Full opinion text
ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT MARGARET M. MORROW, District Judge. On October 6, 2011, Neva Day filed this action against Sears Holdings Corporation, Sears Holdings Management Corporation, Sears, Roebuck & Co., Sears Outlet Stores, LLC, and certain fictitious defendants. Day pled eleven causes of action: (1) gender discrimination in violation of the Fair Employment and Housing Act (“FEHA”); (2) gender discrimination in violation of public policy; (3) retaliation for complaints of gender discrimination in violation of FEHA; (4) retaliation for complaints of gender discrimination in violation of public policy; (5) retaliation for complaints of sexual harassment in violation of FEHA; (6) retaliation for complaints of sexual harassment in violation of public policy; (7) -wrongful termination in violation of public policy based on complaints of health and/or safety; (8) violation of California Labor Code § 232.5; (9) wrongful termination in violation of public policy based on violation of Labor Code § 232.5; (10) failure to take reasonably necessary steps to prevent discrimination, harassment, and retaliation in violation of FEHA; and (11) failure to take immediate appropriate action to stop unlawful harassment. The action was removed to this court on November 1, 2011. On October 19, 2012, defendants filed a motion for summary judgment on all of Day’s claims or alternatively, partial summary judgment. Day opposes defendants’ motion. I. BACKGROUND Day was a regional sales director for Sears Outlet from approximately June 2009 to October 4, 2010. Sears Outlet president Jamie Brooks made the decision to hire Day. At all relevant times, Day reported to Brooks and was directly supervised by Vance Rea, the national sales director for Sears Outlet. A. The Grant Investigation On August 18, 2010, Day spoke to Rea concerning issues she had with Mark Grant, the national training manager for Sears Outlet. Day told Rea that Gregory Wold, a district manager for Sears Outlet, had complained about Grant’s behavior. According to Wold, Grant made repeated remarks to him regarding women’s bodies and Grant’s extramarital affairs. Day also conveyed to Rea reports that Grant and Casey Calderwood, another upper-level manager at Sears Outlet, had driven while intoxicated during a business trip. As national sales director, it was Rea’s responsibility to conduct an initial investigation regarding complaints and determine whether they merited the initiation of a formal human resources investigation. Rea asked that Day obtain a written statement from Wold; instead of doing so, Day herself prepared and sent a written statement to Rea on August 25, 2010. Day’s statement described observations and reports of Grant’s inappropriate behavior, including “picking up women” and “excessive drinking” while on business trips. Rea gave Day’s email to Chris Jemo, a human resources officer. He also sent Day an email, in which he advised that the company was investigating the matters she reported, and that because all company investigations were confidential, she should not discuss the investigation or the subject of the allegations with anyone else. After receiving Day’s email, Jemo began a formal human resources investigation concerning the complaints against Grant. On August 30, 2010, Jemo and Day met in Denver, Colorado, where Jemo was conducting an unrelated sexual harassment investigation. At the meeting, Jemo requested additional, more specific details regarding Day’s complaints. On September 10, 2010, Day sent Jemo an email with additional information. Jemo responded, stating that the information still lacked specifics, and that Day needed to provide “details around name[s] of associates,” and a “paragraph by paragraph” breakdown that identified which employees had made which complaints. Jemo stated that Day was “interfering in a company investigation” by not providing the details he requested. He also reminded Day that the investigation was confidential and should not be discussed with anyone other than Jemo and Rea. On September 16, 2010, Jemo interviewed Day in person concerning the Grant investigation. Between September 22 and 30, Jemo interviewed thirteen other witnesses, including Wold, Rea, and Grant. Jemo ultimately concluded that Grant had acted unprofessionally and prepared a Documentation of Performance Issues warning. Grant was required to demonstrate improvement in four general categories: “Professional Demeanor;” “Interaction with Female Associates;” “Professional Language and Subjects;” and “Behavior Away from the Store.” The warning was signed by both Grant and Rea. B. The Day Investigation On September 1, 2010, while the Grant investigation was ongoing, Day had a conversation with Margaret Lawless, the Director of Soft-Lines for Sears Outlet. Day told Lawless she was concerned with Rea’s handling of her complaint, and questioned his integrity and trustworthiness. Day asserts she specifically said she could, not provide names or details regarding her complaint because there was an ongoing investigation. Following this conversation, Lawless advised Brooks that Day had initiated a conversation with her regarding a human resources investigation. Brooks instructed Lawless to advise Rea that Day had expressed concerns. On September 9, at Rea’s request, Lawless prepared a written statement detailing the conversation that took place between her and Day. In her report, Lawless stated that Day asked whether she knew of the statement Day had given Rea regarding “an individual.” Lawless stated that Day expressed frustration with the fact that her complaint had been given to human resources despite her wish that it remain confidential. Although Day did not identify the individuals whose complaints she relayed, she did remind Lawless of a business meeting they had had in Texas in which Grant and Calderwood rented a car and drove around to “experience the night life in Dallas.” Jemo subsequently opened an investigation to determine whether Day had breached defendants’ policy that human resources investigations are confidential by speaking with Lawless. On September 16, 2010, Jemo and a witness interviewed Day regarding the Grant investigation. At both the beginning and the end of the interview, Jemo reminded Day to maintain confidentiality with respect to the investigation. During the interview, Day was asked whether she had talked with anyone regarding the Grant investigation; Day did not state that she had spoken with Lawless. On September 20, 2010, Day was again interviewed by Jemo, as well as by Don Strand, a regional human resources director, and Pamela Fowler, director of human resources consultants for Sears Holdings Management Corp. During this interview, Day signed an “Associate Acknowledgment” form, which stated that “[associates who breach confidentiality are subject to disciplinary action, up to and including termination.” Day was again asked on September 20 whether she had spoken with anyone regarding the Grant investigation. She once again did not report that she had spoken with Lawless; it was not until later in the interview, after the questioners had