California Cases August 31, 2020: Cervantes v. Silicon Valley Bank

Case Description

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(San Francisco County Super. Ct. No. CGC-17-561877)

David Cervantes appeals after the trial court granted the motion for summary judgment filed by respondent Silicon Valley Bank (SVB) in this action arising from the termination of Cervantes's employment with SVB. On appeal, Cervantes contends the court erred when it granted SVB's summary judgment motion because the court ignored evidence or misapplied standards showing there are triable issues of material fact regarding whether SVB (1) wrongfully terminated him in violation of the public policy against disability discrimination; (2) failed to make reasonable accommodation for his disability; and (3) discharged him in retaliation for his request for reasonable accommodation. Cervantes also asserts that because these three causes of action remain viable, the court improperly found that his punitive damages claim failed as well. We shall affirm the judgment.

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On October 13, 2017, Cervantes filed a complaint for damages alleging three causes of action against SVB under the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900, et seq.), including (1) wrongful termination in violation of the public policy against disability discrimination; (2) disability discrimination—failure to provide reasonable accommodation; and (3) unlawful retaliatory discharge.

On September 27, 2018, SVB filed a motion for summary judgment.

On January 18, 2019, following a hearing, the trial court granted SVB's motion for summary judgment. On January 23, SVB filed a notice of entry of order granting summary judgment.

On February 14, 2019, the court entered judgment for SVB, and on February 20, SVB filed a notice of entry of judgment.

On March 21, 2019, Cervantes filed a notice of appeal.

Cervantes began working for SVB in June 2015, as director of integrated marketing within the multi-channel marketing (MCM) group. He was an at-will employee. The relevant job description reflects that Cervantes's position included a mix of managerial, strategic, and execution-related duties. For example, the job description summarizes this director job as being "responsible for developing, maintaining, and championing integrated marketing plans and programs that ensure the promotion, awareness and adoption of a range of SVB products and services . . . ." The skills and requirements for the job included "15 years of experience in

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strategic marketing planning and a proven track record in developing and implementing integrated marketing plans within the financial services sector," as well as "[e]xperience managing and developing teams of marketing employees . . . ." According to Cervantes, his primary focus was on product marketing and campaign execution. He also filled in where there were gaps in strategy and digital marketing coverage, but by May 2017, his job included "little to no" strategy work.

During his employment with SVB, Cervantes reported to David Dean until Dean's retirement in May 2017. Cervantes never received a negative review from Dean and in 2016, he received an above average bonus.

In January 2017, Michelle Draper, chief marketing officer for SVB, began implementing a reorganization of the marketing department. The reorganization was to include, inter alia, creation of a new, separate marketing strategy group and development of the marketing department's internal ability to produce creative writing and digital marketing content in-house. Draper hired Susheela Vasan to lead the new marketing strategy group. Before the reorganization, the MCM group was responsible for both marketing strategy work and execution and delivery of marketing strategies.

In May 2017, Draper hired Kevin Considine to replace Dean as head of MCM. His responsibilities included independently evaluating the MCM group and proposing structural changes that "would benefit the MCM group's ability to deliver and execute [SVB's] marketing strategy" as part of the reorganization. Considine was Cervantes's direct supervisor.

Within a few weeks of being hired, Considine started specifically looking at Cervantes's role, given that half of his job had been turned over to Vasan and her marketing strategy group. He began working with Tina Sandford, who was in charge of human resources (HR) operations, policies,

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and projects, about possible ways to restructure the MCM group. In a June 12, 2017 email chain between Considine and Sandford, Sandford attached Cervantes's job description, stating, "Attached is what David was hired into. This may be helpful to compare against what you are thinking of creating." Considine responded, also on June 12: "Helpful document. In reading through, I see a big strategic component to that historical role. Much of that work is moving to Susheela [Vasan] moving forward." Also on June 12, Sandford sent an email to Considine in which she stated, "We'll need to talk a bit more about David's role and how that compares to the role you will look to fill. Let me know when you have some time to chat further." Within a few days of these emails, Considine told Sandford that he would probably recommend eliminating Cervantes's position because of its "significant redundancy" with Vasan and the new marketing strategy group.

