Opinion
H035734
12-02-2011
LIXZAIDA ASURMENDI, Plaintiff and Appellant, v. TYCO ELECTRONICS CORPORATION et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. CV127744)
After her employment was terminated, plaintiff Lixzaida Asurmendi brought an action against defendants Tyco Electronics Corporation (Tyco) and Carol Sagastume for violations of the Fair Employment and Housing Act (Gov. Code, § 12940) (FEHA), wrongful discharge in violation of public policy, breach of employment agreement, and intentional infliction of emotional distress. The trial court granted defendants' motion for summary judgment and entered judgment in favor of defendants. We affirm the judgment.
I. Procedural and Factual Background
A. Complaint
In November 2008, plaintiff filed her complaint for age discrimination, harassment, retaliation, wrongful discharge in violation of public policy, breach of employment agreement, and intentional infliction of emotional distress. Tyco was named as a defendant in all causes of action, while Sagastume was named as a defendant only in the harassment and intentional infliction of emotional distress causes of action. Plaintiff, who was over 60 years old, alleged that her performance reviews were consistently positive, but defendants decided sometime in late 2003 or early 2004 that she "had become too old." Sagastume, who was plaintiff's supervisor and several years younger than plaintiff, would criticize her for "doing things 'the old fashioned way,' " and transferred some of plaintiff's work to younger employees in 2006 and 2007. Though plaintiff complained to Tyco's human resources department (HRD) and its "ConcernLine," little was done to stop the harassment. In 2007, plaintiff's employment was terminated while three younger employees, who had significantly less experience than plaintiff, retained their positions.
Plaintiff alleged that Tyco discriminated against her based on her age by terminating her employment, by failing to comply with Tyco's progressive discipline procedure, by denying her right to interview for other open positions, and by denying her the right to participate in training to improve her job skills. Based on these allegations, plaintiff also alleged that Tyco harassed her based on her age and breached the employment agreement. Plaintiff further alleged that Sagastume personally harassed her and that defendants retaliated against her for complaining to the HRD and the ConcernLine regarding age discrimination.
B. Summary Judgment Motion
In January 2010, defendants brought a motion for summary judgment or, alternatively, summary adjudication. Defendants argued that they were entitled to judgment in their favor as a matter of law. They asserted that the evidence was undisputed that: (1) Tyco's ongoing transfer of operations reduced the workload at its Menlo Park facility, thereby constituting a legitimate, nondiscriminatory reason for terminating plaintiff's employment; (2) plaintiff's harassment claim was based solely on personnel decisions and evaluations of her job performance; (3) there was no causal link between termination of plaintiff's employment and her engagement in protected activity; (4) plaintiff was an at-will employee and her employment could be terminated for any reason; and (5) defendants did not intentionally engage in extreme and outrageous behavior resulting in severe emotional distress.
To support their summary judgment motion, defendants presented the following facts. Tyco designs, manufactures, and markets electronic components, network solutions, and wireless systems in over 150 countries. All Tyco employees are at will, and their employment can be terminated at any time for any reason. In 1968, plaintiff began working at Raychem Corporation, which was acquired by Tyco in 1999. Though plaintiff began working in a manufacturing role, she was eventually promoted to the nonproduction position of planner in the Internal Connection Devices (ICD) group at Tyco's facility in Menlo Park. Plaintiff's duties included planning and organizing the purchase of raw materials and operating supplies for the manufacturing plant. To perform these tasks, the planners in the ICD group were required to use various software programs, including SAP. SAP was implemented in 1999.
In order to reduce costs, Tyco made the decision to transfer certain operations each year to Mexico. In 2001, Tyco transferred MTC Crimp Connectors. In 2002, it transferred Molded Parts Secondary/Finishing Operations and Databus PWB (sub-assembly). In 2003, Databus Harness (Saab) was transferred. In 2004, Tyco transferred Databus Harness (lightweight).
Meanwhile, in 2002, Sagastume became a planning supervisor for the ICD group at Tyco. Shortly thereafter, she discovered that plaintiff was continuing to use older, outdated methods to perform her work, including the Basics system. The Basics system involved time-consuming written notations and manually-created spreadsheets that were no longer necessary with SAP. Plaintiff's resistance to using SAP resulted in overdue work, thereby causing customer and supplier problems.
In November 2004, plaintiff called Lynne Pereira, a manager in the HRD at the Menlo Park facility, and claimed that Sagastume wanted to "shove her out" because she was an " 'old timer.' " Plaintiff also stated that Sagastume had instructed her to do things differently than previous managers had, and that her feelings were hurt by Sagastume's criticisms of her job performance. During her investigation of plaintiff's complaints, Pereira spoke with Sagastume. Sagastume explained that plaintiff insisted on using older, outdated planning methods to perform her duties, and she indicated that she was willing to help plaintiff improve her work performance. Sagastume also stated that her use of the word "old" only referred to plaintiff's insistence on using the outdated "methods to perform her job duties."
In December 2004, plaintiff called Tyco's ConcernLine and made an age discrimination complaint. Pereira continued to talk with plaintiff over the next few months and referred her to the employee assistance program for counseling.
In April 2005, Sagastume sent an e-mail to plaintiff and another ICD planner, Fernando Magallanes, in which she stated: "We have to stop planning the old way." Plaintiff could not recall how many times Sagastume told her to use SAP, but she agreed that she should have used this software program more frequently in performing her job duties.
