Guyton v. Novo Nordisk, Inc. (151 F. Supp. 3d 1057, 2015)

ORDER GRANTING DEFENDANT’S' ” MOTION FOR SUMMARY t JUDGMENT

MARGARET M. MORROW, UNITED STATES DISTRICT JUDGE

On September 5, 2014, Andrew Guyton sued Novo Nordisk, Inc. (“Novo Nordisk”) and various fictitious defendants, alleging claims of race and age. discrimination, as well as retaliation, under California’s Fair Employment and Housing Act, Government Code § 12900 et seq. (“FEHA”); he also pled a claim for-wrongful discharge in violation of public policy. Novo Nordisk was served on December 5, 2014, and timely removed the action to federal court on January 2, 2015, invoking the court’s diversity jurisdiction.

On November .16, 2015, Novo Nordisk moved for summary judgment. Guyton opposes the motion.

I. FACTUAL BACKGROUND

A. Novo Nordisk and Its Relevant Policies i

Novo Nordisk is a pharmaceutical company that develops, markets, and sells drugs designed to treat-patients suffering from Type I and Type II diabetes.- As described by one of Novo Nordisk’s managers, Jill Sutton, Novo Nordisk’s sales professionals and sales managers are organized into regions, which iii turn are divided.-up sales districts. The sales districts are divided into sales territories. Regions are overseen by “regional sales directors,” while sale districts are overseen by “district managers.” Field sales professionals — who are responsible for marketing and selling products to health care professionals (“HCPs”) — are assigned to. a particular-sales territory. Within Novo Nor-disk, field,-sales professionals are referred to as Diabetes Care Specialists (“DCSs”).

' In marketing and selling products to HCPs, DCSs regularly make certain ¡expenditures for the benefit of HCPs; these include buying them meals and gifts. Partly because of this, pharmaceutical companies operating in the United States are subject to certain laws that restrict their access to and interactions with HCPs. One of these is an “anti-kickback law,” which requires that pharmaceutical companies trace and publicly disclose their expenditures associated with HCP interactions. Novo Nordisk asserts that it is committed to complying with these regulations, and identifies two handbooks (a 2011 “U.S.Code of Business Conduct” and a, 2013 “Business Ethics Policy”) that are given to Novo Nordisk employee^. -These handbooks reference relevant laws and summarize thirteen different laws, regulations, and administrative guidelines.

Because of the laws and regulations that govern its sales efforts, Novo- Nordisk has adopted written policies that place limits on the manner in which DCSs may interact with HCPs. One of these policies re quires that DCSs limit the frequency, amount, and type of - expenditures they make in visiting HCPs, both to comply with relevant regulations and to avoid the appearance of impropriety. The policies also require that DCSs record detailed information concerning each expenditure made, including the amount' and type of expenditure and-the name of all individuals — both HCPs and Novo Nordisk employees — present at each meal or other activity related- to the expenditure; ■ these records are publicly disclosed. Additionally, Novo Nordisk policy mandates that DCSs enter their field sale expenses on a bi-weekly schedule. It also requires that DCSs record a log of each sales call they make to. HCPs;, this allows management to match recorded expenditures with recorded calls to help ensure accuracy. Guyton does not dispute that Novo" Nordisk has enacted these written policies; he asserts, however, that Novo Nordisk is not genuinely committed to regulatory compliance, that management places “blind emphasis on selling,” and that it encourages DCSs to engage in sales practices that violate the law and its written policies.

B. Guyton’s Employment and Disciplinary Issues

Novo Nordisk hired Guyton as a DCS in March 2007. During his approximately seven year tenure at the company, Guyton failed on certain occasions to comply with several of Novo Nordisk’s policies. Guy-ton’s call logs" from January 2012 through May 2013 -reflect,, numerous instances in which a sales call was not logged the day the call was made, as required by policy. In August 2012 alone, for example, Guyton logged more than forty, sales calls late; ten of these were entered at least two weeks late. Between October 2012 and the first half of November 2012, Guyton logged more than 100 sales calls at least two weeks late. Between March 6 and May 24, 2013, Guyton logged more than seventy-five calls late; approximately thirty were entered at least a week late.' In addition to logging calls late, Guyton also failed to comply with Novo Nordisk’s policy requiring that DCSs record sales ex7 penses on a bi-weekly basis. On April 9, 2012, for example, Guyton entered more than thirty field sales expenditures that he had made over forty-five days earlier. Likewise, on July 19, 2012, Guyton entered more than twelve field sales expenditures, all of which he had incurred at least three months earlier. In October and November 2012, Guyton’s expense reports reflect at least five sales expenditures that Guyton had incurred at least thirty days earlier. During this period, no other employee reporting to Guyton’s supervisor, Sutton, consistently fell behind in logging calls and recording expenses.

In November-'2012, Guyton was- placed on an “action plan” — -a probationary form of discipline at Novo Nordisk. Deanna Canepa, a regional field director, who supervised the Southern California district while Sutton was on maternity leave, asserts that Guyton was placed on an action plan “as a result of his continued failure to abide by [Novo. Nordisk’s] express policies.” . Guyton does not dispute that he was placed on a disciplinary action plan; he contends, however, that this was - not because he had failed to adhere to Novo Nordisk policies, and that his lack of compliance “is a fact gathered retroactively in an effort to support [Novo Nordisk’s] discriminatory and retaliatory ■actions.”' Nonetheless, the copy of the action plan Guyton received identified two -bases for the disciplinary action: his' failure to log calls- during the work hours the calls were made, and his failure to file expense reports within five days of the end of each bi-weekly period. Guyton testified at his 'deposition that he understood that the reasons he was placed on an action plan were .his failure to record telephone calls to physicians in a timely fashion and his failure to submit timely expense reports. After Guyton was placed on an action plan, his compliance with Novo Nor disk’s policies' began to improve; he was taken off the plan in December 2012.

• Beginning in March 2013, however, Guy-ton’s-compliance with the logging of calls policy worsened. Call log records proffered by Novo Nordisk indicate that'between March and May 24, 2013, Guyton entered more than seventy-five sales calls late, including over thirty that were entered at least a week after the call took place, Guyton does not dispute the accuracy of .the logs or the fact that he continued to enter sales calls late. On May 29, 2013, Guyton received a written warning from Sutton, which placed .him on a “Performance Improvement Plan.” The document cites, inter alia, Guyton’s failure to “record[] [calls] at the time the call is made” as a basis for the warning.