Sometime in early June 2017, Considine also told Draper that Cervantes's position would likely be eliminated given the overlap between his prior role and Vasan's new role.

On July 14, 2017, Considine sent Sandford an updated draft of a business case document in which he described his proposed reorganization, which included the elimination of Cervantes's position and his layoff, as well as the elimination of two other high level MCM group positions—the director of field marking and the digital marketing leader—and those two employees' layoffs.

On August 16, 2017, Considine finalized the business case document in which he described the plan to eliminate the three MCM group leader positions, including Cervantes's director position. He noted that the integrated marketing team led by Cervantes had "traditionally led all of our work from strategy through execution perspective. Now this team will be

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closely connected to the Marketing Strategy group that was recently formed." Considine envisioned the new role for the leader of integrated marketing as that of a senior manager, a lower level position with reduced responsibilities, based on the transfer of the marketing strategy component from the MCM group to the new marketing strategy group. The new position would be "focused on execution, a 'player coach,' meaning s/he could effectively create and produce marketing content while at the same time working on projects side-by-side a team as a hands-on 'doer.' " Considine believed that Cervantes was overqualified for the position and that, based on his observations of Cervantes's work and management style, he was more a manager than a doer.

Both Sandford and Draper approved of Considine's plan, and agreed that the integrated marketing team no longer needed a director level leader like Cervantes, with Draper noting that "the strategic component of his former position no longer existed." Draper also agreed with Considine's idea of replacing the director position with a senior manager who was a talented "player coach" who "would be able to actively perform tasks and lead by example rather than simply administratively managing a team." Both Draper and Sandford further believed that Cervantes was overqualified for and not well suited for the reduced senior manager role.

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Considine's restructuring plan was announced and implemented on August 22, 2017, at which time Cervantes, the director of field marking, and the digital marketing leader were laid off.

The job description for the new position of senior manager of marketing communications included the following general responsibilities: "This role is a player/coach position, and the right candidate will be responsible for leading a piece of work directly as well as providing oversight and guidance to the broader team. The [integrated marketing] team is the group within MCM that is responsible for aligning closely with the Marketing strategy team and serving as the delivery function. . . ."

After Cervantes was laid off, Brian Schmitz took over as leader of integrated marketing team on an interim basis until a new senior manager was hired. Schmitz interviewed for the senior manager position and Considine told him he was looking for someone to serve as a "player/coach." Ultimately, Schmitz was not hired permanently into the new position.

Heather Campbell was hired for the new senior manager role in January 2018. She learned of the job when Considine, with whom she had previously worked years earlier, contacted her to ask if she knew anyone who might be interested in the position. When she first met with Considine to discuss the job, he explained that "they were looking to fill it with somebody who both had experience leading a marketing communications team as well as somebody who was a marketer who could actually manage projects." In her role as senior manager, Campbell worked on numerous projects herself, as well as managing the work of her team.

Considine estimated that Campbell currently spent approximately 40 percent of her time actively working on projects and 60 percent of her time as a manager. In addition, before the reorganization, almost all of MCM's

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digital and writing work was outsourced to agencies. After the change, approximately 50 percent of that work was now done in-house.

Cervantes suffers from Type 1 diabetes. He wears a visible pump on his belt loop for delivery of insulin. His condition requires him to inject insulin multiple times a day and monitor his blood sugar through frequent testing. The testing, which he must do four to six times a day, requires him to draw blood with a lancet, place the blood on a testing strip, insert the strip into his testing machine, and obtain a reading of his blood sugar levels. This process takes between 30 seconds and 1 minute. He needs a flat surface to change his pump, use sterile alcohol pads, and clean his instruments. While at SVB, Cervantes had a private office where he was able to regularly monitor his blood sugar levels, change his pump if necessary, and manage his diabetes effectively.

In June 2017, Cervantes first informed Considine that he had diabetes and that he used a pump throughout the day. He did so because he did not want Considine to think that when his pump buzzed during meetings, he was losing focus and checking his cell phone, and also in case he had a diabetic-related event in the office. This conversation with Considine lasted about 15 seconds, and Considine's response was, "Okay."