Tyco continued to transfer its operations from Menlo Park to other locations. In 2005 and 2006, Tyco transferred Molded Parts Primary/Molding Operations. In 2007, Tyco transferred Databus Connectors. Due to these transfers, William Timothy McKinley, Tyco's director of operations, recognized that the workload for the Molded Parts and ICD groups would continue to decrease in 2006 and 2007. In December 2006 or January 2007, McKinley directed Pereira to inform the supervisors in the affected groups to rank their employees to determine who would be laid off as the workload continued to decrease. At that time, McKinley did not know when the reduction-in-force (RIF) in these groups would occur.
In early 2007, Pereira directed Sagastume to rank employees, including ICD planners, using a standard company form. At that time, the ICD planners were plaintiff, Martha Arteaga, Lincoln Loving, and Magallanes. Sagastume ranked each employee in five categories: technical skills, accountability, teamwork, communication, and years of service. Plaintiff was the lowest ranked employee in the ICD group. Sagastume submitted the ranking information to Pereira and Dave Williams, the director of materials management and logistics and Sagastume's supervisor.
After the rankings of plaintiff and the other planners were completed, plaintiff called the ConcernLine on May 22, 2007, to complain about age discrimination and harassment. When Pereira spoke with plaintiff, she did not make any specific complaints but claimed that she was being picked on and targeted for termination due to her age. Sagastume told Pereira that she was trying to counsel plaintiff on her ongoing performance problems. Pereira was unable to substantiate any of the complaints that plaintiff made to the ConcernLine in May 2007.
In early November 2007, Tyco decided to terminate plaintiff's employment. Pereira told Sagastume not to give plaintiff any advance notice that her employment had been selected for termination. On November 15, 2007, Williams and Pereira met with plaintiff and told her that she would be laid off due to the transfer of operations to Mexico. Pereira told plaintiff at least twice during the meeting that she was free to apply for any open, available position and offered to assist her with the application. Pereira also gave plaintiff her personal contact information. According to Pereira, Tyco employees who are subject to a RIF can apply for any position, but management can only place them in a comparable position. Plaintiff never applied for any position with Tyco after her employment was terminated.
Tyco continued to transfer operations from the Menlo Park facility after plaintiff's employment was terminated. In 2008, Databus Harness (all remaining but Space) was transferred. In 2009, Tyco transferred MTC Solder & Boxmount Connectors and Databus Harness (Space). In 2010, Tyco transferred Databus Harnesses for Space Applications to Pennsylvania and MTC Soldier Connectors and Boxmount Connectors to Mexico. Tyco eliminated over 40 positions after 2007 due to the transfer of operations. All positions for ICD planners were eliminated at the Menlo Park facility. In December 2008, 51-year-old Magallanes' employment was terminated due to the RIF. Fifty-year-old Arteaga's employment was scheduled to be terminated due to the RIF, but she applied for and obtained a position in another division. When she left her planner position in late 2009, it was eliminated. Loving's employment was scheduled to be terminated in February 2010 due to the RIF.
C. Summary Judgment Opposition
Plaintiff filed opposition to the motion for summary judgment, or alternatively, summary adjudication. She argued that defendant failed to establish a legitimate business reason for the termination of her employment. Noting that there were over 100 open positions at Tyco's Menlo Park and Redwood City facilities in the three months preceding and following her termination, she asserted that she was the only employee subject to the RIF because she had pursued an age discrimination claim with Tyco. She further claimed that Tyco failed to transfer her to one of the two planner positions that became open in Redwood City in January and February 2008.
Plaintiff submitted a declaration in which she stated that she complained to Pereira in fall 2004 that Sagastume was critical of the way that she was performing her job and she "felt harassed every day." In late December 2004 or early January 2005, she made an age discrimination complaint to the ConcernLine. However, no action was taken to correct the age discrimination. In 2005, Sagastume transferred some of plaintiff's work to her younger coworker, Magallanes. In May 2007, Sagastume transferred some of plaintiff's work to another younger coworker, Loving, because he did not have enough work. Plaintiff contacted the ConcernLine and stated that she wanted to be "treated with dignity and respect before [she] retired from Tyco." According to plaintiff, Sagastume told her three or four times that she was performing her work in the "old-fashioned way." Pereira conducted an investigation, and concluded that the claims were unsubstantiated.
Plaintiff also submitted excerpts from her personnel file that documented her favorable performance reviews. She noted that her performance review in February 2007 indicated that she "meets expectations" but later that month her performance was rated below "meets expectations" in three of the four categories listed on the RIF rating form.
After plaintiff received an e-mail from Williams to attend a meeting, she asked Sagastume about the purpose of the meeting. Sagastume told her that it was "probably . . . about molding." However, when plaintiff met with Williams, he told her that Tyco was "reducing personnel," she did not "have the skill for the future business," and he had "to let her go." Plaintiff responded, " 'I never dreamed this. I am in shock. Can you guy[s] give me the opportunity to be transferred to another department, to apply [for] any kind of job [so] that I don't lose my job?' And he said, 'No.' " Though there were open production positions, plaintiff was not transferred to one of these positions.
According to plaintiff, Tyco has not consistently followed its unwritten policy that precluded transfers of employees to subordinate positions. In 2002, planner Delfina Bravo, who was younger than plaintiff, was selected for a RIF. Bravo was then offered the opportunity to transfer to a lead manufacturing position, but she decided not to accept the transfer. In January 2008, plaintiff's counsel sent a letter to Tyco, which requested reinstatement to a consulting position. She was not reinstated, and Tyco never informed her that there were open planner positions in Redwood City in January and February 2008.
