Opinion
No. A128234
11-01-2011
RUBY BERRY, Plaintiff and Appellant, v. WASHINGTON MUTUAL BANK, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. VG08386075)
Ruby Berry appeals from the trial court's judgment, entered after the court granted defendant Washington Mutual Bank's (Bank) motion for summary adjudication regarding each of Berry's claims for race and age discrimination and racial and age harassment in employment under the Fair Employment and Housing Act, Government Code section 12900 et seq. (FEHA). Berry argues reversal is necessary because the trial court prejudicially applied the wrong legal analysis regarding her discrimination and age harassment claims, incorrectly found no triable issues of material fact regarding each of the claims, wrongly concluded Berry had not exhausted administrative remedies for her racial harassment claim, and incorrectly ruled she could not pursue punitive damages. We affirm the judgment.
BACKGROUND
Berry, an African-American woman, was 62 years old and a Senior Personal Financial Representative (PFR) at the Bank when her employment was terminated in October 2006. She had been employed by the Bank since 1992 and had worked since 1997 at its Dublin, California branch, where she was promoted to her final position in 2000. It was undisputed that she was the only African-American on the sales platform where the PFRs had their desks during the entire time she worked at the Dublin branch.
Although Berry was a Senior PFR, the parties do not dispute that her responsibilities and those of PFRs were the same regarding the issues of this appeal. Therefore, we refer to Berry simply as a "PFR" for the sake of clarity, and mean no disrespect by this designation.
After her employment termination, Berry filed charges with the Department of Fair Employment and Housing (DFEH) alleging age and discrimination, as well as harassment based on age. DFEH investigated and concluded there was insufficient evidence or information to establish that a violation of FEHA occurred.
In May 2008, Berry filed a complaint in Alameda County Superior Court against the Bank. She alleged race discrimination, age discrimination, racial harassment, and age harassment in employment in violation of FEHA, and sought punitive damages.
The Bank subsequently filed a motion for summary judgment or adjudication regarding Berry's claims. The Bank contended Berry could not prove a prima facie case regarding any of her claims and that, regarding her race and age discrimination claims, she could not raise a triable issue of material fact as to pretext or discriminatory motive based on her race or age. It further contended Berry was terminated in 2006 for not meeting the Bank's minimum goal for the sale of its products to new customer households, as measured by the Bank's "Target Service Ratio" (TSR), despite receiving warnings and counseling. The Bank also argued Berry was time-barred from pursuing her harassment claims, could not pursue her racial harassment claim because she had not exhausted her administrative remedies, and could not maintain a claim for punitive damages in any event.
Berry vigorously opposed the Bank's motion in all respects. She argued there were triable issues of material fact regarding each claim, particularly because of evidence indicating the Bank's regional manager, Scott MacCormac, had sought to terminate her because of race and age discrimination. She contended that he had done so since December 2004 and later falsely denied he had been out to "get her" since that time, that he, or branch managers acting at his direction, had singled her out for unfair discipline and subjected her to false charges about her tardiness and complaints from customers before her termination, and that he ultimately used her TSR performance as a pretext for terminating her employment. She also contended that she was not barred by any statute of limitations from pursuing her harassment claims and that she had exhausted her administrative remedies regarding her racial harassment claim.
The Bank replied that Berry's contentions about issues of material fact were highly speculative, based on inadmissible evidence, and in any event did not create any triable issues of material fact because there was no evidence that MacCormac was motivated by any unlawful discrimination. The Bank also asserted that Berry's administrative complaints did not encompass racial harassment, and her allegations of harassment were unproven or trivial office disputes that did not represent the level of misconduct necessary to support a harassment claim.
At the hearing on the Bank's motion, the trial court focused on whether the evidence supported an inference that Berry's termination was caused by unlawful discrimination. Berry's counsel argued that MacCormac had falsely denied in deposition that his goal had been to terminate her since 2005, and that this evidence of dishonesty supported an inference of discriminatory motive. Her counsel also argued she had exhausted her administrative remedies regarding her racial harassment claim, relying on a recent decision by this court, Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243 (Nazir). The court granted Berry leave to submit deposition transcripts of two of Berry's former coworkers relevant to MacCormac's intent and purported dishonesty, and directed the parties to file supplemental briefs regarding the Nazir issue.
After further briefing and hearing, the trial court granted the Bank's motion. Regarding Berry's race and age discrimination claims, the court concluded that Berry was unable to prove two essential elements to her prima facie case under McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 (McDonnell Douglas), namely that she had been performing competently as a PFR and that the Bank had a discriminatory motive in terminating her. The court also concluded that Berry had no evidence that the Bank's stated reason for terminating her employment, her failure to meet the TSR minimum goal, was pretextual. The court found Berry did not exhaust her administrative remedies regarding her racial harassment claim, did not raise triable issues of material fact regarding her age harassment claim, and could not maintain a punitive damages claim. The trial court overruled Berry's written objections to the Bank's proffered evidence, and sustained some and overruled some of the Bank's written objections to Berry's evidence.
The trial court subsequently entered judgment in favor of the Bank on all claims. Berry filed a timely notice of appeal.
DISCUSSION
I. Standard of Review
We review the trial court's order granting summary judgment de novo. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860 (Aguilar).) We must consider all of the evidence and all of inferences that can be reasonably drawn from it, and view them in the light most favorable to Berry. (Id. at p. 843.)
A moving defendant is entitled to judgment as a matter of law if it shows that "one or more elements of the cause of action . . . cannot be established." (Code Civ. Proc., § 437c, subds. (c), (p)(2).) The plaintiff must then respond with admissible evidence raising a triable issue, and cannot rely on "the mere allegations or denials of [her] pleadings." (Ibid.) A triable issue of material fact exists when "the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof." (Aguilar, supra, 25 Cal.4th at p. 850.) The moving party always has the burden of persuading the trial court that there is no such triable issue of material fact regarding its summary judgment claims. (Ibid.)