C. Guyton’s Application for the Regional Support Manager Position

. In July 2012, Novo Nordisk sought to hire a regional support manager for the Southern California region.. Stephen Adkins was an associate director at the time who was responsible for interviewing and hiring for the position. Among other qualifications, Adkins expected, as a “threshold requirement,” that applicants would have a clear understanding of what the support manager position entailed. Guyton applied, but was not hired for the position. The parties dispute the reason why Guyton was not hired; this dispute is discussed infra. _ . * .

In July 2012 — the same month Guyton was interviewed for the regional support manager position — Adkins interviewed two other candidates. One was a Hispanic man under the age of 40; the other was a Caucasian woman whose age the parties dispute. Adkins did not offer the position to either of these candidates. In October 2012, two additional candidates applied for the position and were interviewed by Adkins. One wa's Caucasian and under the age of forty; the other, Marcio Orozco, was Hispanic and under the age of forty. Orozco was ultimately hired as the regional support manager,.

D. Guyton’s Unsuccessful Transfer Requests

On December 2, 2012, Guyton wrote an email to Canepa in which he requested a transfer to the Downey territory. According to the email exchange proffered by Novo Nordisk, Canepa immediately forwarded Guyton’s email to other Novo Nor-disk managers asking for their input on the request; she noted that Guyton was currently on an action plan. In response, Rodney Carr, who was at that point a district business manager, stated that he was “not comfortable and would not like to transfer a representative who is currently on an- action plan, -into [hjs] open territory.” According to several Novo Nordisk managers, this is consistent with Novo Nordisk’s policy of not considering an employee’s application for an open position— including a transfer — if the employee is being formally disciplined at the time; this includes having been placed on an action plan. Guyton does not appear to dispute the existence of this policy.

In either March or May 2013, Guyton contacted Carr -to request a transfer to an open sales position in the West Hollywood territory. In May 2013, Carr contacted Myo Tun, the regional business director, to discuss Guyton’s interest in the transfer. Tun told Carr that Guyton was -currently on a performance improvement program or was about to be placed on one. Carr decided not to 'transfer Guyton to the West Hollywood territory because he either was or. was about to be placed on a performance improvement program and therefore was ineligible to be transferred.

E. Guyton’s Leave of Absence and Resignation

On June 7, 2013, Guyton took a leave of absence from work. On January 7, 2014, six months after he took his leave of absence, Guyton secured a different job and resigned from Novo Nordisk.

II. DISCUSSION

A. 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.” F.ed.R.CivProc. 56. 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). 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 id. 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.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Fed.R.Civ.Proc. 56(e)(2). Evidence presented by the parties at the summary judgment stage must be admissible. Féd.R.CivProc. 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. Electric Service, Inc. v. Pacific Electric Contractors Ass’n, 809 F.2d 626, 630-31 (9th Cir.1987).

B. Legal Standard Governing FEHA Claims

FEHA prohibits employers from discriminating and/or retaliating against employees on certain enumerated grounds. Cal. Gov’t Code § 12940(a), (h). Section § 12940(a) declares it unlawful for an employer to refuse to hire, to discharge, or to discriminate against the person in compensation or in terms of, conditions, or privileges of employment, on a- number of grounds, including race and age. Section 12940(h) declares that it is an unlawful employment practice for “any employer ..., or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.” Cal. Gov’t Code § 12940(h). “This enactment aids enforcement of the FEHA and promotes communication and informal dispute resolution in the workplace.” Miller v. Dep’t of Corr., 36 Cal.4th 446, 472, 30 Cal.Rptr.3d 797, 115 P.3d 77 (2005) (citing Flait v. North American Watch Corp., 3 Cal.App.4th 467, 476-77, 4 Cal.Rptr.2d 522 (1992)).

In evaluating FEHA discrimm'atiori and retaliation claims, California courts look to federal precedent governing analogous federal laws. See Guz v. Bechtel National, Inc., 24 Cal.4th 317, 354, 100 Cal.Rptr.2d 522, 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)); Flait, 3 Cal.App.4th at 475-76, 4 Cal.Rptr.2d 522 (“CFEHA prohibits an employer from terminating’ any employee, including at-will employees, for attempting to comply with its provisions forbidding racial, sexual or other forms of job harassment.- Lawsuits claiming retaliatory employment termination in violation of CFEHA are analogous to federal Title VII claims, and are evaluated under federal law interpreting Title VII cases”).

Thus, a plaintiff can establish a prima facie case of discrimination either by adducing direct evidence of discriminatory intent, or by satisfying his burden under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Vasquez, 349 F.3d at 640 (“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”); cf. 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”). The McDonnell Douglas framework also applies to retaliation claims. See Xin Liu v. Amway Corp., 347 F.3d 1125, 1143 (9th Cir.2003) (“For purposes of summary judgment, we analyze Liu’s Title VII and FEHA retaliation claim under the McDonnell Douglas burden shifting standard”).

In McDonnell Douglas Corp., the Supreme Court held that plaintiff bears the initial burden of establishing a prima facie case of discrimination or retaliation. ' If plaintiff succeeds in proving a prima facie case, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory or nonretaliatory reason for the employment action. Should defendant carry this burden of production, the burden of proof shifts back to plaintiff to demonstrate that a material question of fact exists concerning whether defendant’s asserted reason is the true reason or a mere pretext. 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, 252-53, 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 or nonretaliatory reason for its actions, 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), superseded by statute on other grounds as recognized in Dominguez-Curry v. Nevada Transp. Dept., 424 F.3d 1027 (9th Cir.2005); see also Nidds v. Schindler Elevator Corp., 113 F.3d 912, 917-18 (9th Cir.1997) (“To ... 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”). “Very little” evidence need be adduced to make out a prima facie case. Sischo-Nownejad, 934 F.2d at 1111 (quoting Lowe v. City of Monrovia, 775 F.2d 998, 1009 (9th Cir. 1985), as amended, 784 F.2d 1407 (1986)).

