Tarek Eletr vs Matt Colquhoun et al

1 All claims are asserted against Adobe unless otherwise specified. 4

wrongful termination in violation of public policy; (7) failure to provide employment records upon request; and (8) failure to provide personnel records upon request.

On February 26, 2026, Adobe filed the instant motion for summary judgment, or in the alternative, summary adjudication. Plaintiff opposes the motion.

II. ADOBE’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

A. Legal Standard

1. General Burden of Proof on Summary Judgment

“A defendant seeking summary judgment [or adjudication] must show that at least one element of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action ... The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.” (Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72 [internal citations omitted].)

“The ‘tried and true’ way for defendants to meet their burden of proof on summary judgment motions is to present affirmative evidence (declarations, etc.) negating, as a matter of law, an essential element of plaintiff’s claim.” (Weil & Brown, Cal. Prac. Guide; Civ. Proc. Before Trial (The Rutter Group 2014) ¶ 10:241, p. 10-104, citing Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) “The moving party’s declaration and evidence will be strictly construed in determining whether they negate (disprove) an essential element of plaintiff’s claim ‘in order to resolve any evidentiary doubts or ambiguities in plaintiff’s (opposing party’s) favor.’” (Id., ¶ 10:241.20, p. 10-105, citing Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64.)

“Another way for a defendant to obtain summary judgment is to ‘show’ that an essential element of plaintiff’s claim cannot be established. Defendant does so by presenting evidence that plaintiff ‘does not possess and cannot reasonably obtain, needed evidence’ (because plaintiff must be allowed a reasonable opportunity to oppose the motion).” (Id., ¶ 10:242, p. 10-105, citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855.) “Such evidence usually consists of admissions by plaintiff following extensive discovery to the effect that he or she has discovered nothing to support an essential element of the cause of action.” (Id.)

2. Summary Judgment/Adjudication in Employment Discrimination Actions

In reviewing motions for summary judgment or adjudication in employment discrimination cases, California courts employ the burden-shifting formula articulated by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S 792. (King v. United Parcel Service (2007) 173 Cal.App.4th 426, 433, fn. 2; see also Scotch v. Art Institute of California (2009) 173 Cal.App.4th 173 Cal.App.4th 986, 1004.) Under McDonnell Douglas, the plaintiff bears the burden of establishing a prima facie case of discrimination, and

the burden then shifts to the employer to offer a legitimate, nondiscriminatory reason for the adverse employment action. (Mixon v. Fair Employment and Housing Commission (1992) 192 Cal.App.3d 1306, 1318.)

“A defendant employer’s motion for summary judgment slightly modifies the order or these [McDonnell Douglas] showings. [Citation.]” (Scotch, supra, 173 Cal.App.4th at 1005.) To prevail on its motion for summary judgment, the defendant employer “is required to show either that (1) plaintiff could not establish one of the [prima facie] elements of the FEHA claim, or (2) there was a legitimate, nondiscriminatory reason for the decision to terminate the plaintiff’s employment [or whatever other adverse employment action].” (Avila v.

Continental Airlines, Inc. (2000) 165 Cal.App.4th 1237, 1247 [internal citations omitted].) The elements for a discrimination claim based on the failure to hire are: (1) the plaintiff belongs to a protected category (racial minority, suffers from a disability, etc.); (2) the plaintiff applied and was qualified for a job which the employer was seeking applicants; (3) the plaintiff was rejected despite his or her qualifications; and (4) the position remained open and the employer continued to seek applicants from persons of plaintiff’s qualification. (McDonnell Douglas Corp., supra, 411 U.S. at 802.)

“If the employer has met its burden by showing a legitimate reason for its conduct, the employee must demonstrate a triable issue by producing substantial evidence that the employer’s stated reasons were untrue or pretextual, or that the employer acted with a discriminatory animus, such that a reasonable trier of fact could conclude that the employer engaged in intentional discrimination or other unlawful action.” (DeJung v. Superior Court (2008) 169 Cal.App.4th 533, 553 [internal citations omitted].) “Speculation cannot be regarded as substantial responsive evidence.” (Cucuzza v.

City of Santa Clara (2002) 104 Cal.App.4th 1031, 1038.) “Further, an inference of intentional discrimination cannot be drawn solely from evidence, if any, that the company lied about its reasons.” (Guz, supra, 24 Cal.4th at 360-361.) “[E]ven where the plaintiff has presented a legally sufficient prima facie case of discrimination, and has also adduced some evidence that the employer’s proffered innocent reasons are false, the fact finder is not necessarily entitled to find in the plaintiff’s favor.” (Id. at 361-362,) “For instance, an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer’s decision, if the plaintiff created only a weak issue of fact as to whether the employer’s reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred.” (Id. at 362.)