The burden of production, however, shifts between the parties to a summary judgment motion. It initially rests with the moving party, who must make a prima facie showing of the nonexistence of any triable issue of material fact. (Aguilar, supra, 25 Cal.4th at p. 850.) Once this is done, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Ibid.) A burden of production entails the presentation of evidence, while a burden of persuasion entails the establishment through such evidence of " '[the] requisite degree of belief.' " (Ibid.) A moving defendant "may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence[.]" (Aguilar, supra, 25 Cal.4th at p. 855.)
II. The Trial Court's Application of the Burden of Producing Evidence
Berry first argues we must reverse the trial court's grant of summary adjudication regarding her discrimination claims because it misapplied the burden of production, wrongly requiring Berry to establish her entire case at the summary judgment stage rather than merely establish a triable issue of fact regarding pretext. Berry fails to explain why the court's purported error in its reasoning matters under the circumstances. While we do not necessarily agree with the substance of Berry's argument, we need not further explore the issue for multiple reasons.
First, in her opening brief, Berry does not explain why the trial court's purported error in reasoning was prejudicial to her. In her reply brief, Berry argues prejudice because she supposedly raised a triable issue of fact that the Bank's stated reason for terminating her employment was a pretext for race or age discrimination. This argument is tardily presented without explanation, and we may disregard it. (Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3.)
Even if we consider the merits of her argument, it is unpersuasive for two reasons. It is apparent from the court's reasoning and discussion of the facts that its ruling would have been the same if it had applied the burden of production as Berry claims was required, because the court rejected Berry's pretext argument.
Most importantly, under our de novo standard of review we are not bound by the trial court's stated reasons for granting summary judgment because we "review its ruling, not its rationale." (Kids' Universe v. ln2Labs (2002) 95 Cal.App.4th 870, 878.) Accordingly, whether or not the trial court properly applied the shifting burden of production is not relevant to our de novo review of whether its grant of summary adjudication against Berry's discrimination claims is correct. We turn now to our de novo review of the court's rulings.
III. Berry's Race and Age Discrimination Claims
In criticizing the trial court's reasoning, Berry argues that she needed only to show the existence of a triable issue of material fact as to whether the Bank's stated reason for terminating her employment, her substandard TSR, was a pretext for termination based on race or age discrimination. Berry contends she raised this issue based on evidence of MacCormac's dishonesty, as indicated by his denial that he told a former branch manager, Sean Elder, in late 2004 or early 2005 that he wanted to terminate Berry's employment, and his turning over of the TSR program administration to branch managers after Berry's employment was terminated in October 2006.
The Bank disagrees with Berry regarding what the parties were required to show at the summary judgment/adjudication stage and contends much of Berry's factual claims are based on inadmissible evidence. The Bank contends that Berry cannot meet two of four elements necessary to establish a prima facie case of discrimination. It also asserts that it showed a legitimate, non-discriminatory reason for Berry's employment termination, and that Berry cannot show this reason was a pretext for a discriminatory reason. We conclude that, even if Berry's views of what was required to be shown and what was admissible evidence are correct, she nonetheless did not raise a triable issue of material fact regarding pretext. Therefore, we need not address the remainder of the issues raised by the parties, and affirm the court's grant of summary adjudication regarding Berry's race and age discrimination claims. A. Proving a Discrimination Claim at Trial
California has adopted the three-stage burden-shifting test established by the United States Supreme Court for the trial of discrimination claims, as articulated in McDonnell Douglas, supra, 411 U.S. 792. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 (Guz).) 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." (Guz, supra, at p. 354.) Under the McDonnell Douglas test, the plaintiff has the initial burden at trial to 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 . . . , and (4) some other circumstance suggests discriminatory motive." (Guz, at p. 355.)
Once these four elements are met, a presumption of discrimination arises; however, this presumption disappears if the employer produces admissible evidence, "sufficient to 'raise[] a genuine issue of fact' and to 'justify judgment for the [employer]' that its action was taken for a legitimate, nondiscriminatory reason." (Guz, supra, 24 Cal.4th at pp. 355-356.) "The plaintiff must then have the opportunity to attack the employer's proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive." (Id. at p. 356.) B. Reviewing an Employer's Motion for Summary Judgment/Adjudication
As our Supreme Court noted in Guz, there is a division of opinion among our appellate courts regarding how the McDonnell Douglas test should apply to an employer's motion for summary judgment against an employment discrimination claim in California. "Several California decisions have suggested that because a plaintiff opposing summary judgment need not demonstrate triable issues until the moving defendant has made an initial no-merit 'show[ing],' the McDonnell Douglas burdens are 'reversed' on a defense motion for summary judgment . . . . [Citations.] Other California cases, however, have indicated that the plaintiff can survive an employer's motion for summary judgment only by presenting, at the outset, triable evidence satisfying the prima facie elements of McDonnell Douglas." (Guz, supra, 24 Cal.4th at pp. 356-357.)
The Guz court did not resolve this analytical dispute, choosing instead to employ an "alternative analysis." (Guz, supra, 24 Cal.4th at p. 357.) It first determined whether the employer, Bechtel, had provided an explanation of nondiscriminatory reasons for Guz's employment discharge that was "creditable on its face," and, concluding Bechtel had done so, next determined whether Guz had met his burden of rebutting this showing "by pointing to evidence which nonetheless raises a rational inference that intentional discrimination occurred." (Ibid.)