McDonnell Douglas, a refusal to hire case, held- that a plaintiff could establish a prima facie case “by showing (i) that he belonged] to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued-to seek applicants from persons of complainant’s qualifications.” McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. The Court cautioned against rigid application of this test, however, noting that “facts necessarily will vary in [discrimination] cases, and [that its] specification .,. ,of the prima facie proof required from [plaintiff] [would] not necessarily [be] applicable in every respect to differing factual situations.” Id. at 802 n. 13, 93 S.Ct. 1817.

Courts evaluating other types of al-léged discrimination claims have thus made various adjustments to the McDonnell Douglas formulation. In Godwin v. Hunt Wesson, 150 F.3d 1217 (9th Cir. 1998), for example, the Ninth Circuit held that a plaintiff had established a prima facie case of sex discrimination .under FEHA by establishing that “(1) she- he-long[ed] to a protected class, (2) she [had been] performing according to her employer’s legitimate expectations, (3) she [had] suffered an adverse employment action, and (4) other employees with qualifications similar to her own were treated more favorably.” Id. at 1220.

The California Supreme Court synthesized these formulations into a generalized test in Guz, 24 Cal.4th 317, 100 Cal.Rptr.2d 352, 8 P.3d 1089. It held that “the plaintiff must provide evidence that (1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.” Id. at 355, 100 Cal. Rptr.2d 352, 8 P.3d 1089 (citations omitted).

Similarly, to state.a “prima-.facie case of retaliation, a plaintiff must show that: (1)[ ]he was engaging in a protected activity, (2)- the- employer subjected [him] to an adverse employment decision, and (3) there was a causal link between the pm tected activity and the employer’s action.” See Xin Liu, 347 F.3d at 1143-44;, Flait, 3 Cal.App.4th at 476, 4 Cal.Rptr.2d 522 (“the plaintiff must-show that he engaged in a protected activity, his employer subjected him to adverse employment action, and there is a causal link between the protected activity and the employer’s action”).

C. Whether Guyton Failed Timely to Exhaust Administrative Remedies Regarding His FEHA Failure to Promote Claims

Guyton alleges that Novo Nor-disk discriminated against him because of his age’ and race, and retaliated against him for protected conduct. In support of these claims, Guyton argues, inter alia, that Novo Nordisk’s failure to promote him to the position of regional support manager constituted discrimination and retaliation.- Novo Nordisk-contends it is entitled to summary judgment on Guyton’s promotion-based discrimination and retaliation claims because-the claims are untimely. Specifically, it contends that because: Guyton, asserts the claims under California’s- Fair Employment and Housing. Act-(“FEHA”), California Government Code § 12900, et seq, Guyton was obligated to comply with the administrative exhaustion requirements of that statute. “In order to bring a civil action under FEHA, the aggrieved person must exhaust the administrative remedies provided by law. Exhaustion in this context requires filing a written charge with the Department of Fair Employment and Housing (“DFEH”) within one year of the alleged unlawful employment discrimination [or retaliation], and obtaining notice from DFEH of the right to sue.” Rodriguez v. Airborne Express, 265 F.3d 890, 896 (9th Cir.2001) (citing Romano v. Rockwell Int’l, Inc., 14 Cal.4th 479, 492, 59 Cal.Rptr.2d 20, 926 P.2d 1114 (1996); Yurick v. Superior Court, 209 Cal.App.3d 1116, 1121, 257 Cal. Rptr. 665 (1989)); “[I]n the context of the Fair. Employment and Housing Act ... (the failure to exhaust an administrative remedy is a jurisdictional, not. a procedural defect,’ and thus -... the -failure to exhaust administrative remedies is a ground for .a defense summary judgment.” Martin v. Lockheed Missiles & Space Co., 29 Cal. App.4th 1718, 1724, 35 Cal.Rptr.2d 181 (1994) (quoting Miller v. United Airlines, Inc., 174 Cal.App.3d 878, 890, 220 Cal. Rptr. 684 (1985)); see also Barnes v. Hershey Co., No. C 12-1334, 2012 WL 5412031, *6 (N.D.Cal. Nov. 6, 2012) (“Barnes failed to. exhaust his administrative remedies, and Hershey’s motion for partial summary judgment on his FEHA claim is GRANTED”).

Novo Nordisk .argues that Guyton, was denied thé regional support manager position in July 2012;) it; is undisputed'.that Guyton filed his DFEH charge on October 4, 2013. Novo Nordisk contends, as a result, that the promotion-based claims are time-barred as a matter of law, sihce Guy-ton filed his charge more than one year after the alleged discrimination and retaliation. Guyton counters that he was not eliminated from consideration for the position until late October 2012, He alleges that although Adkins “suggested]” during the July interview that he would not be hired, Guyton did not know he had not been selected until he was informed in late October 2012 that Orozco would be the new regional support manager.

The court concludes that Novo Nordisk has not shown as a matter of law that Guyton failed to exhaust his administrative remedies-respecting the failure to promote claims in a timely fashion. The one year period in which to file a DFEH complaint “begins to run when the administrative remedy accrues, which is the occurrence of the unlawful practice.” Holland v. Union Pac. R. Co., 154 Cal.App.4th 940, -945, 65 Cal.Rptr.3d 145 (2007). In this regard, “[t]he California Supreme Court has held that the FEHA statute of limitations begins to run when an--alleged adverse employment action acquires some degree of permanence or finality.” Stewart v. Boeing Co., No. CV. 12-05621, 2013 WL 6839370, *3 (C.D.Cal. Dec. 23, 2013) (citing Yanowitz v. L’Oreal USA; Inc., 36 Cal.4th 1028, 32 Cal.Rptr.3d 436, 116 P.3d 1123 (2005)).

