Walker contended defendant Regents of the University of California (University) discriminated against her based on pregnancy when a professor at the University of California, Davis, campus (UC Davis) decided not to hire her for a postdoctoral fellowship. The trial court granted summary judgment in favor of the University, and we affirm the judgment. Walker failed to introduce sufficient evidence from which we could infer the University’s reasons for not hiring her were pretextual.
UNDISPUTED FACTS AND PROCEDURAL HISTORY
Resolving this case requires a detailed review of the facts. In 2011, Walker was a postdoctoral fellow at the University of British Columbia in Vancouver, Canada. Her research focused on ways to assess and help mitigate pain in animals. At the time, she had applied for residency in Canada.
Cassandra Tucker is an associate professor in the UC Davis’s Department of Animal Science. Her responsibilities include recruiting, interviewing, and hiring postdoctoral researchers (postdocs).
In June 2011, Tucker contacted Walker and asked if she would be interested in working as a postdoc on a project focused on assessing pain relief and healing in beef cattle after undergoing hot-iron branding and castration. The hands-on work with the cattle would be conducted at the University’s research station, sometimes referred to as the Sierra field station, in Brown’s Valley, Yuba County. Walker was excited about the project.
Applications for funding
On July 25, 2011, Tucker forwarded information to Walker about a possible funding source for the project. The source was the Russell L. Rustici Rangeland and Cattle Research Endowment, a fund established at UC Davis. Walker wrote the primary drafts of the grant proposal, and the two agreed to make the project a two-year project.
Tucker and Walker discussed how their proposal should address Walker’s salary. Tucker informed Walker by e-mail it would be fine to have Walker’s salary paid from the grant. She proposed using the grant to cover as many months of salary Walker needed from the start of the project, January 1, 2012, until a grant from the Canadian government kicked in. Those funds would come from the National Science Engineering Research Council of Canada (NSERC).
Walker liked the proposal. She did not know when the NSERC funds would be available, as that depended on when she obtained residency in Canada. Walker asked if the Rustici funds would be able to assist with housing costs near the Brown’s Valley site. She thought she would have to keep her Vancouver home while she was in California “for a few months.”
Tucker and Walker agreed to propose in their grant application that Walker would be paid from the grant funds a salary of $44,000 plus benefits for the project’s first year. For the second year, Walker would need to find alternative funding.
Towards the end of 2011, Tucker saw a funding source for Walker’s second-year salary. She suggested Walker pursue a postdoctoral fellowship from the United States Department of Agriculture (USDA). Applying for this funding was not part of the research project or a project requirement; it was an opportunity for Walker to pursue at her option.
Tucker informed Walker about this fellowship a few weeks before the letter of intent to apply for it was due. Walker responded to Tucker the day before the letter of intent was due. She told Tucker she just realized the letter of intent was due the next day, but she would, and did, file the letter.
The USDA invited Walker to submit a full application for funding. On January 9, 2012, Walker told Tucker the USDA application was due by January 19. She wanted to submit the application by January 17, and asked Tucker if she would be willing to review the application before she submitted it. Tucker said she was happy to give Walker feedback. She stated she was busy, but, “I would love for you to get the money though, so let me know what would work for you.”
The application required more time to complete than Walker anticipated. On January 10, Walker told Tucker she would get something to her to review by the 17th. On January 13, Walker asked Tucker for assistance with the application. She asked Tucker to write a mentor letter and provide a biographical sketch of herself. Walker wrote, “I did not realize how much detail they would be needing for this application. If it is too much to complete for the deadline of the 19th, please let me know and I can try [to] assist with the letter/sketch writing or we can pass on the application.”
Tucker responded that day. She said she would work on the letter if Walker wanted to go forward. She also provided a biographical sketch. Walker responded on Monday, January 16, asking Tucker to provide more documentation. She asked Tucker if this was feasible.
Tucker responded the next day, January 17. She said she would look into the necessary documentation. Walker told her to submit everything to her by the following evening so she could submit the application on the 19th. She wrote, “I understand if it is too tight of a deadline. I am scrambling to gather the other information as it is! I did not plan ahead enough for this one—especially with the holidays.”
Later that day, Tucker forwarded to Walker a completed mentor letter. She was unable to draft the other requested information, but she provided some of the information the application sought. In the mentor letter, Tucker stated Walker “shows great potential to be a leader in agriculture.” In developing the project, Walker “took initiative and demonstrated independence . . . . In the writing process, [Walker] has demonstrated strong written communication skills . . . . Her writing skills are also evident in her four peer-reviewed publications to date, indicating her ability to complete and publish research findings.”
On Wednesday night, January 18, Walker informed Tucker she had been teaching all day and was just then starting to work on the application. She wrote, “If the materials cannot be pulled together by me tonight, then I fear it won’t be submitted. . . . I know now that I did not plan accordingly for this fellowship, unfortunately.”
On January 19, Tucker responded, “No problem either way—I completely understand. USDA applications are incredibly time consuming. . . . I hope it worked out, but if not, absolutely no worries.” Walker wrote back later that day, informing Tucker she did not submit the application. She stated the application was very time consuming and the forms kept asking for new and unanticipated information. She wrote, “I feel horrible about not submitting it; however, I did not want it to be an incomplete application. Now I know to plan way in advance for this type of application.”
Tucker agreed the instructions were often confusing. She stated to Walker, “Give yourself a break—no need to beat yourself up. It all works out in the end. Like you said, now you know for next time.”