B. Analysis

1. Adobe’s Undisputed Material Facts

Adobe submits the following purportedly undisputed facts in support of its in support of their motion: Plaintiff was hired on March 23, 2018, as a Senior Services Sales Executive, a role in which he was responsible for supporting the company’s customers in the healthcare industry. (Adobe’s Undisputed Material Facts in Support of Motion for Summary Judgment/Adjudication (“UMF”), Nos. 1, 2.) In early 2022, Colquhoun (Managing Director, Verticals/Strategic Accounts) aided Gahren (then Head of Healthcare) in promoting Plaintiff from a P40 to a P50. (UMF No. 4.)

On May 10, 2022, an Adobe Strategic Account Director, Christina Browning, emailed Colquhoun and Gahren, giving feedback that Plaintiff’s use of all caps in emails was “unprofessional and somewhat rude.” (UMF No. 5.) Colquhoun responded “wth?!” to Gahren, who then responded, “I really have no answer for this. I don’t know why anyone would put that into all caps. I’m so tired of it though. Doesn’t matter what the size of the deal is, it’s just not acceptable.” (UMF No. 6.) On August 25, 2022, a Slalom employee partnering with Adobe on a deal for Centura Health emailed Adobe employees that her meeting with Plaintiff was “the least professional experience [she’s] had with Adobe in 15 years,” that he “did not join [a meeting] until 20 minutes into the meeting,” “joined with a very unprofessional tone” and her “hope would be that Adobe can provide more senior leadership” in future meetings. (UMF Nos. 7-9.)

On August 25, 2022, Adobe’s General Manager of Healthcare & Life Sciences, Tim Murdoch, emailed Colquhoun to “help here with Centura” because it “seems like we need some serious leadership.” (UMF No. 10.) In this email, Murdoch commented on the Shalom employee’s email, stating “I realize this is from the partner but even if half of it is true, it’s bad.” (UMF No. 11.) He then emailed Valerie Groneman, Head of Healthcare: “To be blunt, Tarek has pissed a lot of people off... [his] bedside manner has made us all look pretty bad.” (UMF No. 12.) That same day, Colquhoun removed Plaintiff as lead on the Shalom/Centura account. (UMF No. 14.)

In late August 2022, Colquhoun received feedback from Adobe partner PwC that Plaintiff was trying to block PwC out of a joint deal with AbbVie; Colquhoun was frustrated by this. (UMF No. 16, 17.) Groneman emailed Plaintiff on August 29, 2022 that he should “use the documents [she] attached [on Friday] and [her] notes on the original e-mail to make the updates to” a specific document” and he responded (copying Colquhoun): “Please be careful send[ing] emails like this, I welcomed you to the role but your first act does not be giving ordered that way [sic] and copying the SA team, does not look good for anybody.” (UMF Nos. 18, 19.) Colquhoun advised Groneman to “ignore for now” and that he was “not going to tolerate this behavior.” (UMF No. 20.)

On September 1, 2022, Colquhoun sent an email to Plaintiff stating that he believed Plaintiff “ha[s] been talking to the partners in [a] way that makes them feel confronted” because [b]oth PwC and Slalom have raised challenges working with [Plaintiff]” and he was hearing internal stakeholders complain about Plaintiff’s “tone and frustration” and that Plaintiff needs “to speak respectfully to all internal stakeholders, SA, ISS, GDC, Workfront folks etc etc.” (UMF Nos. 21, 22.)

On September 6, 2022, Maggie Pelletier, Adobe’s Head of Customer Success, emailed Groneman and Colquhoun to share that several Adobe employees had shared negative feedback with her about Plaintiff’s behavior and performance. (UMF Nos. 23-25.) The following week, Groneman emailed Plaintiff to ask where Adobe stood on pricing on a deal for AbbVie, to which Plaintiff responded, “By the way, I’m on top of my deals and don’t need baby sitting please.” (UMF No. 26, 27.) Kristen Petterson then emailed Groneman that the working relationship between her and Plaintiff “is not of mutual respect” and that “from [her] perspective [Plaintiff] has worn [UHG] relationships down and many of his contacts don’t like him.” (UMF No. 28.)

Petterson attached notes about working with Plaintiff wherein she wrote that her meetings with him were often cancelled, that he “has a tone in emails and verbally on calls with management of displeasure with me, demeaning to me, my ideas don’t matter etc.” 7

and that his “lack of respect for [her] experience and assistance” on team calls was leading to others in the organization lacking respect for her, too. (UMF Nos. 29, 30.) Groneman forwarded the email to Colquhoun on September 19, 2022 and subsequently spoke with him about her concerns that Plaintiff was not accepting her feedback. (UMF Nos. 31, 32.)