Previously, in late 2016, Cervantes had learned that the San Francisco office of SVB would be moving to a different office building in 2017. In late June or early July 2017, he found out that the move would take place on August 28. Cervantes attended a presentation in early July about the new office space, and learned there would be no private offices; instead, there would be tables without assigned seating.

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Around mid-July 2017, after seeing the planned layout of the new office space, Cervantes raised concerns with Considine about whether he would have a private, clean place with a flat table to manage his diabetes on a daily basis. Because he was new, Considine was unsure of who to talk to about that issue, and Cervantes said he would find the HR or facilities person who could help him. Cervantes then had his assistant look into who he should talk to. His assistant learned that the new office space would have a nursing room and a private room, which could not be reserved, and also directed him to Lisa Singh in HR to discuss the issue.

On August 8, 2017, Cervantes sent an email about his concerns to Singh, who then called him and said she would look into the matter and follow up with him about the person he should to speak with. On August 15, because he had not heard back from Singh, Cervantes sent her another email, to which Singh replied, letting him know that Anna O'Connor, SVB's senior HR manager for benefits, would be helping him with the issue. Cervantes called O'Connor the following day and explained his situation. O'Connor, whose duties included providing advice and support to employees on issues related to reasonable accommodations for disability, discussed with Cervantes his situation and suggested possible accommodations, which Cervantes believed were insufficient. O'Connor then asked Cervantes to speak to his doctor about his specific needs and complete a questionnaire to help her better understand his restrictions. She sent him a copy of the questionnaire that same day and on August 21, Cervantes responded that he

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would be meeting with his doctor that week and would return the questionnaire after the appointment. O'Connor did not hear back from Cervantes, and later learned that he had been laid off.

According to O'Connor, when an employee makes a reasonable accommodation request to a supervisor, the supervisor is supposed to inform O'Connor of the request.

During Cervantes's employment with SVB, SVB had a reasonable accommodation policy, set forth in its employee handbook, which provided in relevant part: "SVB makes reasonable accommodations for employees with known disabilities, who . . . have a medical condition. SVB will engage in a cooperative dialogue and good faith interactive process with any employee who believes an accommodation may be appropriate to identify reasonable accommodations that do not result in an undue hardship to SVB. The cooperative dialogue may take place in person, by telephone, or by electronic means. . . . [¶] As part of the cooperative dialogue, [SVB] reserves the right to request medical documentation from an employee under appropriate circumstances and applicable law. . . . [¶] . . .

"Employees who have questions regarding this policy or would like to request a reasonable accommodation pursuant to this policy should contact their HR Business Partner/HR Rep."

While he was working with HR on the question of reasonable accommodation, some three weeks after his initial conversation with Considine about the new office space, Cervantes again raised his concerns with Considine about the lack of a private space for managing his diabetes in the new office. Considine recalled having this second conversation with Cervantes on August 10, 2017, after which he sent Sandford an email stating, "David mentioned to me that he has diabetes. He was worried about the new

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offices providing enough privacy for him to manage his daily routine. I said the new floor plan does include plenty of private rooms." Sandford called Considine and told him that the new office would have a number of lockable, private rooms with sinks ("lactation" rooms) and other lockable, private rooms ("wellness" rooms) available for employees' use. Before receiving the email from Considine, Sandford had not known that Cervantes had diabetes. For her part, Draper did not recall learning that Cervantes had diabetes or required a private space to test his blood sugar until Considine told her, during a meeting around August 12, 2017, that Cervantes had expressed concern about being able to test his blood sugar levels after the office move.

Cervantes believed he had a good relationship with Considine. From the time he talked to Considine about his diabetic condition until his termination, Considine never made any comments about his diabetes and he had no reason to believe Considine was hostile to his request for accommodation.

Cervantes contends the court erred when it granted SVB's motion for summary judgment because it misapplied legal standards and ignored evidence showing there are triable issues of material fact with respect to the three causes of action alleged in his complaint.

A motion for summary judgment "shall be granted if 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 defendant moving for summary judgment has the initial burden of showing either that one or more elements of the cause of action cannot be established or that there is a complete defense. (Code Civ.