Walker’s new employment and her relationship with UC Davis
Meanwhile, back in December 2011, Walker received an offer from Kwantlen University to teach biology courses for the spring 2012 term. Unsure if she and Tucker would win the Rustici grant, Walker thought it best to accept the teaching position to ensure she had a steady income. She would teach Tuesdays, Wednesdays, and Thursdays, “leaving it open for the possibility of coordinating some research on the longer weekends if that was feasible.”
Tucker congratulated Walker on the offer from Kwantlen University. She wrote, “We’ll find a way to make the research happen! I spoke with Dan Meyer (person in charge of branding) and he will hold our steers until at least March without branding, so we have time to figure out what we want to do.”
On January 23, 2012, Tucker learned the Rustici Endowment approved and funded the project. A few days later, she wrote Walker and asked when she would be available to come to Davis to conduct the full experiment. Tucker was thinking about running the project in Davis instead of in Brown’s Valley. This would allow them to wait until May or June to start the project. Tucker wrote, “I’m daunted by the idea of trying to run this without a person like you in charge. I don’t have the time to manage a project myself, nor do I have a staff or student I can put in charge right now.” She and Walker continued to exchange e-mails on questions about when and where to start and run the project.
Other contacts occurred during this time. Tucker invited Walker to peer review a research paper. At some point, Walker was identified as a temporary affiliate of UC Davis. She was issued an ID and given an e-mail address. However, she was not yet an employee. She understood the UC Davis ID did not mean she had an official appointment from the school.
Salary negotiations
On February 6, 2012, Tucker e-mailed to Walker a new University salary scale that applied to all postdocs appointed after February 1, 2012. Under the new scale, Walker would receive $41,364 in salary for the year. Tucker recognized the salary was lower than what Walker had hoped for, “but,” she wrote, “hopefully not too much lower. We could use any extra money to pay you for longer (e[.]g[.,] 13 months instead of 12, if the math worked out, for example) or towards additional labor to help you during the experiment. [¶] Please take this into consideration in your deliberations about the project.” Tucker understood the salaries in the scale were minimum salaries for full-time employment.
In response to receiving this information, Walker asked for a phone conference. She could not talk, though, until the following week. She understood Tucker needed to let the granting agency know “asap,” but she said, “I need to make sure I have thought everything through before we speak.” The two agreed to speak by phone on February 17, 2012.
That day, however, Walker cancelled the phone conversation. She told Tucker, “I have been dealing with some health issues lately, and had to take an unexpected trip to the doctor this morning.” She continued, “[I]n the past two weeks I have discovered a health issue that unfortunately is going to require me to stick close to the Vancouver area near my medical facilities. This is going to change my availability and commitments I can make to come to Davis to run the project. I would like to see the research move forward though, as I have put a lot of work over the years into developing these ideas! I have a few ideas of how to move forward with the grant that I would like to share with you.”
Tucker responded, “First and foremost, I’m sorry to hear that you are facing health issues. I am glad that you have good medical support and wish you a speedy recovery.” Tucker proposed a time to talk the following week. She wrote, “I fully appreciate your investment in these ideas and wanted to reassure you that I want this project to work for you. Even with the limitations you described in your previous email, I’m optimistic that we’ll find a way to complete this body of work together. I’m looking forward to discussing the options with you.”
On February 27, Tucker was concerned. She wrote to Walker, “Are you doing okay? I’m not sure what your silence means and I’m worried about you both personally and professionally. [¶] If things are not okay personally, take care of yourself and we’ll talk when you are feeling up to it.” Tucker asked Walker, if she was feeling better, to prepare a revised budget and timeline for the project on account of her reduced availability. Tucker thought Walker had cancer.
Walker responded that day. She did not mean to be silent. She was just gathering the information she needed to respond properly. She proposed working on the project part-time and hiring other people to assist in her absence. To that end, she proposed reducing her salary to $28,000 plus benefits. She also wrote that since the grant funds would switch from being her primary source of income to a supplementary source, she would have to find additional income, most likely teaching a course in the summer. This would mean she could be in Davis only on those days she did not teach.
On March 23, 2012, Walker called Tucker. She informed Tucker she was pregnant. The medical problems she mentioned earlier were complications with the pregnancy. Tucker was supportive and told Walker she was still willing to work with her on the project. After the telephone conversation, Walker sent Tucker an e-mail, thanking her for the “good talk and meetings.” She was “excited seeing the project moving forward.”
Walker testified in her deposition she requested maternity leave, and she wanted to work while on leave. She said, “I wanted to take—I was going to request and I did request maternity leave.” She did not want to work the entire year. She was not going to be able to come to Davis on the days surrounding the birth, but she still wanted to supervise students while on leave and be the main person who made decisions on the project. Later in her deposition, she stated she “was planning on taking maternity leave if I needed it.”
After the telephone conversation with Walker, Tucker met with Kelly Wade, the business office supervisor in the Department of Animal Science, to discuss Walker taking maternity leave. From that discussion, Tucker understood Walker could take maternity leave but would not be paid her normal salary while on leave.
Under the collective bargaining agreement between the University and the postdocs’ union, a postdoc is eligible to take pregnancy disability leave of up to four months. The leave is unpaid except to the extent the postdoc can use banked personal time off (i.e., sick leave and vacation time). The postdoc is also eligible to receive short-term disability coverage during the leave.
Tucker testified she did not explore the possibility of allowing Walker to take medical leave and receive short-term disability because Walker requested her leave be without pay so she could receive maternity benefits from the Canadian government. Walker introduced this fact in opposition to the summary judgment motion and did not dispute Tucker’s testimony on this point with any factual evidence.