Here, there is evidence from which a reasonable jury could conclude that the adverse employment action — i.e., the.failure to promote Guyton to the regional support manager position — occurred in late October 2012, making his October 4, 2013 administrative complaint timely. Guyton states in his declaration that about five minutes into the , July 2012 interview with Adkins, he “was made to feel that [he] was just being-allowed to go through [the] process for appearance.” Nonetheless, Guyton asserts,- he was not told he-would not be promoted to the pbsition, and he continued to inquire about it through September 2012; Novo Nordisk contends that Guyton’s declaration is inconsistent with his deposition. " At the deposition, Guyton testified that Adkins . “said that [Guyton] wasn’t going to get [the job]” during the interview. At most, however, this deposition testimony implies that Guy-ton knew -that-he would subsequently be denied 'the position. Even if the court considers this version of what transpired at the interview, the one year statute of limitations is triggered not by knowledge that an adverse- employment action will occur in the future, but by the actual occurrence of the adverse action. See Romano, 14 Cal.4th at 493, 59 Cal.Rptr.2d 20, 926 P.2d 1114 (“If the administrative complaint must be filed within one year ‘after' the unlawful practice — here, a discharge— ‘occurred,’ then for the purpose of that complaint, the administrative cause of action must accrue and the statute of limitations must run from the .time of actual termination. It would not run from the earlier date of notification of discharge, because on that date the unlawful practice (that is, the discharge) had riot' yet occurred”).

Because there is evidence that the allegedly discriminatory and retaliatory failure to promote occurred .in late October 2012, when Orozco was hired instead of Guyton, the court declines to grant partial summary judgment on Guyton’s failure to promote claims in Novo Nordisk’s favor on the basis that his DFEH charges was not timely filed. See Gunther v. Xerox Corp., No. 13-cv-04596-HSG, 2015 WL 5769619, *5 (N.D.Cal. Oct. 2, 2015) (agreeing with defendant’s argument that failure to promote claims were untimely “because they achieved a degree of permanence as soqn as someone else was selected for the position in question”). This conclusion is reinforced by the fact that one of the reasons Guyton believes he was a victim of discrimination is that the position was ultimately awarded to a candidate who was. under forty and not African-American. Prior, to Orozco’s selection in late October 2012, of course, Guyton would not have had this information; his lack of knowledge of facts supporting his discrimination claim, in July 2012 further counsels against a finding that the one-year time limit began to run at that time. See Thompson v. C & H Sugar Co., No. 12-cv-00391 NC, 2014 WL 1266804, *4 (N.D.Cal. Mar. 24, 2014) (“This Court has found a denial of a promotion to be a decision that was discrete and permanent when made. But in cases that have found denials of promotion to have permanence, the plaintiff knew or had reason to know that the decision was made based op their status in a protected class, and thus the denial of a promotion was sufficient to trigger an employee’s awareness of and duty to assert his ... rights,” quoting Maridan v. Comcast Cable Comm. Mgmt,, LLC, No, C-12-2109 EMC, 2013 WL 1786592, *11 (N.D.Cal. Apr. 25, 2013));

D. Whether Triable ’ Issues of Fact Remain Concerning Guyton’s Claims that Novo Nordisk Discriminated Against Him on the Basis of Race and Age, and Retaliated Against Him for Protected Conduct

As noted, “[t]h¿ California Supreme Court has adopted the tripartite burden shifting framework established in McDonnell Douglas ... to analyze disparate treatment claims” under FEHA. Lawler v. Montblanc North Am., LLC, 704 F.3d 1235, 1242 (9th Cir.2013); see Guz, 24 Cal.4th at 354, 100 Cal.Rptr.2d 352, 8 P.3d 1089 (“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”). Under the McDonnell Douglas framework, “[t]he plaintiff has the initial burden of establishing a prima facie case of .discrimination [or retaliation]. . Once a prima facie case is shown, a presumption of discrimination [or retaliation] arises and the burden shifts to the defendant to show that the adverse employment action was taken for a legitimate, nondiscriminatory reason. Stating a legitimate, nondiscriminatory reason negates the presumption of discrimination and shifts the burden back to the plaintiff to demonstrate that the proffered reason is mere pretext for discrimination [or retaliation].” Lawler, 704 F.3d at 1242.

In the context of a motion for summary-judgment, the moving party has the burden of showing that there are no triable issues of material fact and that it is entitled to judgment as a matter of law. Dept. of Fair Employment and Housing v. Lucent Techs., Inc., 642 F.3d 728, 745 (9th Cir.2011). To prevail on summary judgment, therefore, Novo Nordisk must either show that Guyton cannot establish one or more elements of a prima facie case, or that there was a legitimate, nondiscriminatory reason for taking the actions it did and Guyton has raised no triable issues concerning pretext.

1. Prima Facie Case

In general, to establish a prima facie case of discrimination under FEHA, a “plaintiff must provide evidence that (1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.” Guz, 24 Cal.4th at 355, 100 Cal.Rptr.2d 352, 8 P.3d 1089.

To state a “prima facie case of retaliation, a plaintiff must show that: (l)[]he was engaging in a protected activity, (2) the employer subjected [him] to an adverse employment decision, and (3) there was a causal link between the protected activity and the employer’s action.” See Xin Liu, 347 F.3d at 1143-44; Yanowitz, 36 Cal.4th at 1042, 32 Cal.Rptr.3d 436, 116 P.3d 1123 (“Past California cases hold that in 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 existed between the protected activity and the employer’s action”); Flait, 3 Cal.App.4th at 476, 4 Cal.Rptr.2d 522 (“the plaintiff must show that he engaged in a protected activity, his employer subjected him to adverse employment action, and there is a causal link between the protected activity and the •employer’s action”).

Guyton alleges that Novo Nordisk discriminated against him because of his race (African-American) and his age (over .forty). For purposes of his prima facie case under McDonnell Douglas, it is undisputed' that he has demonstrated membership in a protected class and satisfied the first prong. See, e.g., Williams v. Edward Apffels Coffee Co., 792 F.2d 1482, 1487 (9th Cir.1986) (noting that an African-American plaintiff over forty years of age alleging discrimination on the basis of race and age was “clearly within a protected group”); Beale v. GTE California, 999 F.Supp. 1312, 1322 (C.D.Cal.1996) (noting that plaintiffs had demonstrated then-membership in a protected class because they were “over the age of forty”).

a. Protected Activity

Novo Nordisk argues that Guyton cannot make out a prima facie case of retaliation because it 'is undisputed that he did not engage in any protected activity. The court disagrees. ' FEHA prohibits retaliation -against an employee because he “has opposed any practices forbidden under ' [FEHA] or because [he] has' filed a complaint, testified, or assisted in any proceeding [relating to a FEHA claim].” Cal. Gov’t Code § 12940(h). To qualify as protected conduct, complaints to ah employer or supervisor must “sufficiently communicate[ ] to [the employer] that [the employee] believe[d] that [the employer’s conduct] was discriminatory.” Yanowitz, 36 Cal.4th 1028, 32 Cal.Rptr.3d 436, 116 P.3d 1123. Although an employee “need not file a formal complaint or use magic words,” “complaints about personal grievances or vague or conclusory remarks that fail to put an employer on notice as to what conduct it should investigáte will nob stif-fice bo esbablish probected conduct” Alcala v. Best Buy Stores, No. EDCV 11-00798, 2012 WL 6138332, *11 (C.D.Cal. Nov. 7, 2012).