Colquhoun decided that he wanted to take Plaintiff off his accounts and terminate his employment based on the feedback he received from Adobe stakeholders and his perception that Plaintiff was refusing to accept feedback. (UMF Nos. 33, 34.) He emailed Kelly, detailing the “situation” with Plaintiff and recommending that Adobe take “immediate action to move [Plaintiff] off his accounts and out of his role as PSS.” (UMF No. 35.) Colquhoun opened a performance management case with Adobe’s Employee Resources Center (“ERC”) on September 22, stating his desire to terminate Plaintiff’s employment to ERC-assigned representative Kat Robertson. (UMF Nos. 36, 37.)

Plaintiff responded to Colquhoun’s email, writing that he “started to feel that there is a clear effort to drive me out of the position or Adobe in general.” (UMF Nos. 39, 155.) On September 29, 2022, ERC representative Mandeep Dhaliwal interviewed Plaintiff and ultimately concluded that his allegations did not rise to the level of a potential policy violation. (UMF No. 157.)

On October 14, 2022, Pettersen emailed Groneman expressing concerns over Plaintiff’s work, stating that the “process that [Plaintiff] created to incrementally number the SOWs is not sustainable or scalable” and had “created quite a mess on the UHG side and they are not happy.” (UMF Nos. 40, 41.) The following week, Colquhoun emailed Plaintiff a summary of their 2022 Q3 check-in conversation the prior week, writing that “while [Plaintiff] [is] delivering numbers, [he] [is] struggling to do so in a way that is consistent with Adobe values and capabilities” and there were “several incidents where your tone/language/disposition has been off putting to the stakeholders you are speaking to.” (UMF Nos. 42-44.)

Colquhoun continued that in Q4 “we need to see you displaying the following right away:” “Collaboration with Val Groneman . . . Collaboration with Client Partners . . . Collaboration with the license account teams across all your accounts ... Collaborating with partners . . .” (UMF No. 45.) Plaintiff did not accept the feedback and stated (in part) that he “see[s] a consistent actions either to make me leave the company on my own or you let me go, I hope I’m wrong. The fact that I have been in this business over 40 years and most likely older than most of your staff might making everybody uncomfortable.” (UMF Nos. 46, 158.)

Dhaliwal again interviewed Plaintiff on October 25, 2022, and then interview Colquhoun and Groneman on October 27 and November 3, respectively. (UMF Nos. 159-161.) On November 29, 2022, Dhaliwal closed her investigation, concluding that Plaintiff’s claims were not substantiated. (UMF No. 162.)

After discussing removing Plaintiff from the UHG account in early November, Colquhoun and Groneman received support to do so. (UMF Nos. 47-50.) Tim Murdoch requested that Colquhoun not assign Plaintiff to any healthcare accounts in the new fiscal year. (UMF No. 51.)

On November 30, 2022, Colquhoun emailed Plaintiff that he was “continuing to receive concerning feedback. Also, as we provide you feedback you are immediately defensive. You stand firm that you haven’t done anything wrong. You are making snippy comments and wishing us luck instead of trying to understand we have been providing feedback that you need to take to heart.” (UMF No. 52.) He then told Plaintiff that because “the current alignment is not working,” “we have decided to assign a new PSS for UHG for FY23.” (UMF No. 53.) Plaintiff responded, characterizing the criticisms as unfair, claimed it created a “very hostile 8

environment,” asserting management was “trying to make [him] look bad” by repeating generalized criticisms without concrete examples, and requesting that future discussions occur by email or be recorded. (See Adobe’s Evidence in Support of MSJ/MSA (“Adobe Evid.”), Exhibit 2 (Declaration of Matt Colquhoun (“Colquhoun Decl.”), Exhibit W attached thereto.) Colquhoun looped ERC and Dhaliwal back in to address Plaintiff’s renewed concerns. Dhaliwal met with Plaintiff on December 5, Colquhoun on December 6 and Groneman on December 7, and again concluded that Plaintiff’s claims were not substantiated. (UMF Nos. 164-167.)

A few days later, Colquhoun communicated to Robertson his desire to set a separation date for Plaintiff, explaining that Plaintiff was “not receptive to feedback,” that there was “a broad set of stakeholders who no longer want to work with him, including leadership of the Adobe Healthcare industry,” and that he and Groneman “have an important business to run and no longer have time to work with a resource that is not collaborative and not showing he is willing to change.” (UMF Nos. 56-58.) On December 9, 2022, Colquhoun informed Plaintiff that his employment would be terminated effective January 6, 2023. (UMF No. 59.)