Neither Pereira nor Sagastume knew of any other employee at the Menlo Park facility who lost his or her job because of the RIF in 2007. However, McKinley explained that nine positions were eliminated in the 2007 RIF, but plaintiff was the only one affected because the other eight employees found other positions with Tyco.
Plaintiff learned that her job responsibilities were distributed to Arteaga and Sagastume after her employment was terminated.
Plaintiff also submitted an e-mail, dated November 9, 2007, from Robert Ferrick, a manager in the HRD, in which he refers to the termination of her employment as a "One Off RIF Action."
D. Defendants' Reply
Defendants submitted a declaration by Ferrick. He explained that he used the term "One Off RIF Action" in the November 9, 2007 e-mail "to advise the individuals responsible for processing [plaintiff's] layoff that they did not need to include statistical information regarding other affected employees since [plaintiff] was the only individual in Menlo Park, CA scheduled to be laid off the week of November 12, 2007. My use of the term 'One Off RIF Action' did not indicate or infer that [plaintiff] was the only employee affected by the RIF. In fact, Tyco Electronic employees in Menlo Park, CA were laid off both before and after [plaintiff's] layoff as part of the same, gradual ongoing RIF."
E. Trial Court's Ruling
The trial court found that defendants met their burden to show a legitimate, nondiscriminatory reason for the termination of plaintiff's employment, and that this process began in 2001 and continued to the present. The trial court rejected plaintiff's argument that Sagastume's RIF rating of her and Tyco's refusal to transfer her to a lower production position demonstrated that Tyco's legitimate, nondiscriminatory reason for their termination of her employment was a pretext for discrimination. The trial court also found that the references to "the old way" were not evidence of discriminatory intent. Thus, the trial court granted summary adjudication of the age discrimination cause of action. For the same reasons, the trial court granted summary adjudication of the retaliation and wrongful discharge in violation of public policy causes of action. The trial court also found that plaintiff had failed to present sufficient evidence that "her workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of her employment," and granted the motion for summary adjudication of the harassment cause of action. Moreover, the trial court granted summary adjudication of the intentional infliction of emotional distress cause of action, because this cause of action was dependent upon the other causes of action. The trial court further found that plaintiff had failed to present evidence that the parties had agreed that Tyco's power to terminate was limited in any way, and thus granted the motion for summary adjudication of the breach of the employment agreement cause of action.
II. Discussion
A. FEHA Claims
FEHA prohibits an employer from discrimination, harassment, and retaliation based on an employee's age. (Gov. Code, § 12940, subds. (a), (h), (j).) In California, courts employ the three-prong test that was established in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 to resolve FEHA claims. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 (Guz).) First, the employee must establish a prima facie case. (Ibid.) The employee "must at least show ' "actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were 'based on a [prohibited] discriminatory criterion . . . .' [Citation]." [Citation.]' " (Id. at p. 355.) In order to establish a prima facie case of discrimination, an employee must show: she "was a member of a protected class"; she "was qualified for the position [she] sought or was performing competently in the position [she] held"; she "suffered an adverse employment action, such as termination, demotion, or denial of an available job"; and "some other circumstance suggests discriminatory motive." (Ibid.) An employee proves a prima facie case of harassment when: she was subjected to hostile or abusive conduct or comments at work; the conduct or comments were severe enough or sufficiently pervasive to alter the conditions of her employment and to create a hostile or abusive work environment; and the conduct or comments were made because of her age. (Reno v. Baird (1998) 18 Cal.4th 640, 646-647 (Reno).) An employee establishes a prima facie case of retaliation when: she was engaged in a protected activity; the employer subjected her to an adverse employment action; and there is a causal link between the protected activity and the employer's action. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)
Once the employee satisfies this initial burden, the burden then shifts to the employer to show that its action was motivated by legitimate, nondiscriminatory reasons. (Guz, supra, 24 Cal.4th at pp. 355-356; Jones v. Department of Corrections & Rehabilitation (2007) 152 Cal.App.4th 1367, 1379-1380.) If the employer meets this burden, the employee then must show that the employer's reasons for the adverse employment action were untrue or pretexts for discrimination, or produce other evidence of intentional discrimination. (Guz, at p. 356.)
B. Summary Judgment in FEHA Cases
When an employer brings a motion for summary judgment in a case brought under FEHA, and the employer "presents admissible evidence either that one or more of plaintiff's prima facie elements is lacking, or that the adverse employment action was based on legitimate, nondiscriminatory factors, the employer will be entitled to summary judgment unless the plaintiff produces admissible evidence which raises a triable issue of fact material to the defendant's showing." (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203.) After the employer meets its burden in the summary judgment motion, "the employee must demonstrate a triable issue by producing substantial evidence that the employer's stated reasons were untrue or pretextual, or that the employer acted with discriminatory animus, such that a reasonable trier of fact could conclude that the employer engaged in intentional discrimination or other unlawful action." (Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1038.) "To determine whether triable issues of fact do exist, we independently review the record that was before the trial court when it ruled on defendants' motion. [Citations.] In so doing, we view the evidence in the light most favorable to plaintiffs as the losing parties, resolving evidentiary doubts and ambiguities in their favor. [Citation.]" (Martinez v. Combs (2010) 49 Cal.4th 35, 68.)
C. Age Discrimination Claim
Plaintiff contends that the trial court erred by granting the motion for summary judgment because she carried her burden of showing the existence of triable issues of material fact.