Berry argues, based on appellate court opinions that preceded Guz (see Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1735, citing University of Southern California v. Superior Court (1990) 222 Cal.App.3d 1028, 1036; Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 225), that "the employee can raise a triable issue of fact sufficient to defeat the motion with evidence that the employer's stated reason is false and a mere pretext; the employee need not go beyond that showing and establish a prima facie case." We do not necessarily agree with Berry's interpretation of these cases; regardless, her characterization of the relevance of evidence of such falsity is incomplete because the evidence also must support a rational inference that intentional discrimination was the true cause of an employer's actions. The Guz court made this clear in the course of addressing the significance of evidence that a company lied about its reasons for acting against an employee, as follows:
"[A]n inference of intentional discrimination cannot be drawn solely from evidence, if any, that the company lied about its reasons. The pertinent statutes do not prohibit lying, they prohibit discrimination. [Citation.] Proof that the employer's proffered reasons are unworthy of credence may 'considerably assist' a circumstantial case of discrimination, because it suggests the employer had cause to hide its true reasons. [Citation.] Still, there must be evidence supporting a rational inference that intentional discrimination, on grounds prohibited by the statute, was the true cause of the employer's actions. [Citation.] Accordingly, the great weight of federal and California authority holds that an employer is entitled to summary judgment if, considering the employer's innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that the employer's actual motive was discriminatory." (Guz, supra, 24 Cal.4th at pp. 360-361, fn. omitted.)
Similarly, the United States Supreme Court has indicated that "[t]he factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of a prima facie case, suffice to show intentional discrimination." (Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S. 133, 147, italics added.) Consistent with this approach, the Guz court stated, "[i]n an appropriate case, evidence of dishonest reasons, considered together with the elements of the prima facie case, may permit a finding of prohibited bias." (Guz, supra, 24 Cal.4th at p. 356, italics added.) Thus, as an appellate court opinion approvingly cited in Guz stated, an employee attempting to avoid summary judgment against his or her discrimination claim "must offer substantial evidence that the employer's stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination." (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1004-1005, italics added, cited in Guz, supra, 24 Cal.4th at p. 361, fn. 24; quoted in Reeves v. MV Transportation, Inc. (2010) 186 Cal.App.4th 666, 673 [Division One of this court concluding there was no triable issue regarding the employer's veracity].) As we have noted," 'very little evidence of such intent is necessary to defeat summary judgment.' [Citation.] Put conversely, summary judgment should not be granted unless the evidence cannot support any reasonable inference for plaintiff." (Nazir, supra, 178 Cal.App.4th at p. 283.)
The Guz court found that, "even without considering Bechtel's explanation, Guz's evidence raised, at best, only a weak suspicion that discrimination was a likely basis for his release. Against that evidence, Bechtel has presented a plausible, and largely uncontradicted, explanation" for its actions for reasons unrelated to age. (Guz, supra, 24 Cal.4th at pp. 370-371.) Under these circumstances, the court concluded, "as a matter of law, that Guz has failed to point to evidence raising a triable issue that Bechtel's proffered reasons for its actions were a pretext for prohibited age discrimination," and that Bechtel was therefore entitled to summary judgment on Guz's age discrimination claim. (Id. at pp. 369-370.)
We employ the same analysis used in Guz, consistent with the case law we have discussed herein. We likewise conclude Berry has failed to raise a triable issue of material fact regarding pretext, as we now discuss. C. The Evidence Cited by the Parties
Berry and the Bank submitted extensive separate statements of fact that relied on a substantial amount of testimony and documents, as well as supplemental briefing, testimony, and documents. They also made hundreds of objections to the admissibility of much of the evidence and/or requests that numerous facts be found disputed, stricken or disregarded. As a result, they filed over 1,800 pages of material with the trial court in support or in opposition to the Bank's motion. It is questionable that either party served its purposes by their plethora of objections and contentions about each other's evidence. As we have previously indicated, parties engaged in summary judgment should strategically employ their available tools. (Nazir, supra, 178 Cal.App.4th at p. 254, fn. 3 [noting with regard to even more extensive objections that it "was in utter disregard of all good advice, including from us"].)
As we have discussed, the trial court ruled on the parties' written objections to particular evidence. We have reviewed the record in accordance with the trial court's rulings on these objections, since they are not challenged on appeal. The evidence we discuss herein was admitted and considered by the trial court. We have also reviewed the parties' contentions regarding what is and is not disputed evidence; unless we indicate otherwise, we conclude the following evidence is not legitimately subject to dispute. We now summarize those facts relevant to the resolution of the issues raised in this appeal.
1. The Bank's Evidence of the Reason It Terminated Berry's Employment
The Bank put forward a good deal of evidence that it terminated Berry for a non-discriminatory reason, namely, her failure to reach the minimum TSR goal. Much of this evidence was submitted by the Bank via the declaration or deposition testimony of the Bank's manager for the region containing the Dublin branch, Scott MacCormac. Berry contends nothing stated by MacCormac should be believed, because he purportedly lied when he denied in deposition that he told Dublin branch manager Elder in late 2004 or the first part of 2005 that he wanted to terminate Berry's employment, because two Dublin branch employees, Donna Lemar-Hakimi and Debbie Brown Groom, testified Elder told them MacCormac had said this. Thus, Berry even disputed that Washington Mutual was "a nationwide retailer of financial services that provides a diversified line of products and services to consumers" because MacCormac's declaration was the source of this fact.
Berry does not establish that MacCormac's denial—the falsity of which is disputed, and not conclusively proven—creates a triable issue of fact as to the falsity of all of MacCormac's testimony. The only case Berry cites for this proposition is Donchin v. Guerrero (1995) 34 Cal.App.4th 1832, in which the court concluded the factfinder could reasonably conclude a party-landlord falsely denied knowledge of a tenant's dogs' vicious dispositions (the dogs caused an injury to appellant) and, therefore, it was improper to grant summary judgment in the landlord's favor on the basis that he was unaware of the dogs' dispositions. (Id. at p. 1845.) The case is inapposite however, because the court's ruling was based on conclusive evidence, in the form of the landlord's own statements, that his initial, exculpatory statement that he was unaware of the dogs at all was false. (Id. at p. 1843.) Here, there is no such conclusive evidence. Instead, Berry relies on the testimony of Lemar-Hakimi and Groom about what Elder told them MacCormac had told him a year and a half or more before Berry's employment was terminated, which Elder in deposition denied having said. Berry does not explain why this factual dispute is reason to disregard all of MacCormac's declaration and testimony, including that which is not disputed on the facts and supported by documentary evidence and/or the recollections of other witnesses. Therefore, we review the facts asserted by MacCormac one at a time, considering Berry's contentions and/or objections as to each fact.