Tucker and Walker had correspondence in April 2012 regarding Walker’s proposed reduced salary and possible maternity leave. Tucker told Walker on April 2 it “isn’t a problem to put you on leave (and thus stop your pay) during the time you take as maternity. Your appointment will need to be for at least 1 year, according to new union rules. Have you thought any more about how you’d like the money distributed? Anything less than 50% appointment won’t have benefits, but I’m assuming your health care will be covered by Canada. If you need to do anything extra to make sure you have coverage while you are in the US, we can charge this to the grant . . . .” Walker understood from this correspondence that maternity leave through UC Davis was unpaid.
Walker asked Tucker if she could be paid the full year salary by being paid more in the months she worked, or if she could be appointed at less than 50 percent but still receive the value of benefits in salary. She wrote: “So will my appt [sic] need to be for a year, without the maternity leave? Or can we say 1 yr [sic] salary from April – March, and then when I take the maternity leave no pay (but coordinate the salary difference to happen in the other 9 mths [sic])? . . . Also, [what] constitutes less than 50% appt? Would it be easier to appt me less than 50% so the $5500 from the benefits can be included in the salary . . . ?”
Tucker told Walker on April 4 her appointment could be for one year or more, depending on funding, without considering maternity leave. She said, “My impression is that the initial length of appointment is what is important for the union. The percentage is based on the salary alone.”
In an e-mail to Tucker on April 6, 2012, Walker expanded on her earlier proposal. She wrote: “If we can work it so that I am less than 50%, then the $5686 in benefits can be added to the salary and used for travel coverage. Are you OK with this? If so, I would propose one of the two following scenarios. 1. Base pay for 12 months of $33000 ($28500 originally budgeted, plus $4500 of the $5686 in benefits, the rest can be used for travel insurance). That would mean that the contract would need to state a salary of $67500/yr at .49% [sic]. This way there are no benefits to be paid. 2. Since I am planning on working on the grant still during my maternity leave, it would benefit me to have the pay from those months I will not get paid (Oct – Dec, is what I anticipate) bumped into other months. This would make the base salary rather large though and might look a bit suspicious. Base $88,000/yr * .49% = $43120. I would only be getting 9 months of this salary, so $3593/mth * 9 = $32340. Not sure if the pay months have to match up with the total contract in the end (since I will take at least 3 mths maternity). Does that make sense? They both work out to the same amount in the end, just different ways to pay it out. I would prefer option 2 then I have the money from working during the maternity leave (and it would make me feel a bit more financially secure while on maternity leave), but I understand if that is too tricky. Either way is it possible to start the pay for April?”
Tucker said she would try to respond more fully later, but, she wrote, Walker’s salary “certainly cannot exceed the amount outlined in the salary scale I sent to you before.” That amount was $41,364. Responding, Walker said the UC Davis Web site “states that the salaries . . . are minimum salaries for postdocs – not maximums. With this we should technically be able to make it work, wouldn’t we?”
Tucker responded the next day, April 7. She took issue with Walker’s proposals. She wrote, “Salaries of the level you suggestion [sic] could not be justified with your level of experience. The administrators (and the union) would quickly see that it is a ploy to avoid paying benefits. [¶] Now that I’ve had the chance to think about it more, I realized that I am not comfortable asking or expecting you to work during your maternity leave. I propose that we pay you for 3 months of full-time work for what you will do between now and October at the $41,364/year level. My expectation is that this would compensate you for the time committed to your visits here, your coordination with [others] and administrative aspects of the project, data analysis and at least a first draft of the manuscript. During your leave, I will involve you in conceptual level decisions about the experiments, but I will take care [of] things on a day to day basis with [others]. We can then rehire you for the analysis and paper writing (and possible coordination of the 3rd experiment, if we do not complete it in the fall) with the funds remaining after the experimental costs are covered. I am not yet sure how the mechanics of this will work, but I will look into it on Monday. [¶] I am willing to discuss this further, but would like to do so in person or over the phone. I am trying to find a balance between respecting your personal and professional needs, the needs of the project and my professional ethics. The solution I propose above reflects my weighting of these 3 issues.”
Tucker testified it was incorrect and a mistake on her part to use the word “rehire” in this e-mail. There was never a plan to terminate Walker and then think about rehiring her.
Walker responded on April 9. She wrote, “I do understand your point of not having me work during an official leave; however, I am dedicated to seeing this project through and would like the salary we agreed to in the re-budget [sic] guaranteed.”
On April 12, Tucker e-mailed Walker a spreadsheet indicating the salary she could offer her. Tucker proposed two options; one based on her previous proposal, and the other based on that same proposal but with Walker opting out of benefits. Under both of these options, Walker would not be paid during her maternity leave, but she would ultimately receive one year’s worth of pay because she would be paid for the first few months in the project’s second year. Tucker compared these two options to that proposed by Walker. She did not feel Walker’s proposal was appropriate because, she wrote, it “assumes work will be done during maternity leave; take away this assumption and it does not match work load time line.”
No agreement was ever reached on Walker’s salary.


Tucker decides not to hire Walker
Walker arrived in Davis on April 12 on a previously scheduled trip to meet with the people who would be conducting the hands-on research. She also tried to meet with Tucker that day, but they were unable to meet.
The following day, April 13, Walker met with Kelly Wade. The two talked about salary and contract options. Walker took issue with Tucker’s pay options because she did not want “the forced leave of absence.” Walker said Tucker first agreed to a one-year contract, and then changed the terms to hire her for three months and rehire her after a set amount of time if there were funds left. Walker said she should not be forced to take maternity leave because she did not know when maternity leave would actually be needed.