moved on to a new topic, that Day volunteered that she had spoken with Lawless. On September 80, 2010, William O’Malley, director of corporate investigations, was asked to conduct independent interviews concerning whether Day had breached defendants’ confidentiality policy. O’Malley concluded that she had, and reported his findings to Fowler and Brooks. On October 4, 2010, following completion of the Day investigation, Brooks and Fowler advised Day that they were terminating her employment because she had violated defendants’ confidentiality policy. Susan Leach, vice president of human resources operations, reviewed the termination decision and the evidence supporting it and concluded that Day’s termination was consistent with company policy and was warranted. II. DISCUSSION A. Legal Standard Governing Motions for Summary Judgment A motion for summary judgment must be granted when “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R.Civ.Proc. 56(c). A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (“[T]he substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.... [SJummary judgment will not lie if the dispute about a material fact is ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party”). Where the moving party will have the burden of proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. On an issue as to which the nonmoving party will have the burden of proof, however, the movant can prevail merely by pointing out that there is an absence of evidence to support the nonmoving party’s case. See Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548. If the moving party meets its initial burden, the nonmoving party must set forth, by affidavit or as otherwise provided in Rule 56, “specific facts showing that there is a genuine issue for trial.” Liberty Lobby, 477 U.S. at 250, 106 S.Ct. 2505; Fed.R. Civ. Proc. 56(e)(2). Evidence presented by the parties at the summary judgment stage must be admissible. Fed.R.Civ.Proc. 56(e)(1). In reviewing the record, the court does not make credibility determinations or weigh conflicting evidence. Rather, it draws all inferences in the light most favorable to the nonmoving party. See T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630-31 (9th Cir.1987). Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment. See Falls Riverway Realty, Inc. v. Niagara Falls, 754 F.2d 49, 56 (2d Cir.1985); Thornhill Pub. Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir.1979). B. Whether Defendants Are Entitled to Summary Judgment on Day’s First and Second Claims for Relief Defendants seek summary judgment on Day’s first and second claims, which alleges gender discrimination and wrongful termination in violation of public policy. 1. Legal Standard Governing FEHA Actions FEHA prohibits employers from discriminating against employees on various bases, including gender. Cal. Gov’t Code § 12940(a). In evaluating discrimination claims under FEHA, California courts look to federal precedent governing analogous federal discrimination laws. See Guz v. Bechtel National, Inc., 24 Cal.4th 317, 354, 100 Cal.Rptr.2d 352, 8 P.3d 1089 (2000) (“Because of the similarity between state and federal employment discrimination laws, California courts look to pertinent federal precedent when applying our own statutes.... In particular, 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 omitted)); Caldwell v. Paramount Unified School District, 41 Cal.App.4th 189, 195, 48 Cal. Rptr.2d 448 (1995); Mixon v. Fair Employment & Housing Comm., 192 Cal. App.3d 1306, 1317, 237 Cal.Rptr. 884 (1987). Accordingly, under FEHA, a plaintiff may establish a prima facie case of discrimination either by adducing direct evidence of discriminatory intent, or by satisfying the first prong of the burden-shifting test outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Vasquez v. County of Los Angeles, 349 F.3d 634, 640 (9th Cir.2004) (“For a prima facie case, Vasquez must offer evidence that ‘give[s] rise to an inference of unlawful discrimination,’ either through the framework set forth in McDonnell Douglas Corp. v. Green or with direct or circumstantial evidence of discriminatory intent”); Guz, 24 Cal.4th at 354, 100 Cal.Rptr.2d 352, 8 P.3d 1089 (“This so-called McDonnell Douglas test reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially”). In McDonnell Douglas Corp., the Supreme Court held that plaintiff bears the initial burden of establishing by a preponderance of the evidence a prima facie case of improper discrimination. If plaintiff succeeds in proving a prima facie case, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the employment action. Should defendant carry this burden of production, the burden of proof shifts back to the plaintiff to demonstrate that defendant’s asserted reason is pretextual. McDonnell Douglas Corp., 411 U.S. at 802, 804, 93 S.Ct. 1817. See also St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Thus, a plaintiff seeking to defeat summary judgment must establish a prima facie case and, once defendant has articulated a legitimate, nondiscriminatory reason for its action, raise triable issues of fact as to whether the articulated reason is pretextual. Sischo-Nownejad v. Merced Community College District, 934 F.2d 1104, 1110 (9th Cir.1991); see also Nidds v. Schindler Elevator Corp., 113 F.3d 912, 917-918 (9th Cir.1997) (“[t]o ... survive summary judgment, [plaintiff] must produce enough evidence to allow a reasonable factfinder to conclude either: (a) that the alleged reason for [plaintiffs] discharge was false, or (b) that the true reason for his discharge was a discriminatory one”). 2. Whether Day Has Established a Prima Facie Case of Gender Discrimination “To establish a prima facie case, a plaintiff must offer evidence that ‘give[s] rise to an inference of unlawful discrimination.’ ... ‘The prima facie case may be based either on a presumption arising from the factors such as those set forth in McDonnell Douglas ..., or by more direct evidence of discriminatory intent’ ” Cordova v. State Farm Ins. Cos., 124 F.3d 1145, 1148 (9th Cir.1997) (quoting Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994)). “The specific elements of a prima facie case may vary depending on the particular facts.” Guz, 24 Cal.4th at 355, 100 Cal.Rptr.2d 352, 8 P.3d 1089 (citing Burdine, 450 U.S. at 253 n. 6, 101 S.Ct. 1089). “Generally, the plaintiff must provide evidence that (1) [s]he was a member of a protected class, (2) [s]he was qualified for the position [s]he sought or was performing competently in the position [s]he held, (3) [s]he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive,” e.g., similarly-situated individuals outside her protected class were treated more favorably. Guz, 24 Cal.4th at 355, 100 Cal.Rptr.2d 352, 8 P.3d 1089. A plaintiff also “must prove by a preponderance of the evidence that there was a ‘causal connection’ between [her] protected status and the adverse employment decision.” Mixon v. Fair Employment & Housing Comm’n, 192 Cal.App.3d 1306, 1319, 237 Cal.Rptr. 884 (1987). There is no doubt that Day was a member of a protected class, and that she suffered an adverse employment action. There is also no dispute that Day was performing her job adequately. Defendants argue, however, that there is no evidence of discriminatory motive and no causal connection between Day’s protected status and their decision to terminate her employment. Day counters that she has raise an inference of discriminatory motive by adducing evidence that defendants fostered a “boys’ club” working atmosphere that led to her termination. Defendants assert that Brooks was responsible both for hiring and firing Day, and thus there is a strong inference that the decision to fire her was not based on her gender. “[W]here the same actor is responsible for both the hiring and the firing of a discrimination plaintiff, and both actions occur within a short period of time, a strong inference arises that there was no discriminatory motive.” Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270-271 (9th Cir.1996); see also Coghlan v. American Seafoods Co. LLC, 413 F.3d 1090, 1096 (9th Cir.2005) (“[A]n employer’s initial willingness to hire the employee-plaintiff is strong evidence that the employer is not biased against the protected class to which the employee belongs”); Buhrmaster v. Overnite Transp. Co., 61 F.3d 461, 464 (6th Cir.1995) (“An individual who is willing to hire and promote a person of a certain class is unlikely to fire them simply because they are a member of that class”). Brooks hired Day in June 2009, and, less than a year and a half later, along with Fowler, Brooks decided to terminate her. A period of a year and a half qualifies as a “short period of time.” See Coleman v. Quaker Oats Co., 232 F.3d 1271, 1286 (9th Cir.2000) (taking the same-actor inference into account where a manager created a new position for an employee more than a year prior to his layoff); Schnabel v. Abramson, 232 F.3d 83, 91 (2d Cir.2000) (affirming summary judgment in an employment discrimination case based in part on the fact that the plaintiff “was fired by the same man who had hired him three years earlier”). There is thus a strong inference that Brooks decision to terminate Day was not based on her gender. This inference can be overcome, however, if Day provides “meaningful evidence that her supervisor harbored discriminatory animus,” Johnson v. Boys and Girls Clubs of South Puget Sound, 191 Fed.Appx. 541, 545 (9th Cir.2006) (Unpub. Disp.), or “evidence suggesting that [the defendants] developed a bias against [the protected class]” during the interval between the hiring and firing decisions, Coghlan, 413 F.3d at 1097. At her deposition, Day admitted that she did not believe she was ever denied promotions or benefits due to her gender; that no one made gender-based statements in her presence that she felt were inappropriate; and. that she never received any documents or writings that contained derogatory statements about her gender. Her primary evidence of discriminatory animus is evidence that defendants fostered a “boys’ club” atmosphere, where men were generally treated more favorably than women. Although she does not expressly say so, Day appears to rely on a disparate treatment theory to show that defendants acted with discriminatory intent. “Disparate treatment occurs when a plaintiff is singled out on account of her race or another protected characteristic and is treated less favorably than others similarly situated.” Lelaind v. City and County of San Francisco, 576 F.Supp.2d 1079, 1091 (N.D.Cal.2008) (citing Cornwell v. Electra Central Credit Union, 439 F.3d 1018, 1028 (9th Cir.2006)); see also Twymon v. Wells Fargo & Co., 462 F.3d 925, 936 (8th Cir. 2006) (“Contrasting the treatment of similarly situated employees outside of the protected class with the employee’s treatment is one way to point towards a race-based motivation”); McGuinness v. Lincoln Hall, 263 F.3d 49, 53 (2d Cir.2001) (in a race discrimination case, “[a] showing that the employer treated a similarly situated employee differently is ‘a common and especially effective method’ of establishing a prima facie case of discrimination”); Solano v. Regents of University of California, No. S-04-0357 FCD/PAN, 2005 WL 1984473, *4 (E.D.Cal. Aug. 15, 2005) (“To establish a prima facie case of race discrimination, plaintiff must prove ... the employer treated similarly situated individuals who are not in her protected class more favorably”). In employment discrimination cases, employees are similarly situated to a plaintiff if they perform similar work responsibilities or are guilty of similar misconduct. See Meaux v. Northwest Airlines, Inc., 718 F.Supp.2d 1081, 1090-91 (N.D.Cal.2010) (“Plaintiff also argues that he was treated differently than a similarly situated Caucasian flight attendant to whom the Court will refer as Doe. However, Plaintiffs and Doe’s conduct are not comparable.... Doe did not threaten the passenger or write to his employer. When discussing the incident with his supervisor, Doe acknowledged fault, whereas Plaintiff failed to accept any responsibility for his conduct”); Solano, 2005 WL 1984473 at *4 (“[P]laintiff has established a prima facie claim of disparate treatment between herself and others similarly situated. Specifically, Solano produced evidence that no other employees have been subject to comparably severe discipline for similar misconduct. She identified non-Latina employees in the Accounting and Financial Services department who submitted fraudulent travel vouchers to the University and were not subject to any discipline”); Smith v. Safeway Corp., No. C 98-3277 SI, 1999 WL 778202, *4 (N.D.Cal. Sept. 27, 1999) (“Smith[, a white female,] argues that some employees were terminated while others were suspended or given written warnings. Smith points to employees Andy Yee and Gary Puno, both Asian American men, who were not terminated by Safeway. However, Smith fails to note that Safeway’s investigator concluded that Yee and Puno had not engaged in the type of consistent violations of store policy than Smith had, and she has failed to produce evidence to the contrary. She also does not acknowledge that three additional employees who were investigated, but not terminated, were white (males). More importantly, Smith fails to note that the two other employees ... who were terminated with her, and for the same reason, are black/Latino male and white male, respectively. These facts are inconsistent with Smith’s claim that she was disciplined differently than similarly situated employees solely because of her sex or race”). Courts “require that the quantity and quality of the comparator’s misconduct be nearly identical to prevent courts from second-guessing employers’ reasonable decisions and confusing apples with oranges.” Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir.1999) Day asserts that, during the course of the Grant investigation, male employees also breached the policy regarding the confidentiality of company investigations, but faced no adverse employment action as a result. She contends that she, by contrast, was terminated for such conduct. Specifically, she asserts that Rea breached the company’s confidentiality policy by disclosing to Grant that there had been a complaint about him. Grant testified that Rea told him during his annual review that there had been general complaints regarding Grant’s professionalism. He stated, however, that Rea did not “discuss the incident” that led to the complaint or provide details; he also did not tell Grant that Wold was the complainant. Rather, Rea simply advised Grant, as part of his annual review of Grant’s job performance, that there was a perception that Grant’s “work hard, play hard” attitude had become a “play hard, play hard attitude.” The fact that Rea, Grant’s supervisor, discussed the complaint with Grant in general terms as part of an overall review of Grant’s job performance is not equivalent to Day’s discussion with Lawless, which specifically referenced a formal complaint and occurred after Day had been advised to keep the fact that a complaint had been made confidential. As a result, Rea’s conduct is not sufficiently comparable to Day’s to warrant the conclusion that he and she were similarly situated. Day also asserts that after she shared her concerns about Rea with Lawless, Brooks instructed Lawless to inform Rea of Day’s remarks. Day cites Lawless’ deposition, in which Lawless stated that Brooks told her to inform Rea about her conversation with Day. Day contends that Brooks breached the company’s confidentiality policy by directing Lawless to speak with Rea, and that defendants’ failure to discipline Brooks for this breach establishes disparate treatment sufficient to establish a prima facie case. As is the case with Rea’s purported breach, however, the court cannot find that Brooks is similarly situated to Day for purposes of establishing a prima facie case of discrimination. Brooks is the president of Sears Outlet and was Day’s supervisor during her tenure there. Generally, a supervisor and a lower-level employee are not similarly situated. See Vasquez, 349 F.3d at 641 (“[I]ndividuals are similarly situated when they have similar jobs and display similar conduct.... Employees in supervisory positions are generally deemed not to be similarly situated to lower level employees”); see also Lopez v. Potter, 370 Fed.Appx. 840, 841 (9th Cir.2010) (Unpub. Disp.) (plaintiff failed to establish a prima facie case of discrimination by comparing himself to his superiors because the “managers were not similarly situated to Lopez”); Jones v. Denver Post Corp., 203 F.3d 748, 753 (10th Cir.2000) (“Canino was one of Jones’s supervisors and therefore cannot be deemed similarly situated in a disciplinary matter such as this one”). Brooks’ uncontroverted testimony establishes that as Sears Outlet’s president, it was his responsibility to stay informed regarding investigations of upper level employees like Day. He asserts that it was in this capacity that he- discussed Day’s purported breach with Lawless, and directed that she involve Rea to determine whether human resources should be notified of Day’s conduct. Because Brooks played a significantly different role in the company than Day, the fact that he told Lawless to speak with Rea is not comparable to Day’s alleged breach. Moreover, even if he was not a supervisor, Brooks’ purported conduct is not sufficiently similar to Day's that defendants’ failure to discipline Brooks constitutes evidence of disparate treatment. Day allegedly discussed a formal human resources investigation with Lawless; there is no evidence that Lawless was a human resources employee or tasked with conducting informal investigations prior to involving human resources. Rather, it appears that Lawless was completely removed from the Grant investigation until Day spoke with her about it. By contrast, Brooks told Lawless to advise Rea of Day’s complaint because Brooks was concerned that Day had breached company policy and, as Day’s direct supervisor, Rea was tasked with conducting an initial informal investigation regarding possible misconduct. In essence, Brooks directed Lawless to bring Day’s comments to Rea’s attention so that Rea could determine whether a new human resources investigation ought to be opened. It is therefore not clear that Brooks’ direction to Lawless to speak with Rea was a breach of company policy or sufficiently similar to Day’s conduct to warrant an inference of discriminatory treatment. As a consequence, Day has failed to show that Brooks “engaged in the same conduct as [Day] without any mitigating or distinguishing circumstances.” Wills v. Superior Court, 195 Cal.App.4th 143, 173, 125 Cal.Rptr.3d 1 (2011). Ultimately, even if Brooks did violate defendants’ confidentiality policy, he was not similarly situated to Day, because he was an upper level manager while Day was a regional sales director, and their conduct was not sufficiently similar. Defendants’ failure to discipline him, therefore, does not give rise to a reasonable inference of gender discrimination. Ching v. Warner Bros. Studio Facilities, Inc., No. B220924, 2011 WL 2936535, *6 (Cal.App. July 20, 2011) (Unpub. Disp.) (“Ching then claims that another employee who violated the confidentiality rule was not terminated or disciplined, but he has not shown that he was similarly situated to that employee”). Accordingly, Day cannot establish a prima facie case of gender discrimination on the basis of defendants’ treatment of Brooks. Day also argues that similarly situated male employees impeded human resources investigations and lied during formal investigations. First, she claims that Grant, Calderwood, and Rea impeded the Grant investigation by failing to disclose material information, including emails they received from Grant regarding drinking, women, and domestic violence. Jemo’s deposition testimony appears to confirm that these emails were not shared with human resources during the Grant investigation. Day further asserts that Grant lied about his excessive drinking and lewd comments when interviewed by Jemo, but faced no consequences for his dishonesty. The actions of Grant, Calderwood, and Rea are distinguishable from the conduct that led to Day’s termination. Defendants purportedly terminated Day for lying in response, to specific questions put to her as to whether she had discussed the Grant investigation with anyone. This is different than failing to disclose emails, particularly because there is no evidence that Jqmo specifically asked for the documentation that was withheld. Although he stated that he would likely have asked the employees he interviewed, including Grant, Calderwood, and Rea, to provide any documentation in their possession relevant to the investigation, Jemo testified during his person-most-knowledgeable deposition that he does not specifically recall asking for emails relevant to the complaints against Grant. Additionally, while Day argues that Grant lied to Jemo during the course of the investigation into his conduct, she adduces no evidence that he was dishonest during his interview with Jemo. In fact, Jemo testified at his deposition that he believed Grant was truthful during his interview; defendants, moreover, never accused Grant of dishonesty. See Safeway Corp., 1999 WL 778202, at *4 (“Smith[, .a white female,] argues that some employees were terminated while others were suspended or given written