Guybon besbified ab his deposition that he communicated to his. supervisor - Sutton that “he felt like she was unfairly treating [him] and-treating [him] different than other people in the district.” Although Guyton concedes he did not specifically reference his age or race, a reasonable trier of fact could conclude, based on his reference to “unfairness” and “difference,” that he was complaining of unlawful discriminatory treatment. See Yanowitz, 36 Cal.4th at 1047, 32 Cal.Rptr.3d 436, 116 P.3d 1123 (“The relevant question is not whether a formal accusation of discrimina-' tion is made but whether the employee’s communications to the employer sufficiently convey the employee’s reasonable concerns that the employer has acted or is acting in an unlawful discriminatory manner,” quoting Garcia-Paz v. Swift Textiles, Inc., 873 F.Supp. 547, 560 (D.Kan.1995)); see also Mathieu v. Norrell Cory., 115 Cal.App.4th 1174, 1187, 10 Cal.Rptr.3d 52 (2004) (“[R]esolving all conflicting inferences in favor of Mathieu, as we must,.we conclude a triable issue of fact exists as to whether Norrell reasonably understood Mathieu’s complaints to raise an issue of sexual harassment and thus, constituted ‘protected activity’ within the meaning of FEHA”).

b. Adverse Employment Action

Novo Nordisk next asserts that Guyton has not demonstrated an adverse employment action to the extent that his discrimination and retaliation claims are baséd on Novo Nordisk’s decision not to award him a transfer. An adterse employment action, of course, is a necessary element of both a prima facie case of discrimination and retaliation. Novo Nordisk argues' that to the extent‘based on the transfer decision, the claims fail because the denial of a transfer is not an adverse employment action. To qualify as adverse employment action sufficient to support a FEHA claim, an employer’s action must “result in a material change in the terms of ... employment, impair [the] employment in some cognizable manner, or show some other employment injury.” Thomas v. Dey’t of Corrections, 77 Cal. App.4th 507, 511, 91 Cal.Rptr.2d 770 (2000). The alleged detriment suffered by the employee must be “material” and “substantial.” Schaffer v. GTE, Inc., 40 Fed.Appx. 552, 555-56 (9th Cir.2002) (Unpub.Disp.); see also Meraz v. Jo-Ann Stores, Inc., No. CV 03-2914 GAF, 2004 WL 882458, *17 (C.D.Cal. Apr. 2, 2004) (“For the adverse employment action to be legally redressable, it must rise to the level of a material adverse action that produces a detrimental and substantial effect”).

Novo Nordisk contends that because Guyton has adduced no evidence that a transfer .to Downey or West Hollywood would have bestowed a material benefit — • such as increased salary or benefits — the denial of the. requests cannot constitute adverse employment action. It is undisputed that Guyton’s transfer requests “were lateral moves within the company [that] would not have resulted in an increase in pay or rank, or any other benefit.” Some courts have held that the denial of a lateral transfer that has no material benefits associated with it cannot form the basis for. an allegation of discrimination or retaliation. See Korban v. State of Cal., 5 F.Supp.2d 843, 847, 853 (C.D.Cal. 1998) (holding, that a denial of a “request for a temporary transfer to the Ventura facility” was not an adverse employment action because it “did not place plaintiff in a worse position, give her additional, fewer[,] or different responsibilities, or result in a loss.of salary or benefits”); Akers v. County of San Diego, 95 Cal.App.4th 1441, 1457, 116 Cal.Rptr.2d 602 (2002) (“[A] transfer into a comparable position does not meet the definition of an adverse employment action under FEHA”).

“[T]he inquiry as to whether an employment action is adverse requires a case-by-case determination,” however. Thomas, 77 Cal.App.4th at 510, 91 Cal.Rptr.2d 770. Furthermore, whát constitutes an adverse employment action “must be interpreted liberally and with a reasonable appreciation of the realities of the workplace in order to afford employees the appropriate and generous protection against employment discrimination [and retaliation] that the FEHA was intended to provide.” Yanowitz, 36 Cal.4th at 1054, 32 Cal.Rptr.3d 436, 116 P.3d 1123. The court concludes triable issues of fact remain as to whether Novo Nordisk’s denial of Guyton’s transfer requests constituted adverse employment action. In his email to Canepa, Guyton communicated his belief that transferring to the Downey territory would benefit him “from a business standpoint” because he had previously developed business relationships with physicians and other HCPs in that location. From this, a jury could thus conclude that the transfer might have improved Guyton’s ability to make sales and facilitated improved work performance; this in turn could-have led to monetary, benefits in the future. Denial of the transfer, therefore, could be viewed.as a material and substantial detriment. See Patten v. Grant Joint Un. High Sch, Dist., 134 Cal.App.4th 1378, 1389-90, 37 Cal.Rptr.3d 113 (2005) (noting that a “lateral” transfer of a principal to a different school was an adverse employment action because the school to which she was transferred “d[id] not present the kinds of administrative, challenges an up-andncoming principal wanting to make her mark would relish”); see also Yanoivitz, 36 Cal.4th at 1054, 32 Cal.Rptr.3d 436, 116 P.3d 1123 (“[FEHA] protects an employee against unlawful discrimination with respect not only to so-called ‘ultimate employment actions’ such as termination or demotion, but also .the entire spectrum of employment, actions that are reasonably likely to adversely and materially affect, an employee’s job performance or opportunity for advancement in his or .her career”). Furthermore,. Guyton stated in his email that family illnesses had made it difficult for him to make the commute to his current office, and that he would be aided by a transfer to Downey, which was closer to his home. Although likely not sufficient on its own to make denial of the transfer an adverse employment action, this added benefit that it would have bestowed reinforces the court’s finding. See Patten, 134 Cal.App.4th at 1390, 37 Cal.Rptr.3d 113 (détermining that a transfer constituted an adverse employment action and noting that the school to which plaintiff was transferred “was a year-round school that conflicted with [plaintiff]’s family schedule”). For these reasons, the court finds that there are triable issues of fact as to whether Novo Nordisk’s denial of Guyton’s transfer requests constituted adverse employment action.