Wade recalled that Walker also said she did not want to be paid by the University during her maternity leave so she could receive Canadian maternity leave benefits. In her opposing statement of undisputed facts, Walker stated she disputed this fact, but she referenced no evidence that disputed what Wade recalled or that Wade testified to this effect.
Wade did not tell Walker about short-term disability benefits.
After Walker left her office, Wade wrote notes documenting the conversation. She did so because she was uncomfortable with it. Wade then contacted Tucker and informed her about the conversation with Walker. Wade said Walker was difficult with her in discussing salary.
Tucker asked if they could contact the Academic Personnel Office for assistance and to learn whether there was an obligation to go forward with the contract. Wade spoke with Tracey Pereida, an academic personnel specialist with the Office of Graduate Studies at UC Davis. Pereida’s duties included administering the appointment of postdocs at the university. Wade told Pereida that Walker wanted her salary paid a certain way and they could not accommodate her request. Wade also told her Tucker and Walker had been disagreeing on numerous things involving the grant, the research, location needs, and personnel needs. Walker had requested to work from home in Canada, and they were going to have to employ additional persons to do the work. Wade did not tell Pereida of Walker’s pregnancy or the need for maternity leave because “the discussion wasn’t about [Walker] needing maternity leave. [Walker’s] discussion was about obtaining 12 months of salary over a nine-[month period].” Wade also did not inform Pereida of the written salary negotiations that had occurred. Pereida told Wade there was no obligation to move forward with the contract if there was no contract in place.
At this point, Tucker decided not to hire Walker. She could not work effectively with Walker given their inability to agree on a salary and the difficulties she had working with her. In her declaration, Tucker stated these difficulties included Walker making unreasonable salary demands not consistent with her taking a genuine leave of absence, her delays handling matters related to the grant and planning for the project, her lack of diligence in obtaining funding for her second year of salary, and the difficulty Tucker had communicating with Walker.
Later in the day of April 13, 2012, Tucker told Walker she was not going to offer her the postdoc position. Walker testified Tucker told her she was not going forward with the appointment because Walker was being difficult. Walker asked if Tucker’s decision had anything to do with her going to speak with Wade, and Tucker said it did. Walker complained the decision was unfair, unethical, and was pregnancy discrimination. Tucker had not told Walker she did not trust her before this date.
At her deposition, Tucker testified to the reasons behind her decision: “I was having numerous challenges working with Dr. Walker. And that culminated in the difficulties we were having discussing salary and it made it so that I just did not feel that I could have a productive working relationship with her.” She said she waited until April 13, 2012, to make her decision because: “I think I just—I reached my tipping point in terms of the difficulty of the discussion.”
Discrimination claim and review
After meeting with Tucker, Walker contacted Sandi Glithero, a case coordinator in the UC Davis Academic Affairs Office, to complain that Tucker would not hire her because she was pregnant. Glithero, in turn, forwarded the complaint to Pereida. She informed Pereida of Walker’s contentions; that Tucker had originally agreed to hire her for one year, but upon learning Walker was pregnant, Tucker suddenly wanted to hire her only for three months, have a break in her contract instead of going out on maternity leave, and if there was money left after that, she might hire her back. Then, Tucker decided not to hire her at all.
Pereida obtained a written explanation from Tucker on why she did not hire Walker. Tucker explained she intended to hire Walker as a postdoc on the project. The two had agreed Walker would be located in Davis or in Brown’s Valley to perform and supervise data collection, and that Walker would obtain funding for her second year of work from Canada’s NSERC. Neither of those agreements came to fruition, as Walker was no longer willing to be located onsite for data collection, and she had not applied for the second-year funding.
When Walker informed Tucker she would not be able to be onsite for the data collection, Tucker identified another employee who would oversee the work and she asked Walker to supervise the employee from Vancouver. Walker unofficially revised the grant funding budget to cover this cost and reduce her involvement. Tucker originally agreed to this proposal and had Walker travel to Davis to discuss how the work would proceed.
Tucker continued, “Through this process, I have had numerous concerns about my ability to work with Dr. Walker as an employer. We have difficulty communicating; do not trust each other and I increasingly began to feel that a long-distance employer-employee relationship would not be in the best interests of the project as it would impair the quality of the work. I have raised these concerns with Dr. Walker in phone conversations at least twice and the patterns of mistrust have continued.” Tucker had not initiated any UC Davis paperwork to hire Walker.
Based on Tucker’s written statement, Pereida concluded the reason Walker was not hired was unrelated to her pregnancy. She informed Glithero by e-mail of her conclusion.
Walker also contacted Wendi Delmendo, the university’s chief compliance officer. Walker provided Delmendo with her e-mail communications with Tucker and a timeline she prepared regarding their interactions. Delmendo, in turn, reviewed the complaint with her colleague, Barbara Aguirre, the university’s director of academic employment and labor relations. Aguirre’s role in this matter was to determine preliminarily whether there was cause to proceed with a formal investigation of Tucker for violating the university’s faculty code of conduct.
Both Delmendo and Aguirre interviewed the persons involved in the conflict. They spoke with Walker to hear her side of the controversy. Walker contended the reason for the conflict over her employment was that she informed Tucker she was pregnant. The tenor of the salary negotiations changed after she informed Tucker she was pregnant.
Delmendo and Aguirre spoke with Tucker. Tucker explained she originally intended to hire Walker, but decided not to hire her because of her unreasonable salary expectations, her dwindling interest in coming to California to do the work, and the difficult working relationship that had developed between the two women.
Delmendo and Aguirre also spoke with others. They spoke with Wade. Aguirre spoke with two additional UC Davis professors, Dan Weary and Joy Mench. Based on these interviews, Aguirre stated Tucker harbored concerns about hiring Walker before Walker announced her pregnancy.