warnings. Smith points to employees Andy Yee and Gary Puno, both Asian American men, who were not terminated by Safeway. However, Smith fails to note that Safeway’s investigator concluded that Yee and Puno had not engaged in the type of consistent violations of store policy than Smith had, and she has failed to produce evidence to the contrary”); compare Ezell v. Edwards Theatres, Inc., No. 104-CV-6583-SMS, 2006 WL 8782698, *17 (E.D.Cal. Dec. 21, 2006) (“Leist was sufficiently similarly situated with Plaintiffs because she was accused of having engaged in conduct that warranted expulsion, but she was not subjected to the same humiliating treatment as Plaintiffs, was not subjected to questioning or an investigation with respect to the alleged wrongful conduct, was not ejected, and was supported by Defendants’ manager, who sought out witnesses in her behalf and obtained statements” (emphasis added)). Jemo also stated that during his interview, Grant did not deny making derogatory remarks, and stated only that he did not recall making them. Finally, defendants adduce evidence that they have, in the past, terminated male employees for dishonesty. There is thus no evidence that defendants treated similarly-situated individuals outside Day’s protected class more favorably. Ultimately, while Jemo and others at Sears Outlet concluded that Day had lied during her investigation, they did not find that Grant, Calderwood or Rea had been dishonest. As a consequence, it cannot be said that these employees engaged in misconduct similar to that with which Day was charged. They are not, as a result, similarly situated for the purposes of establishing a prima facie case. See Meaux, 718 F.Supp.2d at 1090-91 (employees were not similarly situated because “Plaintiffs and Doe’s conduct [was] not comparable”). Rather, Day wishes to have the court compare “apples with oranges.” Maniccia, 171 F.3d at 1368. Moreover, at least one male regional sales director — the same position held by Day — had earlier been terminated for similar dishonesty. See Snead v. Metropolitan Property & Cas. Ins. Co., 237 F.3d 1080, 1094 (9th Cir.2001) (concluding, in the context of determining pretext, that a showing that “at least one other similarly situated employee ... was treated in a similar manner as [plaintiff]” negated a showing of discriminatory intent). Accordingly, defendants’ retention of Grant, Calderwood and Rea does not give rise to an inference of discriminatory animus. The court notes, finally, that, even if the individual incidents Day cites in fact violated company policy or constituted wrongful conduct, she has proffered no evidence that a similarly situated employee engaged in all three forms of alleged wrongdoing— i.e., breached confidentiality, impeded an investigation, and lied during an investigation — without disciplinary action. For example, although Day asserts that Rea breached confidentiality by discussing her complaint with Grant, she proffers no evidence that he also lied during an investigation of his purported breach. Similarly, even if Brooks breached confidentiality by instructing Lawless to contact Rea, there is no evidence that he also impeded an investigation or lied to human resources officials. Thus, even if the evidence Day proffers concerning Grant’s, Rea’s, and Brooks’ actions supported a conclusion that they had engaged in misconduct similar to one of the offenses committed by Day, there is no evidence that any male employee breached confidentiality, impeded an investigation, and lied during an investigation, without being subjected to discipline. An a result, the severity of any wrongdoing in which these male employees engaged is not comparable to Day’s alleged misconduct, and the court cannot conclude that the evidence raises triable issues of fact as to whether defendants treated similarly situated employees outside Day’s protected class more favorably. For the reasons stated, the court concludes that Day has not overcome the inference of nondiscrimination that arises from the fact that the same individual hired and fired her within a relatively short period. Day has adduced no evidence that causally links her termination to her protected status. Moreover, she has proffered no evidence that similarly situated employees outside her protected class were treated more favorably; there is no evidence in the record of similarly situated male employees breaching confidentiality, in the manner Day purportedly did. Additionally, the only evidence concerning other employees accused of dishonesty is Brooks’ declaration that he previously terminated male employees for lying. Day adduces no evidence regarding other employees accused of impeding an investigation. Most significantly, she has proffered no evidence that a similarly situated employee outside her protected class engaged in all three forms of misconduct without being disciplined. Thus, Day has failed to establish a prima facie case of gender discrimination. 3. Defendants’ Nondiscriminatory Reason for the Adverse Employment Action Even if the court assumes that Day’s evidence is sufficient to establish a prima facie case of gender discrimination, defendants have articulated a legitimate, non-discriminatory reason for discharging her. To satisfy their burden of production on this issue, defendants “need not persuade the court that [they were] actually motivated by the proffered reasons. It is sufficient if the[ir] ... evidence raises a genuine issue of fact as to whether [they] discriminated against the plaintiff. To accomplish this, the defendant[s] must clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiffs [dismissal].” Burdine, 450 U.S. at 255, 101 S.Ct. 1089. Under FEHA, defendant’s true reasons, “if nondiscriminatory, ... need not necessarily have been wise or correct ... While the objective soundness of an employer’s proffered reasons supports their credibility, the ultimate issue is simply whether the employer acted with a motive to discriminate illegally. Thus, ‘legitimate’ reasons ... in this context are reasons that are facially unrelated to prohibited bias, and which, if true, would thus prohibit a finding of discrimination.” Guz, 24 Cal.4th at 358, 100 Cal.Rptr.2d 352, 8 P.3d 1089 (emphasis original). Defendants assert that Day was terminated for violating company policy that required that employees maintain the confidentiality of company investigations and for lying to investigators during an interview regarding her complaint against Grant. Defendants assert that they have adopted a company policy that “Human Resources investigations are confidential, due to the sensitive and often private, nature of such investigations.” They also maintain that another company policy requires employees to cooperate with human resources investigations. Several courts have recognized that violation of company policies is a legitimate, nondiscriminatory reason for terminating an employee. See, e.g., Dumas v. New United Motor Mfg., Inc., 305 Fed.Appx. 445, 448 (9th Cir.2008) (Unpub. Disp.) (“NUMMI proffered a legitimate, non-discriminatory reason for terminating Mr. Dumas — his violation of company policy”); Elmore v. New Albertson’s, Inc., No. CV 11-04802-ODW (JCx), 2012 WL 3542537, *4 (C.D.Cal. Aug. 15, 2012) (“Albertson’s has provided a legitimate, nondiscriminatory reason for Elmore’s termination. Specifically, Elmore violated Albertson’s company policy through her conduct”); Rezentes v. Sears, Roebuck & Co., 729 F.Supp.2d 1197, 1205 (D.Haw.2010) (“Sears may have ‘honestly believed’ that Rezentes violated company policy and then lied about her actions. Firing an employee because of honesty and integrity concerns is a legitimate, nondiscriminatory reason for a termination”). Day, moreover, does not dispute that violation of company policies is a legitimate, nondiscriminatory basis for terminating an employee. Thus, even had Day made out a prima facie case of gender discrimination, defendants have proffered sufficient evidence to demonstrate a legitimate, nondiscriminatory reason for terminating her, and the burden shifts to Day to raise triable issues of fact regarding pretext. 