TSR measured the number of products or services a PFR sold to each new customer household assigned to the Dublin branch. At the beginning of each year, the Bank informed the PFRs of that year's TSR goal. The TSR was based on a three-month rolling average, which was the combined total of the monthly totals for each quarter.
The Bank had performance counseling guidelines, called the "Performance Improvement Process" or "PIP," which consisted of four levels, they being verbal counseling, a written notice of concern, a written warning, and employment termination. When the Bank's managers provided PIP counseling, the manager counseled the employee that a failure to improve could lead to further performance counseling. Management had the discretion to determine the appropriate level of performance counseling, including employment termination, on a case-by-case basis. PIP guidelines were explained to employees, including Berry.
At the beginning of 2005, the Bank set the TSR goal at 5.20. Berry was aware of this goal, but repeatedly did not meet it. Berry's three-month rolling TSR for June to August 2005 was 3.87. Branch manager Elder "verbally counseled" Berry that she needed to meet the TSR. She achieved a 5.83 TSR for November 2005, but had only a 4.0 TSR for December 2005. The Dublin branch was in a region that had the lowest overall 2005 TSR among its PFRs of the 12 regions of the Bank in Northern California.
The Bank set the minimum TSR goal for 2006 as 5.40. MacCormac, the regional manager, took steps in January 2006 to remedy the low TSRs of his PFRs. He began an "initiative" modeled on the PIP levels of counseling. He contacted branch managers in his region to determine which PFRs had received verbal counseling for low TSRs in the fall of 2005. He learned three, including Berry, had received such counseling, and he began tracking TSR performance for all the PFRs in his region.
Berry's first quarter TSR was 4.04, not exceeding 4.50 in any of the three months. Twenty-one PFRs fell short of the minimum TSR goal that quarter. In April, MacCormac sent a "high importance" email to the 21 PFRs, including Berry, in which he indicated that the region was last among the 12 in Northern California in sales performance and stated:
"If you are receiving this email, you are falling short of giving this company the return on investment it has made in you. Every one of you on this list are not only falling well short of meeting the minimum expectation in TSR of 5.40, you are not even at 5.00 in your rolling 3-month average. This is a basic expectation of your job, and one that if you are not fulfilling it, you may not be entitled to hold the position you're in.
"I'm going to encourage all of you to take a hard look at yourself and your contribution to your office, this region and the company. There is no room for negotiation on this issue, and you must either improve to meet the minimum expectation of 5.40 or make room for others that can accomplish this. I can guarantee each of you that you will be hearing from your manager very soon regarding this issue, and that there will be performance documentation involved. Put simply, I've asked for improvement in this area for too long. Now I'm demanding it."
Berry received and read this email. Subsequently, the branch manager from March 2006 until Berry's termination, Marcelina Galang, met with her in April 2006 to verbally counsel Berry, including regarding her low TSR score. During the meeting, she told Berry her first quarter TSR score of 4.04 was well below the Bank's 5.40 standard, and asked Berry what the Bank could do to help her reach that goal. Berry responded that she did not have a problem selling, would not "push it," and only "asked twice." Galang suggested Berry review certain Bank materials regarding TSR.
Elder left the branch at the end of 2005 to work at a branch closer to his home and was succeeded by Ray Lam, who served as interim branch manager until Galang became branch manager in March 2006.
Galang, at MacCormac's instruction, met with Berry and gave her a written "Notice of Concern" in early June 2006, based on her first quarter performance. This notice stated in bold letters:
"Immediate satisfactory performance is required, and must continue thereafter. Please understand that failure to remedy the problem may result in further performance counseling or termination of employment."
Berry's second quarter TSR in 2006 was 4.41 (consisting of 5.40 for April, 6.00 for May, and 3.33 for June), also below the 5.40 minimum goal. Galang met again with Berry regarding her TSR, made suggestions for how Berry could increase her TSR score, and helped Berry develop a marketing plan designed to target local business and individual clients for sales. Berry's July 2006 TSR was 5.63.
On August 11, 2006, Galang, at MacCormac's instruction, issued a written warning to Berry, referring to her insufficient second quarter TSR. Berry signed the document, acknowledging that she had July through September 2006 to improve her TSR to at least 5.40, and that her "failure to remedy the problem may result in further performance counseling or termination of employment." Galang read this language out loud to Berry at a meeting.
Galang met four more times with Berry by the end of September 2006 about her low TSR. However, Berry's third quarter average was only 4.63.
In October 2006, MacCormac decided to terminate Berry's employment. On October 18, 2006, Galang, acting at MacCormac's instruction, informed Berry that her employment was terminated for her failure to meet the minimum TSR goal of 5.40. The Bank also terminated two other PFRs in the region on the same day for failing the meet the minimum TSR goal; a 26-year-old, and a 41-year-old, both Caucasian. MacCormac made the decision to terminate all three employees because, he asserts, of their substandard TSR. MacCormac did not terminate another PFR, a 57-year-old Caucasian, who had a 5.30 TSR, stating in the course of this litigation that she had demonstrated a concerted effort to improve her performance.
2. Berry's Evidence of Pretext
Berry contends that she has established a triable issue of material fact regarding pretext, based largely on evidence that purportedly showed MacCormac lied about his reason for terminating Berry. Berry relies heavily on deposition testimony from two Bank employees at the Dublin branch, Lemar-Hakimi and Groom, that the court allowed Berry to file with supplemental papers, which testimony Berry contended to the trial court "establishes many inferences that [the Bank] wrongfully terminated plaintiff on account of her age and race."