2. Discrimination and Retaliation in Violation of FEHA (First and Third Causes of Action)

As stated above, Plaintiff alleges that his termination was substantially motivated by his age and his having complained to HR about his treatment by Kelly and Colquhoun. (FAC, ¶¶ 41, 64, 65.) The FEHA prohibits employment discrimination on the basis of “physical disability, mental disability [and] medical condition ... age ....” (Gov. Code, § 12940, subd. (a).) Adobe maintains that it is entitled to summary adjudication of this cause of action because:

Generally, a prima facie case of discrimination based on age requires a plaintiffemployee to establish the following: (1) at the time of the adverse employment action she was 40 years of age or older; (2) an adverse employment action was taken against the employee; (3) at the time of the adverse action the employee was satisfactorily performing his or her job; and (4) the employee was replaced in her position by a significantly younger person.2 (Hersent v. California Dept. of Social Services (1997) 57 Cal.App.4th 997, 1002-1003.)

Thus, in order to meet their initial burden on an employee’s age discrimination claim, an employer is required to show either that (1) the plaintiff cannot establish one of the foregoing prima facie elements, or (2) it had a legitimate, nondiscriminatory reason for the decision to terminate the plaintiff’s employment [or whatever other adverse employment action]. (See Avila v. Continental Airlines, Inc. (2000) 165 Cal.App.4th 1237, 1247 [internal citations omitted].)

“[I]n order to 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 [exists] between the protected

2 It should be noted that it is not necessary for Plaintiff to show that he was replaced by a younger worker; it is enough that persons significantly younger were retained in similar jobs, or reassigned to positions for which the plaintiff was also qualified, or were otherwise treated “more favorably.” (Guz v. Bechtel Nat’l, Inc. (2000) 24 Cal.4th 317, 366-367.) 9

activity and the employer’s action.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1018, 1042.) The causal link between protected activity and an employer’s action may be established by direct evidence of retaliatory motive, but can also be inferred from circumstantial evidence.” (Morgan v. Regents of University of California (2001) 88 Cal.App.4th 52, 69-70.) An inference of causation may be established from the employer’s knowledge that the employee engaged in protective activities and the proximity in time between the protected activity and the alleged retaliatory employment action. (Id.) Cases uniformly suggest that the lapse of time between the protected activity and the adverse employment action must be relatively short in order to support an inference of causation. (Loggins v. Kaiser Permanente (2007) 151 Cal.App.4th 1102, 1110, fn. 6.)

As with discrimination claims, the employer need only produce evidence that it had a legitimate, retaliatory reason for its conduct in order to meet its initial burden on a claim for retaliation under the FEHA. (Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 479; see also Unt. v. Aerospace Corp. (9th Cir. 1985) 765 F.2d 1440, 1447.) If it has done so, the burden shifts to the plaintiff to show that the employer’s proffered reason is a pretext for retaliation; this burden may be satisfied by either direct or circumstantial evidence. (Miller v.

Fairchild Indus., Inc. (9th Cir. 1989) 885 F.2d 498, 506; Fierros v. Texas Dept. of Health (5th Cir. 2001) 274 F.3d 187, 195.) However, circumstantial evidence of pretext must be both “specific” and “substantial.” (Bergene v. Salt River Project Agr. Imp. & Power Dist. (9th Cir. 2001) 272 F.3d 1136, 1142.) Timing alone (i.e., the existence of a short time-frame between the protected activity and the adverse action) cannot create the inference of pretext, though it can satisfy the plaintiff’s initial burden (prima facie case). (McRae v.

Department of Corrections & Rehab. (2006) 142 Cal.App.4th 377, 388.)

Here, Adobe takes both approaches, arguing that it is entitled to summary adjudication of Plaintiff’s claims for disability and retaliation under FEHA because (1) he cannot establish prima facie cases of age-based discrimination or retaliation, (2) it had legitimate, nondiscriminatory and non-retaliatory reasons for terminating his employment and (3) he cannot show pretext.

First, with respect to Plaintiff’s claim for age discrimination, Adobe submits evidence that Plaintiff was not performing satisfactorily at the time he was terminated, with these materials reflecting months of performance and conduct concerns raised by multiple Adobe stakeholders and external partners tied to Plaintiff’s accounts. (UMF Nos. 5-12, 14, 20-25, 28- 32, 34, 35.) This evidence also establishes that Plaintiff was advised of his need to perform his role in a manner that conformed to Adobe’s professional standards and expectations but seemingly did not accept the feedback he received such that the company ultimately made the decision to terminate his employment. This same evidence is offered by Adobe to establish, and does establish, that it had a legitimate, non-discriminatory reason for firing Plaintiff.