4. Whether Day Has Raised Triable Issues of Fact Concerning the Pretextual Nature of Defendants’ Explanation To show that defendants’ articulated reason for termination was not the true reason, Day “may succeed ... either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.” Burdine, 450 U.S. at 256, 101 S.Ct. 1089. See also Chuang v. University of California Davis, 225 F.3d 1115, 1127 (9th Cir.2000) (“We have stated that a plaintiff can prove pretext in two ways: (1) indirectly, by showing that the employer’s proffered explanation is ‘unworthy of credence’ because it is internally inconsistent or otherwise not believable, or (2) directly, by showing that unlawful discrimination more likely motivated the employer”); Nidds, 113 F.3d at 918 (to satisfy her burden and survive summary judgment, plaintiff “must produce enough evidence to allow a reasonable factfinder to conclude either: (a) that the alleged reason for [the] discharge was false, or (b) that the true reason for his discharge was a discriminatory one”); Warren v. City of Carlsbad, 58 F.3d 439, 443 (9th Cir.1995) (stating that plaintiff “must produce evidence of facts that either show a discriminatory motive or show that the [employer’s] explanation for his rejection is not credible”). Day “may rely on the same evidence [she] used to establish a prima facie case or put forth additional evidence.” Coleman, 232 F.3d at 1282, “[C]ircumstantial evidence that tends to show that the employer’s proffered motives were not the actual motives ‘must be “specific” and “substantial” in order to create, a triable issue with respect to whether the employer intended to discriminate ....’” Blue v. Widnall, 162 F.3d 541, 546 (9th Cir.1998) (quoting Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1222 (9th Cir.1998)). See also Wallis, 26 F.3d at 890 (“In response to the defendant’s offer of nondiscriminatory reasons, the plaintiff must produce ‘specific, substantial evidence of pretext,’ ” quoting Steckl v. Motorola, Inc., 703 F.2d 392, 393 (9th Cir.1983)). Stated differently, an employee offering circumstantial evidence to show pretext must proffer “substantial" evidence” that “the employer’s stated reason for the adverse action was untrue or pretextual, or evidence that the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude that the .employer engaged in intentional discrimination.” Morgan v. Regents of the University of California, 88 Cal.App.4th 52, 75, 105 Cal.Rptr.2d 652 (2000) (quoting Horn v. Cushman & Wakefield Western, Inc., 72 Cal.App.4th 798, 806-07, 85 Cal.Rptr.2d 459 (1999) (internal quotation marks omitted)). “An employee in this situation cannot simply show the employer’s decision was wrong, mistaken, or unwise. Rather, the employee must demonstrate such weaknesses,' implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence, ... and hence infer that the employer did not act for the [... asserted] non-discriminatory reasons.” Id. (quoting Horn, 72 Cal.App.4th at 807, 85 Cal. Rptr.2d 459 (internal quotation marks omitted)). Where a plaintiff presents direct evidence that the proffered explanation is a pretext for discrimination, however, “very little evidence” is required to avoid summary judgment. E.E.O.C. v. Boeing Co., 577 F.3d 1044, 1049 (9th Cir. 2009). Day has adduced no direct evidence of gender discrimination. As noted, Day testified that she did not believe she was ever denied a promotion or benefits due to her gender; that no one made gender-based statements in her presence that she felt were inappropriate; and that she never received any documents or writings that contained derogatory statements about her gender. Rather, Day relies on circumstantial evidence to support her claim of pretext. First, she argues that statistical evidence supports an inference that defendants have discriminatory animus toward women class. When Day was hired, five of sixteen national, regional, and district level field sales positions were held by women; by the time she was discharged, only one’ of the sixteen positions was filled by a woman. Day contends that the small number of positions held by women, and the fact that they decreased over time shows that defendants engaged in a pattern of discriminatory conduct. Statistical evidence, is a form of indirect evidence that “may tend to show pretext.” Carden v. Chenega Sec. & Protection Services, LLC, No. CIV. 2:09-1799 WBS CMK, 2011 WL 1807384, *6 (E.D.Cal. May 10, 2011). The utility of statistics, however, “depends on all the surrounding facts and circumstances.” Sengupta v. Morrison-Knudsen Co., Inc., 804 F.2d 1072, 1075 (9th Cir.1986). In Sengupta, the court declined to consider a plaintiffs evidence that four of five employees laid off in a pool of 28 employees were African American. Id. It noted that “statistical evidence derived from an extremely small universe ... has little predictive value and must be disregarded.” Id. at 1076 (internal quotation marks omitted). See also Aragon v. Republic Silver State Disposal Inc., 292 F.3d 654, 663 (9th Cir.2002) (“[T]he fact that three of the four casuals singled out for lay off that night were white could constitute circumstantial evidence of discrimination demonstrating pretext.... Yet, because the sample size is so small, we decline to give it much weight”). Furthermore, to demonstrate pretext, statistics “must show a stark pattern of discrimination unexplainable on grounds other than [gender].” Coleman, 232 F.3d at 1283. Day’s statistical evidence concerning a pool of sixteen employees is too small to constitute “substantial and specific” evidence that defendants’ proffered reasons for terminating her are pretextual. See Diaz v. Eagle Produce Ltd. Partnership, 521 F.3d 1201, 1209 (9th Cir.2008) (holding that “two data sets of sixteen workers are too small to form a reliable basis for analysis”). Moreover, the fact that the number of field sales positions held by women declined from five to one is insufficient, by itself, to demonstrate pretext. See Palmer v. United States, 794 F.2d 534, 539 (9th Cir.1986) (“Plaintiffs simple proof that the age of employees declined over time is patently insufficient; he has not demonstrated any relationship between the challenged