From their review, Delmendo concluded Walker’s claim of discrimination based on pregnancy could not be substantiated. She communicated her conclusion to Walker.
Aguirre concluded there was not enough evidence to convene a formal investigation into Tucker’s actions because there was insufficient evidence to conclude Tucker decided not to hire Walker based on her pregnancy.
Walker delivered her baby on October 17, 2012. She received maternity benefits from Canada.
PROCEDURAL HISTORY
Walker received a right-to-sue notice from the Department of Fair Employment and Housing, and she filed this action against the University. She pleaded four causes of action: failure to prevent discrimination, and discrimination based on pregnancy; failure to engage in good faith to determine reasonable accommodations; failure to accommodate; and retaliation for exercising her statutory right to request leave for pregnancy.
The trial court granted summary judgment in favor of the University. It ruled Walker failed to establish any triable issues of material fact regarding all of her causes of action.
DISCUSSION
I
Standard of Review
“We review an order granting summary judgment de novo, ‘considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained.’ (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 (Guz).)
“A defendant moving for summary judgment must show ‘that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.’ (Code Civ. Proc., § 437c, subd. (p)(2).) ‘In performing our de novo review, we must view the evidence in a light favorable to plaintiff as the losing party [citation], liberally construing [his or] her evidentiary submission while strictly scrutinizing defendants’ own showing, and resolving any evidentiary doubts or ambiguities in plaintiff’s favor.’ (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) We accept as true both the facts shown by the losing party’s evidence and reasonable inferences from that evidence. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 856.)
“Summary judgment is appropriate only when ‘all the papers submitted show that 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.’ (Code Civ. Proc., § 437c, subd. (c).) A triable issue of material fact exists if the evidence and inferences therefrom would allow a reasonable juror to find the underlying fact in favor of the party opposing summary judgment. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 850, 856.)” (Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1158.)
We will discuss the standard of review in more detail below as needed.
II
Discrimination
Walker alleges the University withdrew its employment offer because she was pregnant. She contends she submitted sufficient evidence to create a triable issue of material fact on the University’s intent and reasons for not hiring her. We conclude she did not.
A. Standard of review
Under the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq., (FEHA)), it is generally unlawful for an employer to refuse to hire someone due to pregnancy or any medical conditions related to pregnancy and childbirth unless the refusal is based upon a bona fide occupational qualification. (Gov. Code, §§ 12940, subd. (a); 12926, subd. (r)(1).)
An employer named as a defendant in a discrimination case under FEHA “may move for summary judgment against a discrimination cause of action with evidence of a legitimate, nondiscriminatory reason for the adverse employment action. (Guz, supra, 24 Cal.4th 317, 357.) A legitimate, nondiscriminatory reason is one that is unrelated to prohibited bias and that, if true, would preclude a finding of discrimination. (Id. at p. 358.) The employer's evidence must be sufficient to allow the trier of fact to conclude that it is more likely than not that one or more legitimate, nondiscriminatory reasons were the sole basis for the adverse employment action. (Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th 1088, 1097-1098.)
“By presenting such evidence, the employer shifts the burden to the plaintiff to present evidence that the employer’s decision was motivated at least in part by prohibited discrimination.[ ] (Guz, supra, 24 Cal.4th at pp. 353, 357.) The plaintiff’s evidence must be sufficient to support a reasonable inference that discrimination was a substantial motivating factor in the decision. (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232; Guz, at pp. 353, 357[, italics added].) The stronger the employer’s showing of a legitimate, nondiscriminatory reason, the stronger the plaintiff’s evidence must be in order to create a reasonable inference of a discriminatory motive. (Guz, at p. 362 & fn. 25.)
“Although an employee’s evidence submitted in opposition to an employer’s motion for summary judgment is construed liberally, it ‘remains subject to careful scrutiny.’ (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433.) The employee’s ‘subjective beliefs in an employment discrimination case do not create a genuine issue of fact; nor do uncorroborated and self-serving declarations.’ (Ibid.) The employee’s evidence must relate to the motivation of the decision makers and prove, by nonspeculative evidence, ‘an actual causal link between prohibited motivation and termination.’ (Id. at pp. 433-434.)
“To show that an employer’s reason for termination is pretextual, an employee ‘ “cannot simply show that the employer’s decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent.” ’ (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1005.) To meet his or her burden, 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,’ ” ’ and hence infer ‘ “ ‘that the employer did not act for [the asserted] nondiscriminatory reasons.’ ” ’ (Ibid.) . . .
“In short, where the case has been decided on summary judgment, ‘ “ ‘[i]f the employer presents admissible evidence either that one or more of plaintiff’s prima facie elements is lacking, or that the adverse employment action was based on legitimate, nondiscriminatory factors, the employer will be entitled to summary judgment unless the plaintiff produces admissible evidence which raises a triable issue of fact material to the defendant’s showing.’ ” ’ (Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 344, italics omitted.)” (Featherstone v. Southern California Permanente Medical Group, supra, 10 Cal.App.5th at pp. 1158-1160.)
The University introduced sufficient evidence showing Tucker decided not to hire Walker based on legitimate, nondiscriminatory reasons. These reasons included Walker’s demands for a questionable salary structure the University could not accommodate, her delay in acting upon Tucker’s suggestions for obtaining funding for her own salary for the project’s second year and her failure to obtain that funding; Walker’s inability to be in California as originally contemplated to perform the day-to-day operations of the project; and the difficulty Tucker encountered in communicating with Walker.