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Proc., § 437c, subd. (p)(2).) If that initial burden is met, the burden shifts to the plaintiff to show the existence of a triable issue of fact with respect to that cause of action or defense. ( Ibid ; see Aguilar v . Atlantic Richfield Co . (2001) 25 Cal.4th 826, 850-853 ( Aguilar ).) The plaintiff " 'may not rely upon the mere allegations or denials' of his 'pleadings to show that a triable issue of material fact exists but, instead,' must 'set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.' (Code Civ. Proc., § 437c, subd. ([p])(2).)" ( Aguilar , at p. 849.)

" ' "[W]e take the facts from the record that was before the trial court when it ruled on that motion," ' and ' " ' "review the trial court's decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained." ' " ' [Citations.] In addition, we ' "liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party." ' [Citation.]" ( Hughes v . Pair (2009) 46 Cal.4th 1035, 1039.)

"FEHA prohibits several employment practices relating to physical disabilities. First, it prohibits employers from refusing to hire, discharging, or otherwise discriminating against employees because of their physical disabilities. (§ 12940, subd. (a).) Second, it prohibits employers from failing to make reasonable accommodation for the known physical disabilities of employees. ( Id ., subd. (m).) Third, it prohibits them from failing to engage in a timely and good faith interactive process with employees to determine effective reasonable accommodations. ( Id ., subd. (n).) Fourth, it prohibits them from retaliating against employees for opposing practices forbidden by

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FEHA. (§ 12940, subd. (h).) Separate causes of action exist for each of these unlawful practices. [Citations.]" ( Nealy v . City of Santa Monica (2015) 234 Cal.App.4th 359, 371 ( Nealy ).)

In this case, Cervantes alleged causes of action under subdivisions (a), (m), and (h) of section 12490. We will address each of those causes of action in turn.

Cervantes contends the trial court erred when it granted summary adjudication in favor of SVB on his cause of action for wrongful termination in violation of the public policy against disability discrimination. (See § 12940, subd. (a).)

"California has adopted the three-stage burden-shifting test established by the United States Supreme Court for trying claims of discrimination . . . based on a theory of disparate treatment. [Citations.] [¶] This so-called McDonnell Douglas test [(see McDonnell Douglas Corp . v . Green (1973) 411 U.S. 792)] reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially. Thus, by successive steps of increasingly narrow focus, the test allows discrimination to be inferred from facts that create a reasonable likelihood of bias and are not satisfactorily explained." ( Guz v . Bechtel National , Inc .(2000) 24 Cal.4th 317, 354 ( Guz ), fn. omitted.)

To prove discrimination through circumstantial evidence, the employee must first make a prima facie case of discrimination. ( Guz , supra , 24 Cal.4th at pp. 354-355.) "A prima facie case of disability discrimination under FEHA requires the employee to show he or she (1) suffered from a disability, (2) was otherwise qualified to do his or her job, and (3) was subjected to adverse employment action because of the disability. [Citation.] Once the employee

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establishes his or her prima facie case, 'the burden then shifts to the employer to offer a legitimate, nondiscriminatory reason for the adverse employment action.' [Citation.] The employee may still defeat the employer's showing with evidence that the stated reason is pretextual, the employer acted with discriminatory animus, or other evidence permitting a reasonable trier of fact to conclude the employer intentionally discriminated. [Citation.]" ( Nealy , supra , 234 Cal.App.4th at p. 378; see Guz , at pp. 354-356.)

In its order granting SVB's motion for summary judgment, the trial court first addressed whether Cervantes had made a prima facie case of disability discrimination, stating that it was "noteworthy that [Cervantes] has been unable to point to a single negative remark about his diabetes or need for private space." The court further observed, however, that " 'the temporal proximity between an employee's disclosure of his symptoms and a subsequent termination' carries the 'fairly minimal' initial burden in a disability discrimination case, and that is so here—if barely. ( Arteaga v . Brink's , Inc . (2008) 163 Cal.App.4th 327, 353)"

Like the trial court, we will assume for argument's sake that appellant satisfied the "fairly minimal" initial burden and made a prima facie case of

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disability discrimination. ( Arteaga v . Brink's , Inc ., supra , 163 Cal.App.4th at p. 353 ( Arteaga ); see Nealy , supra , 234 Cal.App.4th at p. 378.)