agency actions and the decline in ages with regard to the pool of employees eligible to be affected by the disputed agency actions”). Rather, statistical evidence must also “account for possible nondiscriminatory variables, such as job performance.” Aragon, 292 F.3d at 663. Day has adduced insufficient evidence to show that the three female employees who were no longer employed at the time she was terminated lost their jobs due to gender discrimination. Defendants, moreover, proffer evidence that two of the other three women who left the company resigned, and Penny Parker, the only other woman discharged, had been placed on a performance improvement plan and was eventually terminated for poor performance. Day has adduced no contradictory evidence. Additionally, Day has not demonstrated that the pool of sixteen field sales positions is the relevant one on which to assess discriminatory motive. See Sengupta, 804 F.2d at 1075-76 (“Sengupta’s ability to prove discriminatory intent based on statistical evidence depends upon selecting the proper labor pool. The issue is whether that pool is the entire Mining Group or Department 222”). The Ninth Circuit has stated that the “impact of a practice on the protected class should generally be measured against the actual pool of employees affected by that practice.” Id. Defendants have adduced evidence that the pool of 16 workers identified by Day represents only national, regional, and district sales positions in the field; it excludes equivalent positions in defendants’ home office. Day’s argument is that Brooks and other upper-level managers have fostered a “boys’ club” atmosphere throughout the company; she does not limit the contention to field workers. As a result, there is no reason artificially to shrink the pool of relevant employees and statistical evidence. See id. (“By necessity, courts sometimes must rely on statistics derived from small sample groups. Not to do so would deny employees in small companies some of the protections that Title VII provides. M-K is not, however, a small company; nor is the Mining Group a small group. There exists no necessity to employ a small group”). Given the unrepresentative and unnecessarily small sample size Day used, and her failure to take into account possible nondiscriminatory variables, Day’s statistical evidence is not sufficient to carry her burden of adducing “specific, substantial evidence of pretext.” Wallis, 26 F.3d at 890. Day next argues that the fact that defendants changed their explanation for terminating her demonstrates pretext. Day asserts that defendants initially stated she was being terminated for breaching confidentiality, but later claimed that she had also been terminated for lying during an investigation and impeding an investigation. However, only “substantial changes over time in the employer’s proffered reason for its employment decision support a finding of pretext.” Sanchez v. Corrections Corp. of America, No. CV F 06-0152 AWI DLB, 2007 WL 1390675, *12 (E.D.Cal. May 9, 2007) (emphasis in original). See also Washington v. Garrett, 10 F.3d 1421, 1434 (9th Cir.1993) (“[I]n the ordinary case, such fundamentally different justifications for an employer’s action would give rise to a genuine issue of fact with respect to pretext since they suggest the possibility that neither of the official reasons was the true reason” (emphasis added)). A court cannot “infer pretext from the simple fact that [defendants] had two different, although consistent, reasons for laying off’ an employee. Aragon, 292 F.3d at 661. The proffered explanations for Day’s termination are consistent; all pertain to her conduct during the Grant investigation. There is nothing inconsistent about terminating Day for breaching the confidentiality of an investigation and for lying about the breach. Moreover, the fact that defendants articulated additional, consistent explanations for Day’s discharge after the termination decision was made is not evidence of pretext. See Smith v. Oklahoma ex rel. Tulsa County Dist. Attorney, 245 Fed.Appx. 807, 816 (10th Cir. 2007) (Unpub. Disp.) (“Here, we agree with the district court that the explanations offered for Ms. Smith’s discharge are not part of a long line of ‘new’ reasons but an increasingly detailed explanation, for the reasons articulated”); Lindahl v. Air France, 930 F.2d 1434, 1438 (9th Cir. 1991) (“Simply because [a new] explanation comes after the beginning of litigation does not make it inherently incredible”); Ekweani v. Ameriprise Financial, Inc., No. CV-08-01101-PHX-FJM, 2010 WL 481647 (D.Ariz. Feb. 8, 2010) (“[P]laintiff claims that, because defendant did not offer his qualifications as a reason [for termination] until recently, the shifting nature of defendant’s explanations is evidence of pretext. The reasons articulated are plainly consistent. Thus, they are not probative of pretext merely because one came later”). Day was notified early in the Grant investigation that Jemo believed she was interfering in a company investigation by not providing the details he requested. Moreover, according to Brooks, he was told that the Grant investigation had been delayed due to Day’s failure to provide information requested by Jemo; he states it was this delay that spurred him to direct that Day have a personal interview with Jemo. Accordingly, Day’s argument that defendants’ various proffered explanations for her termination is evidence of pretext is unavailing. Finally, Day argues that the proffered explanation for her termination is false, because she did not breach defendants’ confidentiality policy, lie to investigators, or impede the Grant investigation. A plaintiff cannot demonstrate pretext, however, by showing the “employer’s decision was wrong, mistaken, or unwise.” Batarse v. Service Employees Intern. Union Local 1000, 209 Cal.App.4th 820, 834, 147 Cal.Rptr.3d 340 (2012). Rather, she “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.” Id. While Day disputes the conclusion that she violated company policy, she has not adduced evidence that the investigation of her conduct was so flawed as to be unworthy of credence. Nor has she adduced evidence suggesting that defendants’ conclusion was implausible or incoherent. Thus, even if Day is correct that defendants were wrong, and she did not breach the confidentiality policy, lie to investigators or impede an investigation, this does not show that her termination was motivated by discriminatory animus. See Guz, 24 Cal.4th at 361, 100 Cal.Rptr.2d 352, 8 P.3d 1089 (“Proof that the employer’s proffered reasons are unworthy of credence may ‘considerably assist’ a circumstantial case of discrimination, because it suggests the employer had cause to hide its true reasons. Still, there must be evidence supporting a rational inference that intentional discrimination, on grounds prohibited by the statute, was the true cause of the employer’s actions” (emphasis original)); Wills v. Superior Court, 195 Cal.App.4th 143, 160, 125 Cal.Rptr.3d 1 (2011) (“The [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”). To raise triable issues of fact regarding pretext, Day must not only show that defendants’ conclusion regarding her breach of company policies was wrong, but also adduce evidence that her termination was the result of discriminatory animus. As noted, several individuals testified that they independently concluded Day had breached company policy. For her part, Day failed to proffer sufficient direct or circumstantial evidence that these findings are unworthy of credence, implausible or incoherent. Thus, even if the court assumes that Day established a prima facie case of gender discrimination, she has not adduced substantial and specific evidence demonstrating that defendants’ legitimate, nondiscriminatory reason for terminating her was a pretext for discrimination. 