In opposition, Plaintiff does not substantively dispute the foregoing evidence, but asserts that he was a high performer and was replaced with a younger employee who did not excel in the role to the same level that he did. He emphasizes that he achieved 160% of his quota in fiscal year 2022, his final full year at Adobe and notes the promotion he received in February 2022 from P40 to P50, the highest internal designation in his PSS role. (See Plaintiff’s Additional Undisputed Material Facts in Support of Opposition to MSJ/MSA (“AMF”), Nos. 3-5, 7, 9.) He explains that in 2021, after he grew the Kaiser Permanent account into his biggest account, Adobe took it away from him and gave it to Kristen Pettersen, 10

a younger employee who was inexperienced and drove the revenue from that account to zero, prompting Adobe to return it to him in early 2022. (AMF Nos. 10-13.) He notes that he was required to split commissions with Pettersen on revenue he had earned for accounts Adobe added her to. (AMF No. 14.)

The problem for Plaintiff is that Adobe does not deny his performance metrics. Adobe’s position is that he was not terminated for missing quotas, but rather because he was not satisfactorily performing the collaborative and professional components of his role. Adobe has submitted ample evidence of this. Further, Ms. Pettersen was 63 years old when she was assigned some of Plaintiff’s accounts whereas he was 63 or 64 years; thus he was not replaced with a “significantly your” individual. There is “no basis to suspect a motive of prohibited bias” when a worker is replaced by a person who is “not significantly younger.” (Guz v.

Bechtel National, Inc. (2000) 24 Cal.4th 317, 366-367.) Thus, Plaintiff has not demonstrated a triable issue of material exists with respect to his performance in terms of collaboration and professionalism. As such, he has not shown that he can establish a prima facie case of discrimination. But even assuming he could, he runs into difficulty with establishing that Adobe’s stated reason for firing him is mere pretext to such discrimination.

Adobe submits that Plaintiff has no evidence of pretext, asserting that beyond his disagreement with Adobe’s view of his performance, the only evidence he has that his termination was due to his age is an anonymous blog post claiming that Adobe discriminates against older workers. In his opposition, Plaintiff suggests that pretext can be demonstrated by the following: Adobe took him off of certain accounts; remarks and LinkedIn posts were made regarding “new blood” and “fresh young people”; he was terminated shortly after his April 2022 complaint about Kelly’s interruptions; Plaintiff was not offered a Performance Improvement Plan (“PIP”); the ERC investigation was biased; and the complaints about his performance were solicited by Adobe in order to “build a case” against him.3 The Court does not find that any of the foregoing raise a triable issue in this regard.

First, as stated above, Plaintiff was not replaced with a significantly younger employee but rather essentially a peer. Second, Plaintiff offers nothing which undercuts Adobe’s proffered explanations for why Plaintiff was taken off of certain accounts, including a significant organization wide change in Adobe’s Customer Solutions Organization where Plaintiff worked which involved re-allocating accounts above a certain revenue threshold to Client Partners (“CPs”), a position at Adobe that typically sold smaller deals and otherwise managed the day-to-day aspects of customer relationships as compared to PSSs like Plaintiff who focused on upselling services to existing customers. (See Colquhoun Decl., ¶¶ 41-44, 54, 55 & Exhibit W.)

Third, no age-related marks are attributed to any of the decisionmakers, including Colquhoun, and Plaintiff admitted he did not know who wrote the anonymous blog post accusing Adobe of bias toward older employers or whether its assertions were true. (UMF Nos. 65-67.) Fourth, Plaintiff has not offered any evidence of age-related animus on the part of Colquhoun, which is especially notable in light of Adobe’s evidence that Colquhoun was instrumental in awarding Plaintiff his promotion in early 2022. (UMF No. 4.)

Fifth, Plaintiff, who was an at-will employee, identifies no Adobe policy which required a formal PIP, final

3 Plaintiff argues the Court should ignore the complaints made about him because the relevant complainants were not deposed. But as Adobe responds, it was Plaintiff who chose not to depose these witnesses, and he cannot use his own lack of diligence in this regard to argue that summary judgment should be denied. 11

written warning, or pre-termination hearing before termination for conduct and collaboration concerns. (See McGrory v. Applied Signal Tech., Inc. (2013) 212 Cal. App. 4th 1510, 1536 [plaintiff “cites no provision of his employment contract or employment law in general entitling an at-will employee to advance notice and a hearing before termination”].) Further, Adobe’s evidence establishes that Plaintiff was repeatedly informed of performance and conduct concerns through emails and discussions with management, including his 2022 Q3 Check-In. (UMF Nos. 21–22, 42–45, 52–53.)