Plaintiff first challenges the trial court's finding that "criticism of a 64-year-old worker for performing tasks 'the old way' or 'the old-fashioned way' evidences no discriminatory intent." The trial court concluded that "the term 'old' may be defined as former, and such usage does not have any connotation to age, other than it is something used previously." Plaintiff acknowledges that "old" may be defined as "former," but asserts that "the primary dictionary definitions indicate that the word 'old' specifically references 'age.' " Relying on the definition of "old" in www.dictionary.com, plaintiff also notes that "former" is the 28th and last definition of "old." However, plaintiff has ignored the context in which the references to "old way" and "old-fashioned way" were made in the present case. Here, plaintiff conceded that she should have used the newer SAP program more frequently than she did. Because she failed to do so, Sagastume criticized her performance several times as the "old way" or the "old-fashioned way." Thus, taken in context, the references were to plaintiff's insistence on using outdated methods of performing her duties. Moreover, Sagastume criticized one of plaintiff's younger colleagues for the same reason. There was also no evidence that Sagastume, or any other Tyco employee, referred to plaintiff as "old." Under these circumstances, the comments were not evidence of age discrimination.
Nor do the cases upon which plaintiff relies support her position. Siegel v. Alpha Wire Corp. (3rd Cir. 1990) 894 F.2d 50 found sufficient evidence of age discrimination to withstand a summary judgment motion when the employer used the phrase " 'old dogs won't hunt' " more than once, the plaintiff had received positive evaluations, and the employer provided business reasons for the plaintiff's termination only after she filed suit. (Id. at p. 55.) In that case, the reference to "old dogs" indicated that the employer believed that older employees were incapable of performing their jobs. Here, directing plaintiff to stop performing her job in the "old" or "old-fashioned" way indicated that Sagastume believed that plaintiff was capable of performing her job in the newer, more efficient way.
Because state and federal discrimination statutes are similar, California courts consider federal precedent when applying state statutes. (Guz, supra, 24 Cal.4th at p. 354.)
Ramirez v. Allright Parking El Paso, Inc. (5th Cir. 1992) 970 F.2d 1372 held that there was sufficient evidence of age discrimination when the employer stated that he was going to " 'retire the older employees,' " considered the plaintiff to be " 'less energetic' " and " 'less motivated' " than other employees, and replaced the plaintiff with a younger employee. (Id. at p. 1377.) In contrast to Ramirez, here, the challenged comments did not reflect an intent to terminate plaintiff based on her age or refer to her personal characteristics.
In Meschino v. Intern. Tel. and Tel. Corp. (S.D.N.Y. 1983) 563 F.Supp.1066, the employer referred to the plaintiff as " 'a sleepy kind of guy, droopy with no pizzazz,' " and " 'old and tired,' " and stated that "managers 'had to bring [in] younger blood, younger executives, change the mix.' " (Id. at p. 1071.) Unlike in Meschino, here, there were neither stereotypical references to older individuals nor stated preferences for younger employees.
Plaintiff also argues that if an employer criticized "a Mexican worker for performing work the 'Mexican way,' or criticize[d] a disabled worker for performing work the 'handicapped way,' the discriminatory intent of the comment would be evident." Plaintiff's analogy to the present case is not persuasive. Here, the evidence established that "old way" and "old-fashioned way" were not used pejoratively but instead referred to plaintiff's use of an older, outdated software program that created problems for Tyco's clients and suppliers.
Plaintiff next claims that the trial court erroneously concluded that the " 'old way' and 'old fashioned way' evidence is irrelevant based upon 'stray remark' cases." (Caps. & boldface omitted.)
Reid v. Google (2010) 50 Cal.4th 512 (Reid) recently observed that under the stray remarks doctrine "federal circuit courts deem irrelevant any remarks made by nondecisionmaking coworkers or remarks made by decisionmaking supervisors outside of the decisional process, and such stray [discriminatory] remarks are insufficient to withstand summary judgment. [Citations.]" (Id. at p. 537.) Reid held that the doctrine is inapplicable in age discrimination cases, explaining that "[a]lthough stray remarks may not have strong probative value when viewed in isolation, they may corroborate direct evidence of discrimination or gain significance in conjunction with other circumstantial evidence. Certainly, who made the comments, when they were made in relation to the adverse employment decision, and in what context they were made are all factors that should be considered. Thus, a trial court must review and base its summary judgment determination on the totality of evidence in the record, including any relevant discriminatory remarks." (Id. at pp. 517, 541.)
Here, relying on three stray remark cases, Nesbit v. Pepsico, Inc. (9th Cir. 1993) 994 F.2d 703, 705, Nidds v. Schindler Elevator Corp. (9th Cir. 1996) 113 F.3d 912, 918-919, and Cerutti v. BASF Corp. (7th Cir. 2003) 349 F.3d 1055, 1062-1063, the trial court found that "[p]laintiff does not demonstrate that the statements related directly or indirectly to her termination." However, the trial court did not deem the alleged discriminatory comments irrelevant. Instead, the trial court expressly considered the context of Sagastume's comments and when they were made in relation to the termination of plaintiff's employment, and concluded that one could not reasonably infer discriminatory intent. Thus, the trial court did not err.
Reid, supra, 50 Cal.4th 512 was decided after the trial court's order granting defendants' motion for summary judgment.