5. Conclusion Regarding Day’s Gender Discrimination Claims For the reasons stated, defendants are entitled to summary judgment on Day’s first and second causes of action. C. Whether Defendants are Entitled to Summary Judgment on Day’s Third and Fourth Claims for Relief Defendants next seek summary judgment on Day’s third and fourth claims, which allege that defendants retaliated against Day for complaining about gender discrimination. Under FEHA, it is an unlawful employment practice for any employer “to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under [FEHA] or because the person has filed a complaint, testified, or assisted in any proceeding under [FEHA].” Cal. Gov’t Code § 12940(h). In assessing the viability of FEHA retaliation claims in the context of motions for summary judgment, California courts apply the same burden-shifting analysis discussed above. See Yanowitz v. L’Oreal USA, Inc., 36 Cal.4th 1028, 1042, 32 Cal.Rptr.3d 436, 116 P.3d 1123 (citing McDonnell Douglas Corp., 411 U.S. at 802-05, 93 S.Ct. 1817). To establish a prima facie case of retaliation, a plaintiff must show that (1) she engaged in a protected activity, (2) the employer subjected h'ér to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action. Nazir v. United Airlines, Inc., 178 Cal.App.4th 243, 287, 100 Cal.Rptr.3d 296 (2009) (citing Miller v. Department of Corrections, 36 Cal.4th 446, 472, 30 Cal.Rptr.3d 797, 115 P.3d 77 (2005)). State and federal courts in California have found that the following are protected activities under FEHA: (1) filing an administrative complaint or grievance, see Barefield v. Board of Trustees of CA State University, Bakersfield, 500 F.Supp.2d 1244, 1253 (E.D.Cal.2007) (discrimination grievance filed with the California Faculty Association); McRae v. Department of Corrections and Rehabilitation, 142 Cal. App.4th 377, 386, 48 Cal.Rptr.3d 313 (2006) (“It is not contested that Dr. McRae engaged in ‘protected activity’ — the filing of DFEH claims”); (2) making informal complaints to supervisors, see Garcia v. Los Banos Unified School Dist., 418 F.Supp.2d 1194, 1224 (E.D.Cal.2006) (“Plaintiff alleged and provided evidence reasonably warranting an inference that she complained to Elliott, Heid’s superior, about Heid’s sexually derogatory ‘ass wiping’ remark and his having yelled at her and raised his fist in a physically threatening way”); and (3) serving as a witness in a coworker’s FEHA proceeding, see Steele v. Youthful Offender Parole Bd., 162 Cal. App.4th 1241, 1252, 76 Cal.Rptr.3d 632 (2008) (“Kaslar filed a complaint with the DFEH based, in part, on the YOPB retaliating against her for her report of the kissing incident involving Galindo and Lisa. Lisa was a ‘potential witness’ in such proceeding. Thus, Lisa was engaged in a protected activity so as to meet the first requirement for a claim of retaliation”). Defendants assert that Day did not engage in protected activity, and therefore cannot establish a prima facie case of retaliation. The court agrees. Day has adduced no evidence that she complained to her supervisors, or anyone else, regarding defendants’ alleged gender discrimination. Her complaints about Grant stated only that she had received reports that he had acted unprofessionally. Specifically, in Day’s August 25 email to Rea, which memorialized her complaint in writing, Day asserted that she was “very concerned at the lack of professional conduct displayed by Mark Grant.” She stated that “there [was] significant concern that Mark’s drinking is a problem beyond partying;” that there were reports of “Mark picking up women and drinking heavily” at company events; and that on several occasions Grant had failed to train employees effectively. Day also stated that she had received reports from other employees that Grant had “carried on conversations that are inappropriate including drinking and women exploits.” In a follow-up email dated September 10, 2010, Day reiterated that she had received reports about Grant’s “partying” and the fact that he made inappropriate remarks about women. She conveyed Wold’s report that Grant engaged in “inappropriate conversations regarding ‘girlfriends’ and infidelity.” These activities, while unbecoming, do not constitute gender discrimination in violation of FEHA. Absent evidence that Day complained of discriminatory treatment based on gender, her statements were not “protected activity” under FEHA. See Peralta v. City and County of San Francisco, 427 Fed.Appx. 616, 617 (9th Cir.2011) (Unpub. Disp.) (“Peralta has failed to make out a prima facie case of retaliation under the same statutes because his complaint to Senior Operating Manager George Louie about Britt’s ‘unprofessional’ conduct was not a protected activity — it did not protest an unlawful employment practice”); Chu v. Kaiser Foundation Health Plan, No. B216827, 2010 WL 2816814, *10 (Cal.App.2010) (Unpub. Disp.) (finding no prima facie case of retaliation because “[t]he evidence of Chu’s complaints shows that Chu essentially complained that Smith had engaged in unprofessional conduct”); see also Peters v. District of Columbia, 873 F.Supp.2d 158, 202 (D.D.C.2012) (“While informal complaints to management may constitute protected activity, the plaintiffs must clearly complain about discriminatory treatment”); Henny v. New York State, 842 F.Supp.2d 530, 560 (S.D.N.Y.2012) (“In particular, Plaintiff admits that at no time during any of her conversations with Patel or Ramcharitar did she say that she felt Abraham was receiving preferences because of her ethnicity, nor did Plaintiff ever say that she was being disfavored because of her race. Indeed, the Court invited Plaintiffs counsel at oral argument to point to any evidence in the record that she complained that Abraham’s favorable treatment over Plaintiff was based on race or ethnicity, but counsel submitted nothing. Thus, Plaintiff has produced no evidence from which a reasonable jury could conclude that Defendants could have understood Plaintiffs complaints to be about racial or ethnic discrimination. Plaintiff therefore fails to make a prima facie case of retaliation under Title VII, and this claim is also dismissed”). As in Peralta, Day’s complaint regarding Grant’s behavior did not allege that he had engaged in an unlawful employment practice. No aspect of the complaint suggests that Day or other female employees had been treated less favorably because of their gender. In fact, Day testified that she did not believe she was ever denied a