Finally, while Plaintiff argues that the ERC investigations were “biased,” he offers nothing other than speculation in support of his contention, which is wholly insufficient. (See Cacuzza, supra, 104 Cal.App.4th at 1038 [stating that “[s]peculation cannot be regarded as substantial responsive evidence”]; see McGory v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510, 1537 [explaining that in order for the defendant’s alleged discriminatory motive and conduct to be a triable issue, the plaintiff would have to “substantiate his allegations with probative evidence that would permit a finding in his favor based on more than mere speculation, conjecture, or fantasy”].)

In sum, Plaintiff simply has not produced the requisite substantial evidence of pretext necessary to rebut Adobe’s showing that it had a legitimate, nondiscriminatory reason for terminating his employment. (See DeJung, supra, 169 Cal.App.4th at 553.) Consequently, Adobe is entitled to summary adjudication of the first cause of action.

The Court reaches the same conclusion on Plaintiff’s claim for retaliation under FEHA. Adobe’s evidence establishes that Colquhoun began receiving performance and collaboration concerns about Plaintiff in May 2022, and he spoke to ERC about terminating Plaintiff’s employment on September 22, 2022, three days before Plaintiff’s September 25, 2022 request for ERC intervention. This timeline undercuts any inference of a retaliatory motive.

In his opposition, Plaintiff attempts to make his April 2022 objection to Kelly’s interruptions the “protected activity” that caused the events that followed. (AMF Nos. 23-30.) But as Adobe responds, Plaintiff himself testified that Kelly did not reference his age, did not use profanity, did not call him names, and did not say anything he otherwise identified as unlawful. (UMF Nos. 70–78.) Plaintiff’s April 2022 text to Colquhoun said only that if Kelly “tells me to stop one more time I am going to HR.

This is the second meeting he does that.” (Adobe’s Evid. Ex. 1, Ex. A (Plaintiff’s Deposition) at 124:16-23; Adobe’s Evid. Ex. 2, Colquhoun Decl., Ex. Z.) The Court agrees with Adobe that this was not protected activity under FEHA because a complaint is protected under FEHA only if it opposes an employment practice prohibited by FEHA; “vague or conclusory remarks that fail to put the employer on notice are insufficient.” (Nejadian v. County of Los Angeles (2019) 40 Cal.App.5th 703, 724 (Nejadian).)

In his deposition, Plaintiff admitted that he never told Colquhoun that he thought Kelly’s behavior was because of his age and never told Colquhoun anything that would suggest he thought Kelly’s behavior was unlawful as opposed to merely inappropriate.

Plaintiff also references his September 25 and October 20 complaints, but Adobe’s evidence shows that the termination process was instituted before those complaints. A decisionmaker cannot retaliate based on protected activity that post-dates the relevant employment decision. (See Nejadian, supra, 40 Cal.App.5th at 724, fn. 17.) And as with the discrimination claim, Plaintiff fails to demonstrate that Adobe’s stated reasons for terminating his employment were pretextual.

Because Adobe has met its initial burden on these claims and Plaintiff has not demonstrated the existence of a triable issue, Adobe’s request for summary adjudication of the first and third causes of action is GRANTED.

3. Retaliation in Violation of Labor Code § 1102.5 (Fifth Cause of Action)

In the fifth cause of action, Plaintiff alleges that Adobe violated Labor Code section 1102.5 (“Section 1102.5”) because after he complained of certain illegal practices by the defendants, Adobe retaliated against him by terminating his employment. (FAC, ¶¶ 86-87.)

Section 1102.5 prohibits an employer from preventing an employee’s disclosure of information to a governmental agency. It is a whistleblower statute, the purpose of which is to encourage workplace whistleblowers to report unlawful acts without fearing retaliation. (See Soukop v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 287.) More specifically, it prohibits an employer from retaliating against an employee for sharing information the employee “has reasonable cause to believe ... discloses a violation of state or federal statute” or of “a local, state, or federal rule or regulation” with a government agency, with a person with authority over the employee, or with another employee who has authority to investigate or correct the violation. (Lab. Code, § 1102.5, subd. (b).)

Labor Code section 1102.6 (“Section 1102.6”), which is part of the same statutory scheme, provides that once an employee-whistleblower establishes by a preponderance of the evidence that retaliation was a contributing factor in the employee’s termination, demotion, or other adverse action, the employer bears the burden of demonstrating by clear and convincing evidence that it would have taken the same action for legitimate, independent reasons.