B. Walker’s evidence of pretext
Walker argues each of the University’s grounds for not hiring her are pretextual explanations to disguise its true intent not to hire her because she was pregnant. We review, and reject, each of her contentions.
1. Salary dispute
Walker contends the failure to agree upon a salary was a pretext for not hiring her because there was no evidence any conflict over the salary arose until Tucker told Walker she would work for three months, take a forced leave, and then be rehired if there were any funds remaining. She argues this is sufficient evidence for the jury to infer Tucker told Walker she had to go without pay during maternity leave in order to make Walker abandon the project.
We disagree. The undisputed facts show the salary conflict arose when Walker requested a salary the University could not and would not provide. Tucker did all she could to accommodate Walker’s pregnancy, both before and after Walker proposed her salary. But Tucker was under no obligation to accommodate an unethical, if not unlawful, salary request such as Walker proposed.
After Walker announced she was pregnant, Tucker accommodated Walker to allow her to continue working on the project part-time. Then Walker in writing proposed her salary plan. She asked for unpaid maternity leave so she could qualify for Canadian maternity benefits. But she also wanted to work while on maternity leave and be paid for that work. To accomplish this scheme, she asked to reduce her time on the job to an amount where she would not qualify for benefits, but, in the same breath, she asked to receive the value of those benefits (for which she would no longer qualify) as salary. Then she asked to be paid a full year’s salary spread over nine months instead of 12 so she could be compensated for work she did while on leave but still be able to declare to the Canadian government she was not on paid maternity leave. Implementing this plan within the University’s pay structure required her to be paid based on full-time salaries far above the minimum salary for which she qualified. These documented demands by Walker were the genesis of the salary conflict. Tucker’s counterproposal was in response to demands she believed were professionally unethical and against University policy. There is no evidence she made her counterproposals as a pretext to discriminate against Walker due to her pregnancy.
Walker asserts without evidentiary support that Tucker was forcing her to take an unpaid leave. The evidence shows Walker was the one who specified she wanted to take a leave. Indeed, while negotiating her salary, she told Tucker she would take at least three months of maternity leave, and she anticipated doing so from October through December 2012. Tucker’s counterproposals were all based on Walker’s requests for three months of unpaid leave. Her April 7 e-mail, the one Walker relies on for her argument, merely accommodated Walker taking leave as she had requested. Tucker wrote: “I propose that we pay you for 3 months of full-time work . . . . During your leave, I will involve you in conceptual level decisions about the experiments . . . . We can then rehire you for the analysis and paper writing . . . with the funds remaining after the experimental costs are covered.”
Walker clings to Tucker’s use of the word “rehire” to assert Tucker intended to terminate her and then rehire her if funds remained. But Tucker did not intend to terminate her. Tucker’s final proposals showed she intended to appoint Walker for longer than one year to accommodate her maternity leave and to be able legitimately and lawfully to pay Walker one full year’s worth of wages. The collective bargaining agreement required a postdoc who was on maternity leave to “be reinstated to the same position” if it was not abolished or affected by layoff, and Tucker’s proposals indisputably show that was Tucker’s intent. Nowhere did Tucker use the word “terminate” or suggest that was her intention.
Walker’s claim that Tucker was trying to force Walker out of the project by requiring her to take unpaid leave is a deliberate mischaracterization. There is no evidence supporting the assertion, while all available evidence contradicts it. All the evidence indisputably shows Tucker attempted to hire and accommodate Walker and her pregnancy as much as possible both before and after Walker proposed her salary. Tucker recommended funding sources. She supplied a letter of recommendation for one of those sources even though asked of her at the last minute. She agreed to Walker working part-time. Most importantly, she agreed to Walker’s request for unpaid maternity leave and made every reasonable attempt to satisfy her request. Even after Walker made her illegitimate salary proposals, Tucker still responded with a salary proposal that would meet Walker’s specified needs within the limits of Tucker’s ethics, school policy, and, frankly, the law, and still accommodate Walker’s pregnancy. There is no evidence whatsoever Tucker’s decision not to hire Walker based on the nature of the salary negotiations was a pretext for pregnancy discrimination.
2. Remaining claims of pretext
Walker raises other arguments of pretext. She contends not hiring her due to her delay and ultimate failure in obtaining funding for her second year’s salary, any difficulties in communication between her and Tucker, and her decreased availability and commitment to the project were pretexts hiding discriminatory motive. Because the University’s showing that the salary dispute was a legitimate reason for not hiring Walker is so strong, the stronger Walker’s evidence must be in order to create a reasonable inference that discrimination was a substantial motivating factor in Tucker’s decision. (See Featherstone v. Southern California Permanente Medical Group, supra, 10 Cal.App.5th at pp. 1158-1160.)
Walker’s showing does not remotely meet this standard. Pretext is not shown where an employer “simply supplemented its explanations in the context of [administrative] charges and litigation,” where “there has been no retraction of any of its reasons” for taking its action, and none of its reasons are “inconsistent or conflicting.” (Johnson v. Nordstrom Inc. (7th Cir. 2001) 260 F.3d 727, 733-734 [Title VII action].)
Walker’s delay and inability to obtain funding for her second year on the project was not a pretext for not hiring her. She claims Tucker knew NSERC funding was contingent on her obtaining Canadian residency. And Tucker said Walker was not required to obtain the USDA fellowship as part of the project. Tucker told her she completely understood her failure to submit the USDA application timely and there was no problem because of it. Moreover, Walker’s initial employment was not dependent on her obtaining second-year funding, and Tucker did not express concern about Walker’s funding efforts until after she decided not to hire her.