Turning to the second step, whether SVB satisfied its burden of proffering evidence of a legitimate, nondiscriminatory reason for terminating Cervantes's employment, the trial court found that SVB provided evidence of "a business reorganization that eliminated [Cervantes's] job—what I find to be a legitimate, nondiscriminatory reason for his termination. [Citation.] [Cervantes] argues that he 'did not have any duplicative job duties'—strategy work—'at the time he was terminated' and his 'Director position was simply renamed to a Senior Manager position' and his boss 'hired a person who had the same job duties.' [SVB] replies that lack of need for [Cervantes] to do 'strategy' work and the ability of a lower-level employee to perform [his] duties both demonstrate that [he] was expendable. In other words, [SVB] was doing what our Supreme Court recognizes businesses may do: promoting efficiency. ( Guz , [ supra ,] 24 Cal.4th at [p.] 338 [employer's 'absolute right to eliminate' plaintiff's 'work unit'].)"

We agree with the trial court that SVB satisfied its burden of presenting evidence of a legitimate, nondiscriminatory reason for terminating Cervantes's employment. (See Nealy , supra , 234 Cal.App.4th at p. 378.)

The record is replete with evidence showing that SVB's marketing department underwent a major reorganization that began in January 2017, with the separation of marketing strategy—for which the MCM group was previously responsible—into another group led my Susheela Vasan. The MCM group then became responsible solely for marketing execution and delivery of marketing strategies.

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The evidence further shows that when Considine was hired as head of the MCM group in May 2017, he was asked to restructure the group as part of the overall reorganization. SVB presented evidence that by early June 2017, Considine was considering the elimination of Cervantes's position due to the overlap between his role before the reorganization and Vasan's new role. Then, on July 14, 2017, Considine prepared a draft business case document, proposing elimination of three high level MCM group positions, which included Cervantes's position, as well as those of the director of field marketing and the leader of digital marketing. The reasoning behind the proposed elimination of Cervantes's job, in which both Sandford and Draper—Considine's supervisor—concurred, was that the MCM group would be better served by a lower level senior manager who would work as a "coach/player," both managing a team and executing projects. The three high level employees, including Cervantes, were ultimately laid off in August 2017.

SVB's evidence regarding the major reorganization of the marketing department generally and the MCM group in particular, with some of the MCM group's responsibilities being shifted to the new marketing strategy group and no continuing need for Cervantes's director level position, plainly provided a legitimate, nondiscriminatory reason for Cervantes's layoff. (See Nealy , supra , 234 Cal.App.4th at p. 378; cf. Guz , supra , 24 Cal.4th at p. 338 [employer "had the absolute right to eliminate [employee's] work unit and to transfer the unit's responsibilities to another company entity"]; see also Veronese v . Lucasfilm Ltd . (2012) 212 Cal.App.4th 1, 24 ( Veronese ) ["under the law [the employer] was entitled to exercise [its] business judgment, without second guessing"].) The fact that two other high level MCM group employees were also terminated at the same time as part of the

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reorganization provides further evidence of the legitimate, nondiscriminatory basis for Cervantes's termination. (See Nealy , at p. 378.)

With respect to the third step, the trial court found that Cervantes had not satisfied his burden of showing that SVB's "reasons for his termination were pretextual, or to adduce other evidence of discriminatory motive" because Cervantes had merely "relie[d] on the unpersuasive arguments already made at the second step."

We likewise find that Cervantes has not satisfied his burden of showing that SVB's stated reasons for his termination were pretextual or that there is evidence permitting a reasonable trier of fact to find that SVB intentionally discriminated against him. (See Nealy , supra , 234 Cal.App.4th at p. 378.)