When Section 1102.5 was first enacted in 1984, the statute was devoid of any provision setting forth procedures for proving retaliation. In order to effectuate the substantive protections of the statutes, courts in Section 1102.5 cases, as courts in employment discrimination and retaliation cases under the Fair Employment and Housing Act had done, generally adopted the three-part burden-shifting framework laid out in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, which was itself established for trying claims of intentional discrimination based on circumstantial rather than direct evidence. (See Morgan v.

Regents of University of California (2000) 88 Cal.App.4th 52, 67-69; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354.) Courts who applied McDonnell Douglas on Section 1102.5 retaliation cases described the framework thusly: first, a plaintiff must establish a prima facie case of retaliation (i.e., she engaged in protected activity, she was thereafter subjected to adverse employment action by her employer, and there was a causal link between the two); second, if the plaintiff establishes a prima facie case, the burden of production shifts to the employer to come forward with evidence of a “legitimate nondiscriminatory reason for the adverse employment action”; and third,, if the employer produces substantial evidence of a legitimate nondiscriminatory reason, then the plaintiff bears the burden of proving the reason was a pretext for impermissible retaliation. (Morgan, supra, 88 Cal.App.4th at 68-69.)

However, the Courts of Appeal did not follow a consistent practice concerning the evidentiary standard applied to Section 1102.5 retaliation claims, resulting in evaluation of the issue by California’s high court in Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703.

In Lawson, the Supreme Court ultimately held that Section 1102.6 provides the governing framework for analyzing whistleblower retaliation claims brought under Section 1102.5. It “places the burden on the plaintiff to establish, by a preponderance of the evidence, that retaliation for an employee’s protected activities was a contributing factor in a contested employment action. The plaintiff need not satisfy McDonnell Douglas in order to discharge this burden. Once the plaintiff has made the required showing, the burden shifts to the employer to demonstrate, by clear and convincing evidence, that it would have taken the action in question for legitimate, independent reasons even had the plaintiff not engaged in protected activity.” (Lawson, 12 Cal.5th at 718.)

With the foregoing in mind, Adobe asserts that it is entitled to summary adjudication of this claim because Plaintiff cannot establish a prima facie case of retaliation under Section 1102.5 because he cannot show a causal link between his protected activity and his termination. The Court agrees.

To prevail on a claim under Section 1102.5, a plaintiff must show “that he engaged in protected activity ..., that he was subjected to adverse employment action by his employer, and that there was a causal link between the [protected activity] and the adverse action.” (City of Whittier v. Everest National Ins. Co. (2023) 97 Cal.App.5th 895, 907, internal citations and quotations omitted.) This claim does not differ substantively from Plaintiff’s retaliation claim under FEHA. As the Court has already determined that Adobe is entitled to summary adjudication of that claim for the reasons articulated above, and Plaintiff has not demonstrated the existence of a triable issue of material fact, Adobe’s request for summary adjudication of the fifth cause of action is GRANTED.

4. Harassment in Violation of FEHA (Second Cause of Action)

In the second cause of action, Plaintiff alleges that he was subjected to severe and pervasive harassment by Defendants because of his age. (FAC, ¶ 51.) To establish a prima facie case of unlawful harassment under FEHA, a plaintiff must show: (1) he was a member of a protected class; (2) he was subjected to unwelcome ... harassment; (3) the harassment was based on [the plaintiff's membership in an enumerated class]; (4) the harassment unreasonably interfered with his work performance by creating an intimidating, hostile, or offensive work environment; and (5) the defendant is liable for the harassment. (Thompson v.

City of Monrovia (2010) 186 Cal.App.4th 860, 876 (Thompson).) “Harassment, which may be verbal, physical, or visual and communicates an offensive message to the harassed employee, cannot be occasional, isolated, sporadic, or trivial; rather the plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature. Whether the harassment is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive environment must be assessed from the perspective of a reasonable person belonging to the racial or ethnic group of the plaintiff.” (Id. at 877.)

Adobe maintains that summary adjudication of this claim in its favor is warranted because neither of the incidents Plaintiff characterizes as harassment- two team calls with Kelly in which Kelly interrupted him and the negative feedback and account decisions by Colquhoun- do not so qualify. With respect to the incidents with Kelly, Adobe persuasively argues that Plaintiff cannot transform brief, facially neutral workplace friction into actionable harassment, which requires a “concerted pattern of harassment of a repeated, routine or a 14

generalized nature. (Thompson, supra, 186 Cal.App.4th at 876; see Jones v. Dept. of Corrs. & Rehab. (2007) 152 Cal.App.4th 1367, 1377.) There was also no reference to Plaintiff’s age or any other protected characteristic, nor any use of profanity or derogatory language and Adobe submits evidence that Kelly was not even aware of Plaintiff’s age at the time of the meetings. (See Declaration of Christopher Kelly in Support of Adobe’s MSJ/MSA, ¶ 6.)