c. Causation

To establish a prima facie case for retaliation, a plaintiff must also adduce evidence that the adverse employment action was a result of his protected activity. Novo Nor-disk argues that Guyton has failed to show causation as a matter of law because he “never complained about the purported discriminatory failure to -transfer, failure to promote, or any 'other purported adverse action to Sutton, Tun, [Adkins,] or human resources.” It further contends Guyton “has no evidence that any of the alleged discriminatory actors here,' namely Sutton, Adkins, or Tun, were ever aware that [Guyton] believed he was suffering discrimination.” As noted, Guyton testified at his deposition that he communicated to Sutton “he felt like she was unfairly treating [him] and treating [him] different than other people in the district.”. As evidence of a lack of causation, Novo Nor-disk appears to rely on its belief that this statement by Guyton was not sufficient to put it on notice that he was complaining of discrimination. For reasons already stated, however, the court finds that triable issues of fact remain as to whether Guy-ton’s conversation with Sutton constituted a form of protected activity. Because Guyton states in his declaration that the conversation took place “about a week or two” before he was placed on .an action plan, the temporal proximity between the protected activity and the adverse employment action is sufficient to give rise to an inference of causation and satisfy Guyton’s burden at the prima facie stage. See Sanchez v. California, 90 F.Supp.3d 1036, 1062 (E.D.Cal.2015) (determining that plaintiff met- her prima facie burden to show retaliation by showing adverse action taken “shortly ... after” she engaged in protected conduct); Adetuyi v. City and Cnty. of San Francisco, 63 F.Supp.3d 1073, 1089 (N.D.Cal.2014) (“It is easier to find a causal connection when the alleged employment action closely follows the protected conduct”).

d. Qualification or Competence

Respecting Guyton’s discrimination claims, Novo Nordisk contends that he has not satisfied the second prong of his, prima facie case — i.e., that he was qualified for his position at the time of the alleged discrimination. It argues that during much of the relevant time — including the date on which it denied Guyton’s request to transfer territories — Guyton “was not in compliance with [its] policies.” A mere finding that an employee has violated company policy is insufficient to establish a lack of satisfactory performance as a matter of law. See Diaz v. Eagle Produce Ltd. Partnership, 521 F.3d 1201, 1208 (9th Cir.2008) (“Diaz, Mancilla, and Moreno have each established a triable issue of fact regarding the second element of the prima facie case., Diaz and Mancilla generally performed dependably and without incident. Deficiencies in their performance were relatively minor and infrequent. The issue is closer for Moreno because he damaged Eagle Produce property three times over the course of approximately four years and once violated a company safety rule, but those incidents were, also relatively infrequent. Moreover, there is no evidence that Moreno caused any of the damage intentionally or recklessly, and his

supervisor generally found him to be dependable”). While it is-true that Guyton was consistently tardy in recording calls and expenditures, the court concludes that Novo Nordisk has not demonstrated that these failures were so severe that they prevent him from establishing a prima fa-cie case; this is especially true given the “minimal proof’ of satisfactory performance required at the prima facie stage. Hauprich v. Fireman’s Fund Ins. Co., No, 13-CV-01609, 2014 WL 3366736, *20 (N.D.Cal. June 26, 2014) (“At the first step of the analysis .., Plaintiff is required to offer only minimal proof that she was qualified for her position”); Villasenor v. Sears, Roebuck & Co., No. CV 09-9147 PSG, 2011 WL 165374, *6 (C.D.Cal. Jan. 18, 2011) (noting “the minimal burden of establishing the second prima facie element”); see also Chuang v. Univ. of Cal. Davis, Bd. of Trustees, 225 F.3d 1115, 1124 (9th Cir.2000) (stating that “the requisite degree of proof necessary to establish a prima facie case ... on summary judgment is minimal,” arid reversing the district court’s finding that plaintiff was not performing satisfactorily). Moreover, because Novo Nordisk’s argument regarding Guyton’s violations of company policy also serves as its nondiscriminatory rationale for taking adverse employment action at step two, the court finds it more appropriate to analyze the issue in that context. See Lynn v. Regents of Univ. of Cal., 656 F.2d 1337, 1345 (9th Cir.1981) (“Under some views of the McDonnell Douglas analytical process, the University’s articulated reason and supporting evidence might be considered at step one of that process, i.e., in connection with plaintiffs prima facie showing that she possesses the requisite qualifications for tenure. We think it preferable, however, to consider the University’s arguments at steps two and three”).

e. Circumstances Suggesting Discriminatory Motive

Novo Nordisk also contends that Guyton cannot satisfy the fourth element of his prima facie case of discrmination— that the circumstances surrounding Novo Nordisk’s adverse actions suggest a discriminatory motive. This argument, which consists of a single paragraph, appears merely to incorporate Novo Nor-disk’s contentions regarding its legitimate, nondiscriminatory reasons. “In a summary judgment motion in an employment discrimination case, the employer as the moving party, has the initial burden to present admissible evidence showing either that one or more elements of plaintiffs prima facie ease is lacking or that the adverse action was- based upon legitimate, nondiscriminatory factors.” Serri v. Santa Clara Univ., 226 Cal.App.4th 830, 861, 172 Cal.Rptr.3d 732 (2014) (quoting Hicks v. KNTV Television, Inc., 160 Cal.App.4th 994, 1003, 73 Cal.Rptr.3d 240 (2008) (emphasis, added)). Novo Nordisk clearly asserts that it had a nondiscriminatory (and nonretaliatory) reason for each action it took. See Chiz, 24 Cal.4th at 380-81, 100 Cal.Rptr.2d 352, 8 P.3d 1089 (“We need not resolve the ‘prima facie burden’ issue, for an alternative analysis disposes of Guz’s cause of action. In its summary judgment' motion, Bechtel did not stand mute, relying solely on the premise that Guz failed to demonstrate a prima facie case of age discrimination. As an additional basis for its motion, Bechtel proceeded directly to the second step, of the McDonnell Douglas formula. Bechtel set forth competent, admissible evidence of its reasons, unrelated to age bias, why. it eliminated Guz’s work unit, BNI-MI, and thereafter chose persons other than .Guz for vacant positions in the unit to which BNI-MI’s functions were transferred”). For that reason, the court proceeds to analyze the second and third steps of .the McDonnell Douglas test.