First, as to whether SVB used the reorganization of the marketing department as a pretext for Cervantes's termination, the evidence proffered by SVB shows that Considine began considering elimination of Cervantes's position before Cervantes expressed concern about the new office layout and made his request for a clean, private space to test his blood sugar and manage his diabetes on a daily basis. Evidence submitted by Cervantes shows that he first raised these concerns with Considine around mid-July 2017, after seeing the planned layout of the new office space. However, abundant evidence demonstrates that by then, Considine had been contemplating and discussing the plan for his layoff for over a month, based on the reorganization of the marketing department and the need to restructure the MCM group. (Cf. Arteaga , supra , 163 Cal.App.4th at pp. 334-

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335, 353 [temporal proximity of termination to employee's disclosure of disability did not prove pretext, especially where evidence showed that "the employer raised questions about the employee's performance before he disclosed his symptoms, and the subsequent termination was based on those performance issues"]; Morgan v . Regents of University of California (2000) 88 Cal.App.4th 52, 69-70 ["[e]ssential to a causal link" between protected activity and adverse employment action "is evidence that the employer was aware that the plaintiff had engaged in the protected activity"]; compare Moore v . Regents of University of California (2016) 248 Cal.App.4th 216, 238 ["the timing of events leading up to [employee's] termination could suggest that something other than simple restructuring was at play"].) The evidence also shows that neither Sandford nor Draper learned of Cervantes's reasonable accommodation request until August 2017, months after Considine had told them about the likely elimination of his position. (See Arteaga , at pp. 334-335, 353; Morgan , at pp. 69-70.)

Moreover, we find unconvincing Cervantes's argument that because he was no longer doing marketing strategy work at the time of his layoff, and that, therefore, the creation of the new marketing strategy group did not impact his role, he raised a triable issue of material fact regarding whether SVB's proffered explanation for his termination "is unworthy of credence." ( Batarse v . Service Employees International Union , Local 1000 (2012) 209 Cal.App.4th 820, 834.) Even assuming—contrary to both his job description and evidence from, among others, Draper, SVB's chief marketing officer—that Cervantes was doing little or no marketing strategy work by the time his position was eliminated, the evidence shows that a major reorganization of the marketing department was in progress, during which a new marketing strategy group had been split off from Cervantes's group. As Considine noted

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in his final business case document, "[w]ith the broader reorganization in January, a separate Marketing Strategy team was created to lead all the marketing strategy component previously managed by [Cervantes's] team. As a result, the remaining role is reduced in scope to focus on flawless . . . execution working in close concert with the Marketing Strategy team." The evidence thus shows that, regardless of whether Cervantes himself was doing marketing strategy work at the time of his termination, the team he led had been responsible for that work until the new marketing strategy group was formed.

For all of these reasons, Cervantes has not raised a triable issue of material fact regarding whether SVB used the marketing department reorganization as a pretext for his discriminatory termination. (See Guz , supra , 24 Cal.4th at p. 338; Veronese , supra , 212 Cal.App.4th at p. 24.)

As further evidence of pretext, Cervantes cites SVB's failure to follow its own established polices and procedures when Considine did not report Cervantes's reasonable accommodation request to the HR department. SVB's employee handbook states that employees who "would like to request a reasonable accommodation pursuant to [SVB's reasonable accommodation] policy should contact their HR Business Partner/HR Rep." In addition, the evidence shows that because Considine was new to SVB, he did not know who to contact about Cervantes's reasonable accommodation concerns and Cervantes therefore volunteered to find the HR or facilities person he needed to talk to. Cervantes's assistant then located Singh, who directed Cervantes to O'Connor, whose job it was to help him with his reasonable accommodation concerns. Although O'Connor stated during her deposition that when an employee makes a reasonable accommodation request to a supervisor, the supervisor is supposed to inform O'Connor of the request, the evidence

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showing why Considine did not contact O'Connor and why Cervantes did so instead plainly undercuts any showing of pretext. (Compare Moore v . Regents of University of California , supra , 248 Cal.App.4th at p. 239 ["[t]he record discloses evidence from which a reasonable fact finder could conclude that [the employee's supervisor] failed to follow [the employer's] stated procedures with respect to layoffs occurring during a restructuring when she not only eliminated [the employee's] position, but terminated [her] employment"].)

Cervantes also claims that other SVB employees told him that the job duties of Campbell, the new senior manager, were identical to his responsibilities as director of integrated marketing. Even assuming Cervantes's statement on this point constituted admissible evidence, rather than inadmissible hearsay and his own subjective opinion, we again observe that the evidence shows that SVB's determination that it would replace Cervantes's high level director position with a lower level manager was a reasonable business decision, based on a restructuring of the MCM group, not discrimination. (See Guz , supra , 24 Cal.4th at p. 338; Veronese , supra , 212 Cal.App.4th at pp. 21, 24.)