Plaintiff also argues that the trial court improperly weighed the evidence by finding that "the fact that Sagastume did not tell plaintiff the true purpose of the termination meeting is not indicative of discrimination." We disagree.
Here, Pereira directed Sagastume not to tell plaintiff that her employment was going to be terminated. When plaintiff asked Sagastume about the purpose of the meeting with Williams, Sagastume lied and told her that it was "probably . . . about molding." Plaintiff fails to explain how this lie by Sagastume is evidence of discrimination, and her reliance on Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th 1088 is misplaced. In Kelly, when the plaintiff asked her employer to explain her termination, he lied by denying that her supervisor had placed her on a list of employees to be retained. The appellate court reasoned that a finding that the employer was not telling the truth "could give rise to an inference that 'the employer [wa]s dissembling to cover up a discriminatory purpose.' [Citation.]" (Id. at p. 1099.) In contrast to Kelly, here, Sagastume's lie was unrelated to any attempt to prevent plaintiff from learning how she had been evaluated during the RIF ranking process. It was the responsibility of Williams and Pereira, not Sagastume, to inform plaintiff of her employment termination and how that decision was reached. Had Sagastume lied about the rankings of the ICD group, an inference could have been drawn that Tyco was attempting to cover up its discriminatory motive. That Sagastume lied about the purpose of the meeting was irrelevant to the issue of whether Tyco discriminated against plaintiff based on her age.
Plaintiff next challenges the trial court's finding that there was no causal connection between her protected activity and the termination of her employment.
The trial court found: "Further, Defendants demonstrate that there is no causal connection between Plaintiff's alleged protected activity and the employer's termination of Plaintiff since it is undisputed that Sagastume's RIF rankings were completed in February 2007, prior to Plaintiff's complaint to the Tyco ConcernLine in May 2007, and that Sagastume was unaware that Plaintiff had lodged any complaints related to age discrimination until two months prior to Plaintiff's termination in November 2007."
Plaintiff argues that the termination of her employment without placement in any of Tyco's open positions was the adverse employment action, which occurred six months after her May 2007 age discrimination complaint.
Gibbs v. Consolidated Services (2003) 111 Cal.App.4th 794 (Gibbs) rejected a similar argument. In Gibbs, the plaintiff brought an action for age discrimination, wrongful termination, and intentional infliction of emotional distress, and the trial court granted the employer's motion for summary judgment. (Id. at pp. 796-797.) In 1992, the plaintiff was promoted from a driver to an operations manager. (Id. at p. 797.) After the company was restructured in 1999, the plaintiff's supervisor told him that he lacked the skills to continue as an operations manager and terminated his employment. (Id. at p. 798.) In response, the plaintiff asked for a driver's position. (Ibid.) His supervisor stated that there were no such positions even though a driver's position did exist. (Ibid.) The plaintiff argued that the employer's reason for terminating him was a pretext for age discrimination because the employer failed to give him a position as a driver. (Id. at p. 800.) The appellate court rejected this argument, stating that "[w]hen an employer modifies its workforce for business reasons, it has no obligation to transfer an employee to another position within the company. [Citations.]" (Ibid.) Similarly, here, Tyco had no obligation to transfer plaintiff to another position after her employment was terminated. Thus, the failure to transfer plaintiff was not an adverse employment action and could not have been retaliation for her May 2007 age discrimination complaint.
Plaintiff contends, however, that there was no evidence that "Tyco was powerless to review or revise the February 2007 RIF rankings once drafted" or "to delay the RIF by two months while the two open planner positions opened up." There is no merit to this argument. In December 2006 or January 2007, the decision was made to rank employees in the ICD group for purposes of the RIF. Sagastume then ranked these employees in early 2007. Plaintiff has failed to cite any legal authority, and this court has found none, that would have required Tyco to either revise or delay its process for implementation of the RIF because plaintiff filed an age discrimination complaint in May 2007. We also note that plaintiff has not presented any evidence that Tyco revised RIF rankings or delayed implementation of the RIF for younger employees.
Relying on Bellaver v. Quanex Corp. (7th Cir. 2000) 200 F.3d 485 (Bellaver), plaintiff next contends that Tyco failed to "establish that the 'One Off RIF Action' and 'unwritten policy' precluding transfers to subordinate positions were 'legitimate nondiscriminatory reasons' for the termination." (Caps. & boldface omitted.)
In Bellaver, the plaintiff brought a sex discrimination action against her former employer, and the district court granted the employer's summary judgment motion. (Bellaver, supra, 200 F.3d at p. 488.) Bellaver explained that "[a] RIF takes place when an employer decides to eliminate certain positions from its workforce. RIFs typically involve the layoff of many employees at once, and employers will not be allowed cynically to avoid liability by terming a decision to fire an employee with a unique job description as a 'RIF' when the decision in fact was nothing more than a decision to fire that particular employee." (Id. at p. 494.) In Bellaver, the plaintiff was the only employee who was terminated in 1997 as part of what the employer characterized as a RIF. (Id. at p. 489.) The employer also admitted "to manipulating the use of the term RIF in the past as a pretense for terminating [another female employee] when its true motivation was to get rid of a manager who had become a symbol of dissatisfaction among the company's unionized workers." (Id. at p. 494.) Moreover, the plaintiff's duties were assumed part-time by two employees and full-time by two other employees. (Id. at p. 491.) Thus, Bellaver held that the plaintiff had presented sufficient evidence to raise a material factual issue as to whether the employer had discriminated against the plaintiff based on her sex. (Id. at p. 495.)