2. Whether Novo Nordisk Has Proffered Evidence of a Legitimate, . Nondiscriminatory and Nonretalia-tory Reason for the Adverse, Employment Actions

The court next addresses .whether Novo Nordisk has met its burden under McDonnell Douglas. “Tp meet this burden, ‘the defendant must clearly set forth, through the introduction of admissible evidence,’ reasons for its employment decision which, if believed by the trier of fact, would support a finding that the employment action was not a result of unlawful discrimination” or retaliation. Noyes v. Kelly Servs., 488 F.3d 1163, 1169 (9th Cir. 2007) (quoting Texas Dep’t of Crnty. Affairs v. Burdine, 450 U.S. 248, 255, 101 S.Ct. 1089; 67 L.Ed.2d 207 (1981)). Novo Nordisk argues it had a legitimate, nondiscriminatory and nonretaliatory reason for both sets of adverse employment actions asserted. As for its failure to promote Guyton, it argues and adduces admissible evidence that Guyton “showed up to the interview unprepared and did not demonstrate the requisite job competencies.” As for its failure,to grant Guyton’s transfer requests, Novo Nordisk argues and adduces admissible evidence that granting the request would have violated. Novo Nor-disk’s policy of declining the transfer request of any employee on an action plan or performance improvement plan. This evidence satisfies'Novo Nordisk’s burden of proffering admissible evidence of a legitimate, nondiscriminatory and nonretaliato-ry reason for failing to promote Guyton and failing to transfer him. See Obico v. Mission Creek Sr. Comm., No. C 11-03932 JSW, 2013 WL 622937, *6 (N.D.Cal. Feb. 15, 2013) (“Mr. Obico contends that Mercy has not met its burden, because it has not presented admissible evidence in support of its reasons for terminating Mr. Obico. However, Mercy has put, forth evidence that it terminated Mr. Obico, because its employees believed he had attempted to steal Mr. Heatley’s property and had not been truthful during the investigation. That evidencé is admissible and, if believed by the trier of fact, would support a finding that the decision to terminate Mr. Obi-co was not the result of unlawful discrimination” (emphasis original)); see also Noyes, 488 F.3d at 1169 n. 4 (noting that the defendant’s burden at this stage is not to convince the trier of fact that the proffered reason was legitimate, but rather “to articulate a legitimate, nondiscriminatory reason for the failure to promote” plaintiff).

3. Whether Guyton Has Raised Triable Issues of Fact Concerning Pretext

Because Nono Nordisk “satisfied its burden [of] articulat[ing] a nondiscriminatory [and nonretaliatory] reason for its promotion decision [and for its decision not to transfer Guyton], the burden shift[s] back to [Guyton] to come forward with evidence that the proffered reasons were a pretext, for discrimination.”. Id. (citing McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817). This shift does not place a new burden of production on plaintiff. Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1194 (9th Cir.2003), amended, — F.3d --, 2003 WL 21027351 (9th Cir.2003). Rather, “the factfinder may'infer ‘the ultimate fact of intentional discrimination’ [or retaliation] without additional proof once the plaintiff has made out her prima facie case if the factfinder rejects the employer’s proffered nondiscriminatory reasons as unbelievable.” Id.

“[Á] 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.” Noyes, 488 F.3d at 1170 (quoting Chuang, 225 F.3d at 1127 (emphasis original)); Guz, 24 Cal.4th at 363, 100 Cal.Rptr.2d 352, 8 P.3d 1089 (“[I]n an appropriate case, an inference of dissembling may arise where the employer has given shifting, contradictory, implausible, uninformed, or factually baseless justifications for its actions”). If plaintiff relies on. circumstantial evidence to make this showing, that evidence must be “specific” and “substantial.” Dep’t of Fair Emp’t & Hous. v. Lucent Techs., Inc., 642 F.3d 728, 746 (9th Cir.2011) (quoting Godwin, 150 F.3d at 1221). An employee cannot meet his burden by simply showing that the employer’s decision was “wrong, mistaken, or unwise.” Id. (quoting Morgan v. Regents of the Univ. of Cal., 88 Cal.App.4th 52, 75, 105 Cal.Rptr.2d 652 (2000)). “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 ... non-discriminatory reasons.” Id. (quoting Morgan, 88 Cal. App.4th at 75, 105 Cal.Rptr.2d 652).. “All of the evidence [concerning pretext]— whether direct or indirect — is to be considered cumulatively.” Raad, 323 F.3d at 1194.

Novo Nordisk contends that Guyton cannot raise triable issues of. fact concerning pretext. None of the evidence Guyton proffers is direct; it is all circumstantial. Guyton argues that, for various reasons, Novo Nordisk’s reasons for both its failure to promote and its failure to transfer were pretextual.

a. Failure to Promote

As respects the promotion claim, Guyton contends first that Novo Nordisk’s asserted nondiseriminatory and nonretalia-tory rationale — that Guyton had a poor interview — was pretextual, because both Guyton and another unsuccessful candidate, Christine Maas (also over the age of forty), had “superior qualifications” to Or-ozco, who was eventually offered the position. “The Ninth Circuit has stated that a plaintiff’s superior qualifications standing alone are enough to prove pretext” for purposes of avoiding summary judgment. Finley v. County of Martin, No. C-07-5922 EMC, 2009 WL 5062326, *5 (N.D.Cal. 2009) (citing Raad, 323 F.3d at 1194). Although the Fifth Circuit requires disparities between candidates to be “so apparent as to virtually jump off the page and slap us in the facé” before they will support a finding of pretext, see Odom v. Frank, 3 F.3d 839, 847 (5th Cir.1993), the Ninth Circuit has not adopted such a restrictive approach. Raad, 323 F.3d at 1194 (noting that the Ninth Circuit “ha[s] never followed the Fifth Circuit” in this “regard” (emphasis original))^ Nonetheless, there must be at least a “pronounced difference” between plaintiff’s and the successful candidate’s' qualifications “in order for a plaintiff to survive summary judgment.” Finley, 2009 WL 5062326 at *5 (citing Raad).