Finally, Cervantes's evidence that he was an exemplary employee does not undermine SVB's evidence of a legitimate business reason for his termination, given that his performance was not the reason for his layoff. Rather, as already discussed, the evidence shows that his position was

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eliminated due to a major reorganization that led to a restructuring of the department and that Considine, Sandford, and Draper did not believe he was well suited to the new senior manager position that would replace his director position. (See Guz , supra , 24 Cal.4th at p. 338; cf. Veronese , supra , 212 Cal.App.4th at p. 21 [" ' "While an employer's judgment or course of action may seem poor or erroneous to outsiders, the relevant question is . . . whether the given reason was a pretext for illegal discrimination" ' "].)

Because Cervantes has presented no evidence raising a triable issue of fact as to whether SVB's proffered evidence of legitimate business justifications for his termination was pretextual, we conclude the trial court properly granted summary adjudication on Cervantes's first cause of action for wrongful termination in violation of the public policy against disability discrimination. (See Aguilar , supra , 25 Cal.4th at p. 849; § 12940, subd. (a); Nealy , supra , 234 Cal.App.4th at pp. 354-356; see also Guz , supra , 24 Cal.4th at p. 363 [summary judgment is appropriate when, "given the strength of the employer's showing of innocent reasons, any countervailing circumstantial evidence of discriminatory motive, even if it may technically constitute a prima facie case, is too weak to raise a rational inference that discrimination occurred"].)

Cervantes contends the trial court erred when it granted summary adjudication in favor of SVB on his cause of action for disability discrimination—failure to provide reasonable accommodation. (See § 12940, subd. (m).)

In its order granting summary adjudication on Cervantes's cause of action for failure to provide reasonable accommodation, the trial court stated: "In this case, the evidence and logic regarding the disability discrimination

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claim also apply to the failure-to-accommodate claim. Moreover, no accommodation was needed until the new office space was occupied, which post-dated [Cervantes's] termination. And [Cervantes's] boss had no need to report his accommodation request, as [Cervantes] opted to work directly with the human resources department. [Citation.]"

"A reasonable accommodation is a modification or adjustment to the work environment that enables the employee to perform the essential functions of the job he or she holds or desires. [Citation.] FEHA requires employers to make reasonable accommodation for the known disability of an employee unless doing so would produce undue hardship to the employer's operation. (§ 12940, subd. (m).) The elements of a reasonable accommodation cause of action are (1) the employee suffered a disability, (2) the employee could perform the essential functions of the job with reasonable accommodation, and (3) the employer failed to reasonably accommodate the employee's disability. [Citations.]" ( Nealy , supra , 234 Cal.App.4th at p. 373.)

"Two principles underlie a cause of action for failure to provide a reasonable accommodation. First, the employee must request an accommodation. [Citation.] Second, the parties must engage in an interactive process regarding the requested accommodation and, if the process fails, responsibility for the failure rests with the party who failed to participate in good faith. [Citation.] While a claim of failure to accommodate is independent of a cause of action for failure to engage in an interactive dialogue, each necessarily implicates the other." ( Gelfo v . Lockheed Martin Corp . (2006) 140 Cal.App.4th 34, 54.)

Here, it is undisputed that Cervantes suffered from Type 1 diabetes and that he could have performed his job at the new office, with reasonable accommodation. Contrary to Cervantes's assertions, however, the evidence

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shows that SVB properly engaged in an interactive process with him to assist him with obtaining a reasonable accommodation. The process never resulted in such an accommodation only because Cervantes was laid off before the process was completed and before any accommodation would have been necessary. Hence, he has failed to raised a triable issue of fact as to whether SVB failed to reasonably accommodate his disability. (See Nealy , supra , 234 Cal.App.4th at p. 373.)

Cervantes nonetheless repeats his argument that "Considine, when learning of the request [for reasonable accommodation], did nothing . Considine failed to engage Cervantes in the interactive process," leaving Cervantes "to take action himself . . . ." Again, Cervantes volunteered to ascertain who in HR or facilities he should speak to about the issue. (See pt. II.A., ante .) Moreover, Cervantes and O'Connor discussed his situation and possible accommodations, with O'Connor ultimately asking Cervantes to speak to his doctor about his specific needs and to complete a questionnaire to help her better understand his restrictions. Cervantes said that he would be meeting with his doctor that week and would return the questionnaire after the appointment. O'Connor, who never heard back from Cervantes, only later learned that he had been laid off.