Bellaver is distinguishable from the present case. Here, there was no evidence that Tyco had previously falsely used the term RIF in terminating an employee. Moreover, nine employees were part of the RIF in 2007, though plaintiff was the only employee who did not obtain another job with Tyco. As Ferrick explained, plaintiff was the only employee whose employment was terminated the week of November 12, 2007, but other Tyco employees were terminated both before and after plaintiff as part of the same RIF. There was also no evidence that plaintiff's duties were assumed full-time by any other employees.
Washington v. Garrett (9th Cir. 1993) 10 F.3d 1421 (Washington) and SASCO Electric v. Fair Employment & Housing Com. (2009) 176 Cal.App.4th 532 (SASCO) do not assist plaintiff. In Washington, the plaintiff brought an action for employment discrimination. (Washington, at p. 1424.) The district court granted the employer's motion for summary judgment on the grounds that the plaintiff had failed to establish a prima facie case of racial discrimination and that the plaintiff had failed to rebut the employer's showing that its reorganization was a means to cut costs. (Id. at pp. 1427, 1431.) Since the plaintiff was qualified for the position that she held, was the only African-American, in fact, the only employee to lose her job in the RIF, and her responsibilities were assumed by someone not in her protected class, the appellate court held that she had stated a prima facie case of discrimination and reversed the judgment. (Id. at p. 1434.) The appellate court also agreed with the plaintiff's argument that the RIF was "not a bona fide workforce reduction," stating that "all the credible evidence in the record indicates that the RIF was effected for reasons personal to" the plaintiff. (Id. at pp. 1429, 1431.) Washington focused on the employer's inconsistencies in its explanations regarding the RIF and its failure to show the fiscal benefits or necessity for its actions. (Id. at pp. 1430-1431.) In contrast to Washington, here, plaintiff was not the only employee whose position was eliminated as part of Tyco's RIF, and Tyco's explanations for the RIF, that is, that the transfer of operations to Mexico and other locations would reduce costs was not challenged by plaintiff.
In SASCO, the appellate court rejected the employer's argument that there was insufficient evidence to support the Fair Employment and Housing Commission's finding that it discriminated against the plaintiff because she was pregnant, and affirmed the judgment. (SASCO, supra, 176 Cal.App.4th at p. 535.) In that case, the employer specifically told the plaintiff that she would not have lost her job if she had not been pregnant. (Id. at p. 542.) Moreover, the appellate court concluded that though the employer claimed that there had been a RIF, the plaintiff was the only employee who was affected by it, the termination of her employment occurred before there was any indication of the need to reduce staff, and two people were hired to replace her. (Id. at p. 546.) No such facts are present in the case before us.
Plaintiff also questions how she could "be part of Tyco's claimed 'ongoing RIF since 2002,' -- but at the same time excluded from the federally mandated age statistics data." Ferrick explained that he used the term "One Off RIF Action" in the November 9, 2007 e-mail to inform the individuals processing plaintiff's termination that they did not need to include statistical information regarding other affected employees since plaintiff was the only employee whose employment was terminated the week of November 12, 2007. However, that plaintiff was the only employee whose employment was terminated during this week does not mean that she was not part of the ongoing RIF since 2002. As Ferrick stated, his "use of the term 'One Off RIF Action' did not indicate or infer that [plaintiff] was the only employee affected by the RIF. In fact, Tyco Electronics employees in Menlo Park, CA were laid off both before and after [plaintiff's] layoff as part of the same gradual, ongoing RIF."
Plaintiff next argues that Tyco's negative RIF ranking of her in late February 2007 while ranking her as "meets expectations" earlier that month is evidence from which a jury could infer age discrimination.
Here, plaintiff received a positive evaluation in February 2007. However, when Sagastume reevaluated plaintiff's performance later that month, she ranked her in relation to the other planners in the ICD group for purposes of the RIF. Though plaintiff received the highest score for years of service, she scored lower in the four other categories than the other planners did, and she has presented no evidence that her scores in these categories should have been higher than those of the other planners. Thus, since the two evaluations of plaintiff were conducted for different purposes, a jury could not reasonably infer age discrimination.
Plaintiff's reliance on EEOC v. Boeing (9th Cir. 2009) 577 F.3d 1044 (Boeing) is misplaced. In Boeing, there was evidence that the department manager "frequently made negative comments about women, including comments to the effect that [he] 'didn't want any more women and that women were not worth a shit,' that 'he didn't have good luck with females and they hadn't been around long enough for his satisfaction,' that he 'just didn't have time' to train women, and that [his] ex-wife, who was a Boeing employee, 'should be at home, not working.' " (Id. at p. 1046.) Though the employee repeatedly requested a transfer, the department manager refused the request, and transferred a male coworker. (Ibid.) After the employee complained to the department manager that the hostile work environment was preventing her from performing her job, he proposed that she transfer to a department for which she did not have all of the necessary skills. (Id. at p. 1047.) The employee was reluctant to do so, because she was concerned about the supervisor in that department. (Ibid.) This supervisor had referred to her "as a 'little girl,' joked about [her] breaking a nail, and perfunctorily apologized and stormed off when confronted." (Ibid.) She was also concerned that the transfer would make her vulnerable in any future RIF assessment. (Ibid.) However, she agreed to the transfer after the department manager told her that the upcoming RIF would not affect her. (Ibid.) Two months later, the employee was evaluated for the RIF and her employment was terminated. (Ibid.) Though certain RIF scores were typically based on an employee's entire body of work, the employee was evaluated only for the two-month period. (Ibid.) The individual, who trained and supervised her, stated that she had made good progress but an individual with her skills would need five or six years of training, and he expected that she would have received higher scores in some categories or exemptions in others due to her status as a trainee. (Ibid.) He also believed that she had been " 'set up to fail.' " (Ibid.) Boeing held that there was sufficient evidence from which a trier of fact could conclude that the employee's low RIF scores were pretextual, and reversed the trial court's order granting summary judgment in favor of the employer. (Id. at p. 1051.)