The Bank argues that we should consider this evidence for nonhearsay purposes only because, after Berry submitted these deposition transcripts, the court sustained many of the Bank's hearsay objections to statements made in declarations and written statements of Lemar-Hakimi and Groom that Berry had submitted as a part of her initial opposition to the Bank's motion. According to the Bank, their failure to object to the deposition testimony is "beside the point" because it had already objected to the declarations and written statements, which objections the court ultimately sustained on hearsay grounds. The Bank does not cite any legal authority, and we are unaware of any, that supports this assertion. The court, having no objections before it, had no reason to rule regarding the admissibility of the deposition testimony. The Bank, having failed to object to the court's consideration of the deposition testimony, waived its objections. (See Miller v. Department of Corrections (2005) 36 Cal.4th 446, 452, fn. 3 (Miller) [although the court sustained a hearsay objection to a similar statement in a declaration, "failure to object to deposition testimony bars any hearsay objection on appeal"].) Therefore, we consider this deposition testimony, along with that of MacCormac and the other evidence Berry relies on to argue reversal is necessary.
However, the court overruled the Bank's objection to one declaration statement by Groom, which indicated that Elder had told her that MacCormac had told him his "primary goal" as new branch manager was to "get rid" of Berry.
a. Groom's Testimony
Berry emphasizes Groom's testimony that Elder told her in early December 2004, when he was coming in as branch manager and Groom was an assistant manager there, that MacCormac instructed him "that one of his primary—his main focus . . . would be to eliminate Ruby Berry." She said that "[i]t was always presented to us as each branch is its own bus, and people who don't fit in, you need to get them off the bus." Although she testified that this was how it was presented by Elder, she said she did not remember his exact terminology.
Groom also testified that Elder wanted to "write up" Berry at times when Groom did not think it was justified. This included when a customer complained about Berry to Elder, and other times when Groom and another assistant manager tried to explain to Elder that they were trained to proceed first with verbal counselings, and that they could not "just jump in and write [Berry] up for . . . minor things." Groom could not recall the issues involved and estimated this happened three or four times before she left, which was in June 2005. Asked if she recalled if Elder wanted to write up, or gave verbal counseling to, any other branch employees for violations of company policy, she replied, "Not that I recall."
b. Lemar-Hakimi's Testimony
Berry also points out Lemar-Hakimi's testimony that in January 2005, the day after Elder, Lemar-Hakimi, and Berry had quarreled over Elder's ordering of Lemar-Hakimi to stay after hours to help a customer, Elder apologized to Berry and Lemar-Hakimi. Berry refused to accept the apology and walked out; Lemar-Hakimi accepted it and talked with Elder. He told her that MacCormac had a goal of terminating Berry's employment, but did not tell her why. He told her this another time after saying that Berry "was not doing her job" because she "made a client cry." Lemar-Hakimi thought this was unfair because in her opinion the client had cried when told by Berry correctly of a penalty that Elder had not mentioned to the client. Elder said it was time for Berry "to go and leave the branch."
Lemar-Hakimi also testified that Elder tracked the time Berry arrived at work and from lunch and complained incorrectly two to three times a week to Lemar-Hakimi that Berry was late. Lemar-Hakimi acknowledged it was Elder's job to note attendance and late arrival issues, but said "it just looked like he was just tracking her, not anybody else." Lemar-Hakimi said that, as far as she could remember, Berry "was not late ever. She was always on time," and would tell her coworkers if she was going to be a few minutes late.
Berry also contended to the trial court that Lemar-Hakimi testified that Elder picked on Berry because of her age. However, Lemar-Hakimi's actual testimony was that this was her impression because of a difference in their ages and because Elder did not show Berry respect or try to understand her as an employee; Lemar-Hakimi did not hear Elder say anything about Berry's age.
c. MacCormac's Testimony
Berry contends that the Bank's stated reason for terminating Berry was a pretext based not only on Groom's and Lemar-Hakimi's testimony, but also on MacCormac's denial that he ever told Elder that he had a goal of terminating Berry's employment. According to Berry, MacCormac's entire testimony is unbelievable for summary judgment purposes because the contradictions between his testimony and other evidence, such as Groom's and Lemar-Hakimi's testimony, "give rise to an inference that he had been willfully false."
Berry did not include MacCormac's actual testimony in her initial opposition to the Bank's motion. She submitted the missing deposition pages via her counsel's supplemental declaration, but neglected to cite to these pages in her supplemental briefing. Her attorney read these portions of MacCormac's deposition testimony into the record at the second hearing on the Bank's motion. The court stated in its ruling that this testimony was not in the original or supplemental briefing, which was correct; but it was raised at hearing and is contained in the record before us via Berry's attorney's supplemental declaration; therefore, we consider it.
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Berry also emphasizes MacCormac's deposition testimony that his decisions to terminate an employee for failure to meet the TSR goal were discretionary. She points out that MacCormac allowed a younger, non-African-American employee to remain at the Bank at the same time he terminated Berry's employment. As we have discussed, MacCormac testified that this employee, a 57-year-old Caucasian, had a 5.30 TSR, and had demonstrated a concerted effort to improve her performance.
Berry further points out MacCormac's acknowledgment that another employee, Heather Tompkins, a Caucasian who did not meet the TSR minimum goal, was allowed to transfer to another department within the Bank after she was told she would be terminated for failure to meet the minimum TSR goal. However, the undisputed evidence was that Tompkins asked for this transfer. Berry does not contend that she, Berry, made such a request.
d. Other Facts Cited by Berry
Berry cites to other facts which, she contends, indicate the Bank used its TSR program deliberately to terminate Berry. She points to the evidence that MacCormac directly instituted the 2006 TSR program rather than allowing branch managers to do so, that no one at the Dublin branch other than Berry received counseling, and that, as Berry's own testimony indicated, no one ever gave her "any type of training or counseling that was designed to assist [her] in improving her [TSR] scores." Furthermore, MacCormac testified that after terminating Berry and the other discharged PFRs, he turned back the administration of the TSR program to branch managers.