The evidence Guyton offers as proof that he and Maas had qualifications superior to Orozco’s is solely in the form of his declaration. There, Guyton states that Orozco holds a' Bachelors of Science degree from California Polytechnic State University, and that his degree is in “Animal Science Business Management/International Marketing.” He also states that Maas has a Bachelors of Arts in Business Administra- . tion and a Masters Degree in Healthcare Administration, although he does not identify the institution from which she received either degree. Guyton does not state how he possesses this information. Guyton asserts that líe has a Master’s Degree in Business Administration from the University of Southern California. Presented with only this evidence, the court cannot conclude that there is a “pronounced” difference between the candidates such that offering to Orozco and not to Guyton or Maas raises an inference of pretext. First, the fact that Orozco has only a Bachelor’s degree, while Guyton and Masa have Master’s degrees is not particularly probative, given that there is no evidence Novo Nor disk considered educational background an important or even relevant factor in selecting a regional support manager. See Finley, 2009 WL 5062326 at *6 (“Mr. Finley argues that there is also a pronounced difference in qualifications because he, unlike Ms. Grant, has a bachelor’s degree.... The Court notes that Mr. Finley has produced no evidence that the decisionmakers in fact believed that a bachelor’s degree was required. At bottom, to establish pretext, Mr. Finley would have to demonstrate a discriminatory motive. If the decisionmakers held an honest, good faith belief that a degree was not a prerequisite, even if legally or factually mistaken, such an error would not establish or imply a discriminatory motive.... Accordingly, for the reasons stated above, Mr. Finley has failed to create a genuine dispute of material fact on pretext based on the issue of qualifications”).

When looking to the qualifications which — according to undisputed evidence — were actually considered important, Guyton has failed to adduce any evidence of pretext. Adkins, who was solely responsible for the promotion decision, indicated that the principal qualifications for the position were knowledge of the job duties and ability to offer specific examples as to how the candidate would carry out the job duties. He also indicated that the position required competency in quantitative analytics. Adkins states that he did. nob hire Guyton. because Guyton asked “rudimentary questions” which suggested that he did not understand the requirements of the position. He further stated that the only examples Guyton provided reflected his level of competence as a sales representative, and did not explain- how those competencies would translate to the more analytic position of regional support manager. Guyton proffers no evidence that he did not ask rudimentary questions at the beginning of the interview; in fact, in his deposition he states that he did ask questions that would likely be considered rudimentary. He testified:

Q: So let’s go back to the interview. Did you ask any questions in the • interview?

A: Yes.

Q: • Okay. What was — Do you. recall what the first questions you asked Mr. Adkins were?-

A: I don’t remember the exact questions. I just said, you know, what are you looking for, what makes you qualified for this position, what would make someone successful, those types of questions.

This testimony corroborates Adkins’ feeling that “the meeting had shifted from a job interview to an informational interview.” Moreover, Guyton has adduced no evidence that he discussed any of his analytic skills, or any non-sales related skills, during the interview; at his deposition, in fact, he admitted that he focused principally on his sales experience. It might well be the case — although Guyton has offered no concrete evidence to this effect — that Guyton did possess analytic skills; he has adduced no evidence, however, that he communicated this fact to Adkins, who was the individual making.the promotion decision. As noted, the relevant question is not whether the employer’s decision was erroneous, but rather whether it was discriminatory or retaliatory. See Serri, 226 Cal.App.4th at ,863,172 Cal.Rptr.3d 732 (“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,” quoting Hersant v. Dept. of Social Servs., 57 Cal.App.4th 997, 1005, 67 Cal.Rptr.2d 483 (1997)); Obico, 2013 WL 622937 at *6 (“[Although Mr: Obico strongly denies Mercy’s version "of events, that is not the proper focus. ’It is not important whether [Mercy’s reasons] were objectively false____ Rather, courts only require that an employer honestly believed its reason for its actions, even if its reason is foolish or trivial or even baseless,” quoting Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1063 (9th Cir. 2002) (emphasis and alterations original)).

Guyton counters that Novo Nordisk’s analytics-experience versus sales-experience explanation of the promotion decision is pretextual. Specifically, he argues that Orozco “also relied on his sales experience; that reliance was embraced by the company.” Evidence that Novo Nordisk viewed a particular interview strategy as a positive for an under-forty non-African-American candidate — while viewing it as a negative for Guyton — could indeed be evidence that the claimed nondiscriminatory, nonretaliatory rationale was pretextual. The argument Guyton makes, however, is not supported by facts in the record. For the proposition that Noyo Nordisk- “embraced” Orozco’s reference to his sales experience, Guyton cites Adkins’ declaration. The relevant portion of that declaration states:

“The other candidate, whom I ultimately hired for the RSM role, self-identified as Hispanic and was' also under the age of 40. As a threshold matter, this candidate demonstrated a high levél of knowledge about the requirements of the RSM role. Critically, he also impressed me with specific concrete examples of how he had applied his analytic skills to drive sales both in his territory as well as in collaboration with his partners in other territories. It was clear to me that, not only did this candidate possess the advanced analytical skills needed to identify trends, but he was also able to interpret those trends and -devise creative solutions and planning to drive sales, which was critical to the success of an RSM.”

Read in context, the evidence Guyton cites does not demonstrate that Adkins was impressed with or relied on Orozco’s sales experience qua sales experience; rather, Adkins states he was impressed with the way in which Orozco referenced his use of analytic skills and data interpretation to increase sales in his territory. As a result, the purported “inconsistency” identified by Guyton does not raise triable issues concerning the fact that Novo Nor-disk’s desire to hire an analytics-focused regional support manager was a pretext for discrimination or retaliation. See Guz, 24 Cal.4th at 363, 366, 100 Cal.Rptr.2d 352, 8 P.3d 1089 (“The authorities suggest that, in an