Boeing is factually distinguishable from the present case. Here, there was no evidence of discriminatory animus or that plaintiff had been set up to fail. Instead, plaintiff was evaluated in relation to the other planners in the ICD group, and she has presented no evidence that she merited higher scores than the other planners.
Plaintiff next contends that "Tyco's reliance on an 'unwritten policy' that [employees] cannot be transferred to a lower paying position is evidence of age discrimination." (Caps. & boldface omitted.) This contention has no merit. Since a demotion is an adverse employment action (Guz, supra, 24 Cal.4th at p. 355), Tyco's "unwritten policy" of prohibiting transfers to a lower-paying position is not evidence of age discrimination.
Plaintiff also argues that Williams' refusal of her request that she be allowed to continue employment as a production worker in Redwood City is evidence of age discrimination. She points out that Bravo, who was younger than she, "was given the opportunity to transfer to a subordinate position" when she was subject to the RIF in 2002.
After plaintiff was informed by Williams that her employment was terminated, she responded, "I never dreamed this. I am in shock. Can you guy[s] give me the opportunity to be transferred to another department, to apply [for] any kind of job [so] that I don't lose my job? And he said, 'No.' " Plaintiff maintains that Williams' refusal made "any additional application efforts futile." She also claims that "Williams described an informal application process where the employee would 'go to HR and tell them they were interested in the position.' " Williams testified that "[i]f there was an opening, they could apply." However, plaintiff has not disputed evidence that at the same meeting Pereira told her at least twice that she was free to apply for any open, available position, offered to assist her with the application, and provided her with her personal contact information. Thus, like Bravo, plaintiff had the opportunity to apply for other positions with Tyco. It is undisputed that plaintiff never applied for a position with Tyco after her employment was terminated.
In sum, plaintiff did not meet her burden of presenting evidence establishing a triable issue of pretext for discrimination. Thus, the trial court properly granted summary adjudication of the age discrimination cause of action.
D. Harassment Claim
Plaintiff next contends that the trial court erred by granting summary adjudication on the harassment cause of action. She asserts that she was the only employee subject to a "One Off RIF Action" after she made an age discrimination complaint to the ConcernLine, Sagastume singled her out for performing work the "old-fashioned way," Sagastume lied to her about the reason for the termination meeting, and, unlike a younger employee, she was not transferred to any open positions.
For the reasons previously discussed in connection with plaintiff's age discrimination claim, we reject this contention. Since defendants established that the termination of plaintiff's employment and the failure to transfer her to another position were not based on age discrimination, such evidence cannot serve as the basis for her harassment claim. (Roby v. McKesson Corp. (2009) 47 Cal.4th 686. 709-710.) Plaintiff has also failed to show that Sagastume's criticism of her job performance by telling her to stop performing her job assignments "the old way" or "the old-fashioned way" altered the conditions of her employment so as to create a hostile or abusive work environment. (Reno, supra, 18 Cal.4th at pp. 646-647.) Nor has plaintiff shown how Sagastume's lie about the purpose of the meeting with Williams was in any way related to age discrimination. Accordingly, the trial court did not err in granting summary adjudication of the harassment cause of action.
E. Retaliation Claim
Plaintiff also contends that the trial court erred by granting summary adjudication on the retaliation cause of action. She asserts that she "pursued an age discrimination complaint with the ConcernLine, and found herself the victim of a 'One Off RIF Action' and 'unwritten policy' precluding placement in any of the open production positions approximately 6 months later."
However, plaintiff has not established a prima facie case of retaliation. Plaintiff complained about age discrimination in late 2004 and on May 22, 2007. "The cases that accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be 'very close,' O'Neal v. Ferguson Constr. Co., 237 F.3d 1248, 1253 (CA10 2001). See, e.g., Richmond v. Oneok, Inc., 120 F.3d 205, 209 (CA10 1997) (3-month period insufficient); Hughes v. Derwinski, 967 F.2d 1168, 1174-1175 (CA7 1992) (4-month period insufficient). Action taken (as here) 20 months later suggests, by itself, no causality at all." (Clark County School Dist. v. Breeden (2001) 532 U.S. 268, 273-274; Cornwell v. Electra Cent. Credit Union (9th Cir. 2006) 439 F.3d 1018, 1036 [eight month gap between an employee's discrimination complaint and his termination did not support inference that his complaint caused his termination].)
Here, plaintiff's complaint in 2004 was made over three years before the termination of her employment, and thus, was too remote in time to establish a retaliation claim as a matter of law. Plaintiff has also failed to show that the termination was the result of her 2007 complaint. Since Sagastume could not have known about plaintiff's complaints when she ranked her, there was no causal connection between plaintiff's engagement in protected activity and the termination of her employment. Thus, the trial court did not err in granting summary adjudication of the retaliation cause of action.