Walker’s evidence does not conflict with Tucker’s testimony that Walker’s failure to obtain funding contributed to her decision. At the time, Tucker said it would all work out in the end, but Walker had not planned enough time to complete the USDA application, and there is no evidence she did anything to find funding for her second year on the project after her failed attempt for the USDA fellowship. This played into Tucker’s growing feelings of mistrust towards Walker once the salary dispute broke open.
Tucker’s difficulty in communicating with Walker was not a pretext for not hiring her. Walker contends there is no evidence any difficulty in communicating with Tucker was a concern until after she decided not to hire Walker and Walker complained of discrimination. Tucker admitted she communicated with Walker using Skype without major problems, and evidence showed work schedules and commitments made it difficult to communicate with each other at times. However, at one point after Walker told Tucker she was experiencing health issues, there was a gap in communication. On February 27, Tucker asked Walker, “Are you doing okay? I’m not sure what your silence means and I’m worried about you both personally and professionally.” This lack of communication occurred before Walker told Tucker she was pregnant, and it led in part to Tucker believing Walker had cancer. Under these circumstances, we cannot conclude Tucker’s reason for not hiring Walker due in part to communication difficulties is unworthy of credence.
Tucker’s concerns over Walker’s decreased availability and commitment to the project were also not pretexts for not hiring her. Walker contends the evidence shows she was committed throughout the project, and Tucker assured Walker her availability was not a concern. But the evidence also shows Walker’s availability decreased before she announced she was pregnant. In December 2011, she accepted the offer to teach at Kwantlen University, which would limit her to coordinating research on the UC Davis project on the longer weekends. In February 2012, after informing Tucker she was having health problems that would limit her involvement in the project, Walker proposed working part-time, and, as a result, needing to have another teaching job in the summer. She could be in Davis only on days she did not teach.
Although Tucker attempted to accommodate these changes, there is no doubt they would require her to spend more time on the project, time she earlier told Walker she did not have. That was why she needed someone like Walker to manage the project. Yet she ended up proposing to run the project’s day-to-day operations while Walker was on leave to keep the project going. Delmendo testified she found nothing in Walker’s complaint suggesting she was unwilling to come to Davis for any reason other than her pregnancy, but Walker had already given Tucker another reason—her need to have a second teaching job in Canada to supplement her income. Under these circumstances, we cannot rationally find Walker’s decreasing availability was unworthy of credence as a grounds for not being hired.
Walker points to other evidence that also fails to establish an inference of pretext in light of the undisputed facts. She notes Tucker made her decision after learning Walker was pregnant. But Tucker attempted to accommodate Walker’s pregnancy. It was not until Walker proposed her unethical and possibly illegal salary and then took the matter to Wade that Tucker decided not to hire Walker.
Walker asserts Tucker never mentioned the concerns she expressed in her written explanation to Wade until after she decided not to hire her. But Tucker expressed them to Wade after Wade met with Walker, and Wade in turn expressed them to Pereida before Tucker made her decision. That Tucker may have held her concerns close to her chest during the hiring process does not mean she did not have them.
Walker claims Delmendo substantiated her claim that Tucker talked about rehiring her after the forced leave if there was money left in the grant. But Delmendo was not asked about a forced leave. She was asked if Tucker talked about the possibility of hiring Walker back “if there was money left over when she was ready to return to work,” and “after she was done having her baby and if there was money left over.” Delmendo substantiated those statements, but nothing in those statements suggests a forced leave, nor do they rationally suggest a pretext for not hiring Walker. They simply confirm that Tucker intended Walker to work on the project after her leave.
Walker asserts inconsistent and contradictory findings made in the University’s review of her complaint suggest Tucker’s reasons for not hiring her are a pretext for discriminatory intent. However, the undisputed evidence corrects the immaterial discrepancies Walker cites.
Delmendo testified there was some discussion by Tucker about hiring Walker for three months, having a break in the contract, and hiring her back after she had her baby. Aguirre testified she did not investigate whether Tucker wanted to have a break in Walker’s contract instead of having her take maternity leave. But it is undisputed Walker, during her salary negotiations, requested and planned on a three-month maternity leave, and Tucker was attempting to accommodate that request.
Aguirre said one of Tucker’s reasons for not hiring Walker was Walker took a teaching position in Canada and would not be as available as originally intended. Pereida said Wade told her Walker was not hired because she was not coming to California to do the work. But Delmendo said she found nothing suggesting Walker was unwilling to come to California for any reason other than her pregnancy. However, it is undisputed Walker herself told Tucker she would have less time to come to California because she would need a second teaching job in Canada during the summer, and she communicated this to Tucker before she announced her pregnancy.
In short, there is no disputed issue of material fact regarding Tucker’s reasons for not hiring Walker. The trial court correctly granted summary adjudication against Walker’s discrimination cause of action.
III
Failure to Prevent Discrimination
Walker alleges the University failed to take all reasonable steps to prevent discrimination by implementing adequate policies and procedures, trainings, and investigations, and by taking prompt and effective corrective action upon learning of the discrimination against her. She contends the court erred when it granted summary adjudication against this claim. We disagree.
FEHA makes it unlawful for an employer “to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” (Gov. Code, § 12940, subd. (k).) However, there is “ ‘no logic that says an employee who has not been discriminated against can sue an employer for not preventing discrimination that didn’t happen, for not having a policy to prevent discrimination when no discrimination occurred . . . .’ Employers should not be held liable to employees for failure to take necessary steps to prevent such conduct, except where the actions took place and were not prevented.” (Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 289.) Because Walker’s underlying discrimination claim fails, her failure to prevent claim also fails.