Hence, considering all of the evidence on this issue, we conclude the record does not support Cervantes's claim that "SVB failed in its statutory obligation to provide reasonable accommodation for Cervantes as it simply chose to terminate Cervantes rather than engage in the good faith interactive process." Because no triable issues of fact exist with respect to Cervantes's cause of action for failure to provide reasonable accommodation for his disability under subdivision (m) of section 12940, summary adjudication on that cause of action was properly granted. (See Aguilar , supra , 25 Cal.4th at

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p. 849; see also Nealy , supra , 234 Cal.App.4th at p. 373; Gelfo v . Lockheed Martin Corp ., supra , 140 Cal.App.4th at p. 54.)

Cervantes contends the trial court erred when it granted summary adjudication in favor of SVB on his cause of action for unlawful retaliatory discharge. (See § 12940, subd. (h).)

In its order, the trial court stated with respect to the cause of action for retaliation that "[Cervantes] claims he would not have been terminated had he not reported his diabetes and requested accommodations, but the evidence cited above establishes no causal link."

"[T]o establish a prima facie case of retaliation under the FEHA, a plaintiff must show (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. [Citation.]" ( Yanowitz v . L'Oreal USA , Inc . (2005) 36 Cal.4th 1028, 1042 ( Yanowitz ).)

FEHA makes it an unlawful employment practice for an 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." (§ 12940, subd. (h).) We will assume for purposes of Cervantes's retaliation claim that he made a prima facie case of retaliation by showing

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that he subjectively believed he was opposing prohibited conduct when he asked for a clean, private space to test his blood sugar. (See ibid ; Yanowitz , supra , 36 Cal.4th at p. 1046 [" 'The court will find opposing activity if the employee's comments, when read in their totality, oppose discrimination' "].)

In arguing that the court erred in granting summary adjudication on his retaliation cause of action, Cervantes focuses on the temporal proximity between his disclosure of the need for reasonable accommodation and Considine's business case document "where he first put into writing the plan to terminate Cervantes." As we have already discussed in addressing Cervantes's disability discrimination claim (see pt. II.A., ante ), even assuming Cervantes raised his need for reasonable accommodation before Considine prepared his updated business case document on July 14, 2017, the evidence shows that Considine had been contemplating and discussing Cervantes's anticipated layoff for more than a month, as part of the restructuring of the MCM group. (See Arteaga , supra , 163 Cal.App.4th at pp. 334-335, 353.)

Cervantes also points to the fact that he "was never offered a different, comparable position, or a demotion," asserting that this was sufficient to raise an inference of retaliation. Again, as already discussed (see pt. II.A., ante ), based on all of the evidence in the record, the only reasonable inference is that Cervantes's layoff was a result of SVB's legitimate business decision to replace his high level director position with a lower level manager role, due to the restructuring of the MCM group, and the determination that Cervantes was both overqualified and not well suited for the new position. (See Guz , supra , 24 Cal.4th at p. 338; Veronese , supra , 212 Cal.App.4th at pp. 21, 24.)

Because we conclude Cervantes has failed to raise a triable issue of fact regarding whether SVB retaliated against him for requesting a reasonable

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accommodation for his disability, the trial court properly granted summary adjudication on Cervantes's retaliatory discharge cause of action. (See Aguilar , supra , 25 Cal.4th at p. 849; see also § 12940, subd. (h); Yanowitz , supra , 36 Cal.4th at p. 1042.)

In the prayer for relief in his complaint, Cervantes included a request for punitive damages. Having concluded the trial court properly granted summary judgment on all three of the causes of action in Cervantes's complaint, we further conclude the court was correct in finding that "[w]ithout a surviving cause of action, the punitive damages prayer fails as well."

The judgment is affirmed. Costs on appeal are awarded to respondent SVB.

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/s/ _________
Kline, P.J.

We concur:

/s/ _________
Richman, J.

/s/ _________
Miller, J.