Plaintiff, however, characterizes the retaliatory act as Tyco's refusal to transfer her to an open position. As previously discussed, Tyco had no legal obligation to transfer her to a subordinate position. Moreover, plaintiff had the opportunity to apply for open positions with Tyco, but never did so.
F. Other Claims
Plaintiff next challenges the trial court's ruling as to the fourth cause of action for wrongful termination in violation of public policy
"[C]ourts have recognized tortious wrongful discharge claims where an employee establishes he was 'terminated in retaliation for reporting to his or her employer reasonably suspected illegal conduct . . . that harms the public as well as the employer.' [Citations.]" (Holmes v. General Dynamics Corp. (1993) 17 Cal.App.4th 1418, 1426.) Here, plaintiff's wrongful termination in violation of public policy claim fails for the same reasons that her discrimination, harassment, and retaliation claims fail. Thus, there was no error.
Regarding the breach of employment agreement cause of action, plaintiff contends that there were triable issues as to whether there was an implied "good cause" standard for termination in this case.
In California, there is a statutory presumption that all employees are at will. (Lab. Code, § 2922; Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 677-678.) "This presumption of at-will employment may be rebutted only by evidence of an express or implied agreement between the parties that the employment would be terminated only for cause. The existence of an implied promise to discharge an employee only for good cause is generally, but not always, a question of fact for the jury. [Citations.] On the other hand, if the facts are undisputed and admit of only one conclusion, then summary judgment may be entered on issues that otherwise would be submitted to the jury. Thus, the issue of the existence of an implied-in-fact contract not to terminate except for good cause may appropriately be resolved as a matter of law given the undisputed facts of a particular case. [Citations.]" (Eisenberg v. Alameda Newspapers, Inc. (1999) 74 Cal.App.4th 1359, 1386-1387.)
In the present case, plaintiff received and read a copy of the Tyco Employee Handbook, which states that "the employment relationship with Tyco Electronics is 'at will. ' " This handbook also explains that the employee or Tyco "can terminate the employment relationship at any time, with or without advance notice, and with or without cause." Plaintiff's own testimony also established her employment was at will. Though plaintiff testified that Pereira told her at a meeting in 2006 that Tyco would consider seniority with the company in conducting layoffs, she did not recall whether she was told that it was the sole factor that the company would consider. Plaintiff also testified that other than what Pereira told her at the 2006 meeting, no Tyco representative ever told her anything other than that Tyco or a Tyco employee could terminate employment at any time for any reason or no reason.
Citing her testimony that Pereira stated at the 2006 meeting that "they are going to transfer everyone so that nobody loses their job," plaintiff argues that this evidence "is a representation of continued employment contradicting the 'at will' language relied upon by Tyco." However, plaintiff has not accurately quoted her testimony. She testified "[t]hat they are going to try to transfer everybody so nobody lose their job," "they say for sure they want to try that nobody lose their job." (Italics added.) Thus, plaintiff's argument fails.
Plaintiff also contends that her years of service and prior positive performance reviews is "evidence of an implied agreement to terminate only for 'good cause.' " (Caps. & boldface omitted.) However, "[t]he statutory presumption of at-will employment is strong," and "[a]bsent other evidence of the employer's intent, longevity, raises and promotions are their own rewards for the employee's continuing valued service; they do not, in and of themselves, additionally constitute a contractual guarantee of future employment security." (Guz, supra, 24 Cal.4th at 335, 342.) Here, plaintiff has submitted no other evidence of Tyco's intent to guarantee her security of employment. Since plaintiff failed to rebut the presumption of at-will employment, Tyco did not breach the employment agreement when it terminated her employment. Thus, the trial court properly granted summary adjudication of the breach of employment agreement cause of action.
Plaintiff also contends that the trial court erred in granting summary adjudication of the intentional infliction of emotional distress cause of action.
"A cause of action for intentional infliction of emotional distress exists when there is ' " ' "(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct." ' " ' [Citations.] A defendant's conduct is 'outrageous' when it is so ' " 'extreme as to exceed all bounds of that usually tolerated in a civilized community.' " ' [Citation.] And the defendant's conduct must be ' " 'intended to inflict injury or engaged in with the realization that injury will result.' "' [Citation.] [¶] Liability for intentional infliction of emotional distress ' "does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities." [Citation.]' [Citations.]" (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051.)
Plaintiff argues that she "offered sufficient evidence to allow the jury to determine if . . . being lied to by Sagastume, subjected to a 'One Off RIF Action' and 'unwritten policy' precluding her from transferring to any of the open production positions she was unquestionably qualified to fill after 39 years of service constitutes intentional infliction of emotional distress." There is no merit to this argument. First, plaintiff does not explain how Sagastume's failure to tell her the purpose of her meeting with Williams constituted "outrageous" conduct that caused severe or extreme emotional distress. Sagastume's telling her that the meeting was "probably . . . about molding" when it was not would have avoided emotional distress. Second, that plaintiff was the only employee laid off on a particular day does not constitute "outrageous conduct." Third, "personnel management activity is insufficient to support a cause of action of intentional infliction of emotional distress, even if improper motivation is alleged. If personnel management decisions are improperly motivated, the remedy is a suit against the employer for discrimination." (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 80.) Thus, since Tyco's failure to transfer her to another position was a personnel management decision, defendants were also entitled to summary adjudication of this cause of action under this theory.
III. Disposition
The judgment is affirmed.
Mihara, J. WE CONCUR: Bamattre-Manoukian, Acting P. J. Lucas, J.
Judge of the Santa Clara County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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