As for Colquhoun, the Court agrees with Adobe that based on the evidence presented, his actions represent “personnel management actions” (i.e., “conduct of a type necessary for management of the employer’s business or performance of the supervisory employee’s job”) that fall outside the meaning of “harassment” under FEHA unless carried out in an unusually demeaning manner. (Janken v. GM Hughes Elecs. (1996) 46 Cal.App.4th 55, 63-64.) Per Adobe’s evidence, Colquhoun’s role necessarily required him to provide feedback and manage account coverage across the team, and the concerns regarding Plaintiff’s professionalism and collaboration did not originate only with Colquhoun.

Further, the feedback provided by Colquhoun was facially neutral, and Plaintiff offers nothing to suggest that Colquhoun’s treatment towards him was motivated by age-related animus other than speculation. Plaintiff simply fails to show the existence of a triable issue of material facts as to him suffering harassment based on his age.

Given the foregoing, Adobe’s request for summary adjudication of the second cause of action is GRANTED.

5. Failure to Prevent Discrimination and Wrongful Termination (Fourth and Sixth Causes of Action)

Plaintiff’s fourth and sixth causes of action are derivative of the preceding claims. Specifically, a claim for failure to prevent discrimination/harassment necessarily depends upon establishing that discrimination/harassment occurred in the first place. Under FEHA, an employer has an obligation to “take all reasonable steps necessary to prevent discrimination and harassment from occurring.” (See Gov. Code §12940, subd. (k).) A prerequisite to a finding of liability for the failure to take all reasonable steps, however, is a finding that the plaintiff actually suffered unlawful discrimination, harassment, or retaliation. (See Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 282 – 283; see also Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1021.)

Where a tort claim for wrongful discharge is based on the antidiscrimination/harassment policy embodied in the FEHA, the tort claim is essentially derivative of any underlying FEHA cause of action alleged in the complaint. Consequently, if a FEHA cause of action is found to lack merit, it necessarily follows that the tort claim for wrongful discharge also lacks merit. (See Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 229; see also Le Bourgeois v. Fireplace Mfg. (1998) 68 Cal.App.4th 1049, 1060, fn. 14.)

As the Court has concluded that Adobe is entitled to summary adjudication of Plaintiff’s claims for discrimination, harassment and retaliation, it follows that Adobe is also entitled to summary adjudication of the derivative claims. Therefore, Adobe’s request for summary adjudication of the fourth and sixth causes of action is GRANTED.

6. Failure to Provide Personnel and Pay Records (Seventh and Eighth Causes of Action)

In the seventh and eighth causes of action, Plaintiff alleges that Adobe violated Labor Code sections 226 and 1198.5 by failing to provide his payroll and personnel records upon his request. (FAC, ¶¶ 110, 115.) Labor Code section 226, subdivision (b), provides that an employer “shall afford current and former employees the right to inspect or receive a copy of records pertaining to their employment [i.e., wage statements], upon reasonable request to the employer,” while Labor Code section 1198.5 reserves for every employee the right to “inspect and receive a copy of [his] personnel records that the employer maintains relating to the employee’s performance ... “ (Lab. Code, § 1198.5, subd. (a)(1).)

Plaintiff alleges that he requested the aforementioned records on December 22, 2022 and March 9, 2023, but Adobe failed to provide them within the statutorily mandated timeframe. Abode meets its initial burden on these claims by submitting evidence that it has no record of having ever received such requests and that Plaintiff himself testified as to having “no idea” as to whether the requests were sent. (UMF Nos. 353-363.) Adobe notes that while Plaintiff produced letters requesting the subject records in discovery, no evidence was submitted that they were actually sent to Adobe, including proofs of service or testimony from anyone with personal knowledge of transmission.

In his opposition, Plaintiff fails to raise a triable issue of material fact in this regard, offering no evidence to rebut Abode’s showing that it never received requests triggering obligations under Labor Code sections 226 and 1198.5. At most, the evidence Plaintiff proffers shows that letters were drafted, but not sent. Consequently, Abode’s request for summary adjudication of the seventh and eighth causes of action is GRANTED.

Because the Court has concluded that Adobe is entitled to summary adjudication of each of the claims asserted against it in Plaintiff’s FAC, its motion for summary judgment is GRANTED.

The Court will prepare the final order.4

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4 Although Adobe has submitted a proposed order, “[p]roposed orders may not be submitted with moving papers before a hearing on a regularly noticed motion[.]”].) (See Local Civil Rule 8.B.)

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