Furthermore, Berry contends in a footnote in her opening appellate brief that Galang "routinely and falsely wrote up [Berry] for tardiness, whereas other employees who were tardy were not disciplined," based on Berry's declaration and the deposition testimony of a coworker, Tompkins. However, this evidence indicates only that Galang may have noted Berry's arrivals at the Bank (Tompkins was not certain about what she observed Galang doing), which Tompkins acknowledges were sometimes tardy, and there was no evidence that either witness had knowledge of whether or not Galang kept track of other employees in a similar fashion. Berry also contends that Galang initially refused to allow her to take family leave due to her husband's surgery. However, there is no dispute that in the end, Berry was allowed to do so.
Berry summarizes her argument in her opening appellate brief as follows:
"[The Bank's] entire justification for terminating [Berry's] employment was that she had failed to meet certain sales goals, and the critical evidence for this justification was the testimony of [MacCormac], defendant's regional manager. He was the one who ostensibly instituted a 'mandatory' program of tracking the employees' TSR scores and requiring compliance with the company's goals, and he was the one who had the sole discretion as to whether or not to discipline and, ultimately, terminate an employee for failure to meet these goals.
"[Berry] presented evidence, however, that MacCormac stated that his goal was to terminate Berry's employment long before she ever ostensibly failed to meet these sales goals. Moreover, immediately after Berry's employment was terminated, MacCormac's program of tracking TSR scores and taking control of employee discipline evaporated. This evidence directly contradicted MacCormac's sworn testimony, and was sufficient to give rise to an inference that he had been willfully false. Accordingly, there was a triable issue of fact as to the falsity of all of his testimony. [Citations.]
"Once MacCormac's testimony is disregarded (as a trier of fact was entitled to do), defendant did not have sufficient evidence to show that it had an independent, non-discriminatory reason for terminating Berry's employment. Although Washington Mutual had stated TSR goals, there was a triable issue of fact as to whether failure to meet these goals would have triggered any form of counseling or discipline. Accordingly, the trial court should have found that there was a triable issue of fact on the race and age discrimination claims, and its judgment on these points should be reversed." D. Analysis of the Evidence Cited by the Parties
There is no question, and in fact Berry does not contest, that the Bank met its burden of showing a nondiscriminatory reason for terminating her employment. It cannot be disputed that the Bank set a minimum TSR goal of 5.20 for 2005 and 5.40 for 2006; that MacCormac made clear to the PFRs in his region, including Berry, in writing, that PFRs were to take this minimum goal very seriously and that failure to achieve it could be grounds for progressive employment counseling and employment termination; that Berry repeatedly fell short of this minimum goal from the last part of 2005 through September 2006; that she and 20 other PFRs were subject to progressive employment counseling in 2006 for subpar TSR performance, whether or not Berry thought it was designed to assist her in improving her scores; that she was told in the course of this counseling that her continued subpar TSR performance could result in termination; and that on the same day in October 2006 the Bank terminated her employment and that of two much younger, Caucasian PFRs for the stated reason that they had not achieved the minimum TSR goal of 5.40.
As a result of the Bank's showing, the burden shifted to Berry to establish a triable issue of fact that this reason was pretext for race or age discrimination. (Guz, supra, 24 Cal.4th at pp. 355-356.) She did not do so for a simple reason: she did not produce anything suggesting that MacCormac (or Elder and Galang, the branch managers who supervised her in 2005 and most of 2006) acted against her because of race or age discrimination. Berry's opposition is based largely on her contention that Elder told Groom and Lemar-Hakimi in late 2004 and/or the first part of 2005 that MacCormac said he wanted to terminate Berry's employment and, in the course of litigation about this case, that MacCormac falsely denied telling this to Elder. According to Berry, this lie, along with Elder and Galang purportedly singling Berry out unfairly for tardiness and customer service issues, and MacCormac's exercise of his discretion in managing the TSR program—specifically his decision to keep one underperforming PFR, allow another to transfer, and his turning over of the administration of his TSR program to branch managers after terminating Berry—create the reasonable inference that Berry's employment was terminated because of race and age discrimination. We disagree for several reasons.
First, and most importantly, there was no evidence that anything MacCormac might have said to Elder in late 2004 or the first part of 2005 about wanting to terminate Berry's employment, or his subsequent denial that he said such a thing, had anything to do with race or age discrimination. Under Guz, "an inference of intentional discrimination cannot be drawn solely from evidence, if any, that the company lied about its reasons. . . . [T]here must be evidence supporting a rational inference that intentional discrimination, on grounds prohibited by the statute, was the true cause of the employer's actions." (Guz, 24 Cal.4th at pp. 360-361.) There is no such evidence in this case. To the contrary, there was evidence that Elder said he did not know the reason MacCormac wanted to terminate Berry.
Second, there is no evidence that MacCormac's purported statements to Elder in late 2004 and/or the first part of 2005 were related to Berry's termination in October 2006, and the length of time between them works against Berry's theory. Berry did raise an issue of fact as to whether MacCormac testified falsely about making these purported statements in light of Lemar-Hakimi's and Groom's testimony (albeit hearsay testimony unobjected to by the Bank). Nonetheless, Berry did not put forward any evidence that MacCormac's purported statements were related to her termination in October 2006 during a well-documented TSR program that MacCormac applied to all 27 PFRs in the region.
Third, Berry likewise does not put forward any evidence that Elder's purportedly unfair singling out of Berry during his tenure as branch manager in 2005 had any bearing on her ultimate employment termination, or was the result of instructions from MacCormac. Furthermore, there was no evidence that MacCormac said anything to the 2006 Dublin branch managers, Lam and then Galang, about terminating Berry's employment other than because of her objectively subpar TSR performance. Also, the evidence of such alleged unfairness was based on significant conjecture on the part of Lemar-Hakimi and Groom, involved relatively minor and/or only occasional incidents, much of which occurred in 2005, including those for which there was a legitimate basis for management concern, and did not include any evidence that these incidents were used in any effort to terminate her employment.