Walker claims, without offering argument, that disputed issues exist because the University’s investigation into her complaint was a cursory and result-oriented “informal review,” and because Wade failed to report Walker’s discrimination complaint. Walker does not argue how the University’s review or Wade’s alleged failure to report Walker’s discrimination complaint was legally insufficient in order to establish a disputed material fact. There is no dispute that Walker’s complaint of discrimination was reviewed by three University personnel. They interviewed the parties involved, allowed Walker to present her side of the matter, and issued conclusions based on the facts as they found them. The trial court correctly granted summary adjudication on Walker’s claim of failure to prevent discrimination.
IV
Good Faith Engagement in Interactive Process
Walker claims the University violated its statutory obligation to engage in a good faith interactive process to determine effective reasonable accommodations for her. She alleges in her complaint the University knew of her pregnancy, which would require her to take time off to seek treatment for her health accommodations associated with the pregnancy, but it withdrew employment without exploring any options to accommodate her.
She argues the trial court erred by granting summary adjudication against this claim because both sides presented evidence showing she wanted to take maternity leave only if she needed it, and she wanted to continue working on the project while she was on leave. She also proposed other “accommodations,” some of questionable ethical and legal propriety, regarding her salary. She claims Tucker refused to consider her options, offered her only a three-month contract followed by a forced unpaid maternity leave, and offered no guarantee of being rehired unless funds remained. Before Walker could respond to Tucker’s proposals, Tucker cut off discussions and decided not to hire her. Walker also claims Tucker and Wade should have informed her she was eligible for short-term disability as part of the interactive process.
We disagree with Walker’s contentions on this issue. All undisputed material facts establish Tucker in good faith engaged in an interactive process to attempt to find a reasonable accommodation.
“Under [Government Code] section 12940, subdivision (n), it is separately actionable for an employer to fail ‘to engage in a timely, good faith, interactive process with the employee . . . to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee . . . with a known physical or mental disability or known medical condition.’ ([Gov. Code,] § 12940, subd. (n); Gelfo v. Lockheed Martin Corp. [(2006)] 140 Cal.App.4th [34,] 54.) ‘ “The ‘interactive process’ required by the FEHA is an informal process with the employee or the employee’s representative, to attempt to identify a reasonable accommodation that will enable the employee to perform the job effectively.” ’ (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1013.)
“Both the employer and the employee are responsible for participating in the interactive process. Typically, the employee must initiate the process ‘unless the disability and resulting limitations are obvious.’ (Scotch v. Art Institute of California, supra, 173 Cal.App.4th at p. 1013.) ‘ “Where the disability, resulting limitations, and necessary reasonable accommodations, are not open, obvious, and apparent to the employer, . . . the initial burden rests primarily upon the employee . . . to specifically identify the disability and resulting limitations, and to suggest the reasonable accommodations.” ’ (Ibid.)” (Featherstone v. Southern California Permanente Medical Group, supra, 10 Cal.App.5th at pp. 1168-1169.)
The undisputed evidence shows Tucker engaged in the interactive process in good faith. Upon learning of Walker’s medical problems and then her pregnancy, Tucker recommitted to have Walker work on the project in the way that best met Walker’s needs. Walker proposed working part-time and having others work on the project, and Tucker agreed to that. Walker proposed unpaid maternity leave, and Tucker agreed to that. The only accommodation Tucker refused to make was agreeing to Walker’s inappropriate request to structure her salary so she would appear not to be paid while on maternity leave but to be paid for the time she worked on maternity leave. Tucker concluded this request was professionally unethical and not consistent with the University’s salary policies. Yet she still offered to accommodate Walker’s pregnancy by providing unpaid maternity leave and paying Walker into her second year on the project to ensure she earned 12 months worth of salary. It was Walker who contested that proposal by going to Wade. There is no material evidence suggesting Tucker did not engage in the interactive process in good faith.
Walker contends Tucker did not interact in good faith because she offered only an option to accept a three-month contract, then be forced into leave, and then be rehired only if funds remained. Walker contends she did not want to be forced to take a leave because she was not sure if she would need it. But as we stated earlier, Walker was not forced to take maternity leave. She requested it, and she planned for it. In her e-mail of April 6, 2012, she told Tucker she would take at least three months unpaid maternity leave, and she anticipated doing so from October through December. Tucker’s response was based on that request. In short, Tucker did not fail to engage in the interactive process when she accommodated Walker as much and as often as she felt she ethically could.
Tucker and Wade’s decision not to inform Walker about the possibility of short-term disability also is not a failure to interact. The undisputed evidence shows they did not inform Walker because she requested specifically not to be paid while on maternity leave so she could qualify for maternity benefits in Canada. Tucker and Wade were not required to continue pressing a point which Walker had already foreclosed.
The undisputed evidence establishes Tucker and the University in good faith engaged in an interactive process to find a reasonable accommodation for Walker.
V
Failure to Accommodate
Walker alleges the University failed to make reasonable accommodations for her pregnancy. She claims it failed by forcing her to take maternity leave, not guaranteeing a right to return to work, and not offering her short-term disability. She continues to beat a dead horse. The undisputed facts show Walker requested maternity leave, Tucker offered her maternity leave with a right to return to work consistent with University policy, and Tucker and Wade did not discuss short-term disability because it would not address Walker’s specific accommodation request. What Tucker refused to accommodate was Walker’s request for the University to engage in her charade against the Canadian government and against the school’s own policies. Tucker reasonably decided against accommodating Walker’s unreasonable request.


DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to the University. (Cal. Rules of Court, rule 8.278(a).)


NICHOLSON , Acting P. J.



We concur:



ROBIE , J.




MURRAY , J.