Fourth, Berry's claim that MacCormac unfairly exercised his discretion to terminate PFRs for subpar TSR performance as seen by his decision to keep one subpar performer and allow another to transfer does not withstand scrutiny. It was not disputed that the first subpar performer was within .10 of achieving the minimum goal of 5.40, unlike Berry, or that the other requested a transfer to a non-sales position, also unlike Berry. On their face, MacCormac's decisions appear to be rational and reasonable, rather than evidentiary support for Berry's pretext theory.
Fifth, Berry's contention that MacCormac's turning over the administration of the TSR program to branch managers after terminating Berry's employment in October 2006 bears on MacCormac's credibility is also unpersuasive. MacCormac terminated Berry and two other PFRs on the same day. While he subsequently turned over the monitoring of TSR to branch managers, there is no evidence that this meant a PFR's TSR performance was no longer important. In light of these facts, we fail to see the significance of this event to MacCormac's credibility.
In short, we conclude that the trial court properly found that Berry did not raise any triable issue of material fact regarding pretext. Our conclusion is based on the same analysis as that employed by our Supreme Court in Guz, supra, 24 Cal.4th 317. As we have discussed, the Guz court found that, "even without considering Bechtel's explanation, Guz's evidence raised, at best, only a weak suspicion that discrimination was a likely basis for his release. Against that evidence, Bechtel presented a plausible, and largely uncontradicted explanation" for its actions for reasons unrelated to age. (Guz, supra, 24 Cal.4th at pp. 369-370.) The Guz court concluded that Bechtel was entitled to summary judgment under those circumstances. Similarly here, the Bank presented a plausible and largely uncontradicted explanation for Berry's employment termination, i.e., she repeatedly failed to meet the minimum TSR goal established by the Bank despite warnings and counseling, which failure the Bank had made clear to all PFRs could result in employment termination. Berry was one of three PFRs whose employment was terminated on the same day for failure to meet the minimum TSR goal, the other two being significantly younger than Berry and Caucasian. In response, Berry raised, at best, only a weak suspicion that discrimination was a likely basis for her release. Under these circumstances, Berry has failed to point to evidence raising a triable issue that the Bank's proffered reason for her termination was a pretext for prohibited discrimination. Accordingly, we affirm the trial court's order granting summary adjudication of Berry's race and age discrimination claims.
IV. Berry's Harassment Claims
Berry argues the court erred when it granted summary adjudication regarding her racial and age harassment claims. She claims the trial court erred when it found she had had not exhausted her administrative remedies as required by law regarding her racial harassment claim and misapplied the burden of producing evidence regarding her age harassment claim.
The Bank responds that the trial court correctly ruled that Berry had not exhausted her administrative remedies regarding her racial harassment claim and did not misapply the burden of producing evidence. The Bank further argues that it was entitled to summary adjudication of these claims because Berry did not raise a triable issue of fact supporting her claims of racial and age harassment. As we have already indicated, we conduct a de novo review and are not bound by the trial court's stated reasons for granting summary judgment because we "review its ruling, not its rationale." (Kids' Universe v. In2Labs, supra, 95 Cal.App.4th at p. 878.) We agree with the Bank that Berry did not exhaust her administrative remedies regarding her age discrimination claim and did not raise a triable issue of fact supporting her claims. Therefore, we do not address further Berry's argument about the court's application of the burden of production. A. Failure to Exhaust Administrative Remedies
We affirm the trial court's grant of summary adjudication regarding Berry's racial harassment claim because, as the trial court ruled, her claims were not like or reasonably related to the administrative claims Berry filed with DFEH.
A plaintiff suing based on FEHA must first exhaust the administrative remedies provided by law. (Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1120-1121 [DFEH complaint for gender discrimination did not exhaust administrative remedies on claim for age harassment], cited in Rodriguez v. Airborne Express (9th Cir. 2001) 265 F.3d 890 (Rodriguez) [relied on by the court below in the present case].) In order for a FEHA-related administrative claim to be construed to include a civil claim, the latter would have to be " 'like or reasonably related to' " the former. (Rodriguez, at p. 897, quoting Sandhu v. Lockheed Missiles & Space Co. (1994) 26 Cal.App.4th 846, 849.) "This standard is met where the allegations in the civil suit are within the scope of the administrative investigation 'which can reasonably be expected to grow out of the charge of discrimination.' " (Rodriguez, supra, at p. 897.)
Thus, as the Bank points out, when a plaintiff asserts a FEHA cause of action that is "neither like nor reasonably related to his DFEH claim and [was] not likely to be uncovered in the course of a DFEH investigation," then that "claim is barred by the exhaustion of remedies doctrine." (Okoli v. Lockheed Technical Operations Co. (1995) 36 Cal.App.4th 1607, 1617; see also Rodriguez, supra, 265 F.3d at p. 897 [a racial discrimination administrative claim should be construed to include a claim of disability discrimination because the disability claim was not " 'like or reasonably related' " to it]; Stallcop v. Kaiser Foundations Hospitals (9th Cir. 1987) 820 F.2d 1044, 1050-1051 [upholding the dismissal of gender and age discrimination claims for failure to exhaust administrative remedies because the DFEH complaint alleged only national origin discrimination].)
In support of its motion, the Bank produced administrative claims by Berry made to DFEH, which Berry supplemented; together, their production indicates that Berry filed claims received by DFEH on May 3 and May 8, 2007, and filed an amended claim sometime around September 19, 2007 (the record does not contain a signed, received copy of this claim, which both parties refer to as if filed). None of these claims include a charge of racial harassment. In her May 3, 2007 claim, Berry referred to Galang purportedly informing her on March 1, 2006, that she could not take time off to attend her husband's surgery and subsequently instructing the payroll department to improperly deduct wages from her pay, and to her October 18, 2006 termination. Berry contended she was terminated because of her age, and was retaliated against and denied leave in violation of Government Code section 12945.2 (regarding family leave care). In the substantive section of the May 8, 2007 claim, Berry stated her belief that from December 2004 to October 2006 she "was harassed and treated differently by Marcelina Galang, . . . , Sean Elder, . . . , and Scott MacCormac . . . . because of my age (62)" without further explanation. In her amended claim, she repeated the substance of her May 3, 2007 claim regarding Galang's actions, added her belief that she was terminated because of her race, and stated that she was the only African-American employed through October 2006 at the Dublin branch.
Berry's civil complaint alleged racial harassment based on two specific allegations. First, she alleged that the Bank used "inaccurate, untrue and disoriented" claims in alleging her poor job performance "by incorrectly tracking her time and continually embarrassing and belittling her in front of the other employees." Second, Berry alleged that she was forced by Elder to take the "Diffusing Anger" and "Total Quality Service" classes in January 2005, which employees who were not African-American were not required to take, and which order was cancelled by a human resources representative.
Berry's civil complaint allegations relate to incidents that are not referred to in any of her administrative claims. Furthermore, they were significantly different from the focus of her administrative claims, which referred to specific, unrelated management actions by Galang in 2006, and made a very general, cursory claim of age harassment from 2004 to 2006. Her only mention of racial discrimination in her administrative claim was related solely to her termination in 2006. Under these circumstances, the trial court correctly concluded that Berry's racial harassment allegations in her civil complaint were not like or reasonably related to her administrative claims.
Berry argues that the trial court read her administrative claims too narrowly, and not in accordance with the principles articulated in Sosa v. Hiroaka (9th Cir. 1990) 920 F.2d 1451, 1458 and Baker v. Children's Hospital Medical Center (1989) 209 Cal.App.3d 1057, 1060-1065.) Her short argument, unaccompanied by any discussion of these cases, is unpersuasive. We assume she means we should conclude she exhausted her administrative remedies pursuant to the principle that her administrative claims " 'must be construed with utmost liberality since they are made by those unschooled in the technicalities of formal pleading.' " (Sosa v. Hiroaka, supra, at p. 1458.) We have applied this principle here, but it does not lead to reversal. As the Rodriguez court noted in responding to a similar argument, "[i]t would not be proper to expand the claim . . . when 'the difference between the charge and the complaint is a matter of adding an entirely new basis for the alleged discrimination,' " particularly in light of the very specific allegations of the administrative claim. (Rodriquez, supra, 265 F.3d at p. 897.) B. Berry Did Not Raise A Triable Issue of Fact Regarding Either Harassment Claim
We also conclude that Berry did not raise a triable issue of fact regarding either her racial harassment (assuming for the sake of argument that she had exhausted her administrative remedies) or her age harassment claim.
"A trial court properly grants a motion for summary judgment only if no issues of triable fact appear and the moving party is entitled to judgment as a matter of law. [Citations.] The moving party bears the burden of showing the court that the plaintiff 'has not established, and cannot reasonably expect to establish, a prima facie case . . . .' " (Miller, supra, 36 Cal.4th at p. 460.) As we have already discussed, in reviewing the Bank's motion, we employ the shifting burden of production formula articulated in Aguilar, but the moving party always retains the burden of persuasion. (Aguilar, supra, 25 Cal.4th at p. 850.)
To prevail on her racial or age harassment claims, Berry must show that she was subjected to conduct that was severe or pervasive enough to alter her working conditions and create a hostile work environment, and that this conduct was based on her race or age. (See Miller, supra, 36 Cal.4th at p. 466 [regarding sexual harassment allegations]; Etter v. Veriflo (1998) 67 Cal.App.4th 457, 465-467 [regarding racial harassment allegations].)
The Bank relies on the same evidence it put forward regarding the discrimination claims, much of which we have already discussed, to contend that Berry could not establish a prima facie case of racial or age harassment. This includes Berry's deposition admissions that regional manager MacCormac and Dublin branch managers Elder and Galang never said anything to her that she considered to be racist or derogatory based on her age. The Bank's showing shifted the burden of production to Berry.
We have also already summarized the evidence that Berry cites in her perfunctory appellate arguments, which consists of her claim that Elder in 2005 unfairly singled her out for discipline regarding such things as tardiness and customer service, claims that were based significantly on conjecture and in any event involved relatively minor and/or only occasional work incidents, including those for which there was a legitimate basis for concern by management. We do not need to review this evidence in detail again. Berry offered no evidence that any management actions occurred frequently or involved conduct that was severe or pervasive enough to alter her working conditions and create a hostile work environment.
Furthermore, as we have also discussed, there was no evidence whatsoever that the Bank's management took any action against Berry based on racial or age discrimination. It cannot be reasonably expected that Berry would be able to produce any such evidence. Berry conceded in deposition that she had never been subjected to any comments directed at her age or race, and no other witness to purportedly unfair management actions provided any facts that would support such a claim. (See Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 878 [noting that it was no more reasonable to infer certain conduct had a racial motive as to infer it was race neutral].) To the extent that Berry also relies on testimony about what Elder said MacCormac told him, and MacCormac's denial of these statements, there was no evidence that any of this involved racial or age discrimination. Therefore, Berry's argument that we should reverse the trial court's grant of summary adjudication regarding Berry's harassment claims because she raised triable issues of fact is without merit.
In light of our affirmance of the trial court's grant of summary adjudication regarding each of Berry's claims, we have no need to address Berry's argument that the trial court erred when it granted summary judgment regarding her punitive damages claim.
DISPOSITION
The trial court's rulings are affirmed in their entirety. The Bank is awarded its costs of appeal.
Lambden, J. We concur: Haerle, Acting P.J. Richman, J.