Opinion
Case No. C 13-1294 SC
02-24-2014
CATHERINE FROMSON Plaintiff, v. GEORGIA-PACIFIC CONSUMER PRODUCTS LP, Defendant.
ORDER GRANTING DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
Now before the Court is Defendant Georgia-Pacific Consumer Products LP's ("Georgia-Pacific") motion for summary judgment against Plaintiff Catherine Fromson. ECF No. 22 ("MSJ"). The motion is fully briefed, ECF Nos. 24 ("Opp'n"), 25 ("Reply"), and suitable for decision without oral argument, Civ. L.R. 7-1(b). As explained below, the motion is GRANTED.
II. BACKGROUND
A. Procedural Background
The parties have undertaken no motion practice up to this point. Plaintiff originally filed her action in Contra Costa County Superior Court against Georgia-Pacific and one of its employees, Rick Rising. Both Defendants removed on March 22, 2013. On June 28, 2013, the parties stipulated to allow Plaintiff to file her first amended complaint. ECF Nos. 13 ("Stip."), 14 ("FAC"). Defendants answered the FAC on August 5, 2013, and the parties proceeded with discovery. Discovery closed on January 3, 2014, the same day Defendants moved for summary judgment. On January 10, 2014, Plaintiff dismissed her claims against Mr. Rising with prejudice. ECF No. 23. The Court now rules on Defendant's motion for summary judgment as to Georgia-Pacific alone, since Mr. Rising has been dismissed.
Throughout the rest of this Order, the Court refers to Georgia-Pacific as "Defendant."
B. Factual Background
i. Plaintiff's Employment with Defendant
This is an employment discrimination case. Plaintiff is a 51-year-old woman. ECF No. 25-1 ("Pangborn Decl. II") Ex. G ("Stallings Decl. II"). She began working at Defendant's predecessor, James River, in 1986, and in or around 2001, Defendant acquired James River -- by that time called "Fort James" -- and promoted Plaintiff to the position of Customer Sales Manager ("CSM"). ECF No. 24-2 ("Fromson Decl.") Ex. F ("Pl. Depo.") 22:6-12, 24:25-25:20. Throughout her ten-year tenure at Defendant, she worked at Defendant's San Ramon, California office. Pl. Depo. 32:25-33:3. As CSM, Plaintiff worked solely with the grocery store Safeway, a major customer of Defendant, handling sales of Defendant's tabletop and napkin products. Id. 25:13-25, 34:16-22. Defendant compensated Plaintiff with a base salary and a sales incentive pay ("SIP") bonus, paid twice yearly at managers' discretion, based on the performance of both teams and individual CSMs. Id. 47:21-48:11.
Both Plaintiff and Defendant introduce Plaintiff's Deposition. The Court cites to it specifically, instead of referring to the different portions the two parties filed.
According to the "Roles, Responsibilities & Expectations" ("RR&E") document she created each year and reviewed with her manager, one of Plaintiff's main responsibilities was to "Drive Profitable Growth and Strengthen Customer/Market Position." Id. 38:3-39:3, 47:9-20 & Exs. 10, 11 ("RR&E's"). As part of this responsibility, Plaintiff was expected to implement strategies to grow revenue, year-over-year gross profit margin, and market share of Defendant's Dixie and Vanity Fair brands. Id. & Exs. 10, 11. Plaintiff's performance was measured by her ability to meet or exceed net revenue year-over-year growth objectives, and to maintain and grow dollar share across Dixie and Vanity Fair products. Id. 39:10-40:1 & Exs. 10, 11. Her performance was also evaluated according to her ability to budget Defendant's advertising, coupon, and promotional dollars -- "trade dollars" -- to increase product sales to Safeway, thereby selling more products and affording Safeway more ads, coupons, and promotions from Defendant. Id. 40:19-22, 42:18-22, 56:20-57:3. Plaintiff was also expected to forecast sales for production planning and trade dollar purposes. Id. 42:23-43:7.
Two of Plaintiff's supervisors are important to this case: Division Vice President of Sales Rick Rising, and Brandon McDonald, who in December 2009 became the Sales Director for the Safeway Sales Team (Plaintiff's team) and Plaintiff's direct supervisor. Id. 53:16-19; ECF No. 22-1 ("Pangborn Decl. I") Ex. C ("Rising Decl.") ¶ 7. In August 2010, Plaintiff told Mr. McDonald that she believed she was not being compensated at a competitive level. Pl. Depo. 57:20-58:6. Around that time, Defendant hired another employee, Alana Ornellas, whom Plaintiff attests was being compensated "more at market" than she was, partly due to her having been hired more recently. Id. After Plaintiff spoke with Mr. McDonald about this, Mr. McDonald approached Mr. Rising to ask for a salary increase for Plaintiff, whom he described as a key part of Defendant's Safeway team. Rising Decl. ¶ 7. Mr. Rising in turn asked his supervisor, and ultimately, Plaintiff had two salary increases approved: one for 9 percent and the other for 10 percent, for a total salary increase of 19 percent. Id.; Pl. Depo. 58:7-19.
ii. Plaintiff's Performance
Sales of Defendant's tabletop products to Safeway began to decrease in 2009. Pl. Depo. 53:22-54:8. Defendant's sales to Safeway had been above the industry average for some time, id. 83:3-16, though according to Plaintiff, in 2009-2010, Safeway's private-label brand began to cut into Defendant's sales, and a poor economy affected Defendant's sales as well, id. 54:5-8, 55:23-56:8. As Plaintiff stated, even with a decline in sales, Defendant remained over-shared in the Safeway market, though she believed that there was little she could do, personally, to improve Defendant's sales. Id. 83:3-16, 109:17-19, 110:5-7. She believes that during this time, her entire sales group was mismanaged by Mr. McDonald, overburdened with work, and short-handed. Id. 43:18-44:11, 94:1-8, 104:3-8.
The performance reviews Plaintiff supplies in this case indicate that between 2008 and 2012, she was a hard-working, creative, collaborative, experienced, often passionate employee who had an excellent relationship with Safeway. See generally ECF No. 24-2 ("Pl. Decl.") Ex. A at B-0008-09, ("2008 Review"), B-0010-12 ("2009 Review"), B-0016-17 ("2010 Review"); Pl. Decl. Ex. B ("2011 Review") (collectively, "Reviews"). Generally, Plaintiff's reviews also indicate that throughout the years, Plaintiff had difficulty with forecasting and analytics, especially after the rollout of a new tool, "iPlan"; and also, to some degree, with being proactive and meeting deadlines. Id. Plaintiff's 2010 Review also indicated that "her frustrations have had an impact on the team's morale . . . ." The Reviews show a decrease in Plaintiff's overall performance review ratings between 2008 and 2011. Each of Plaintiff's Reviews has a range of three boxes: "Below Expectations," "Meeting Expectations," and "Exceeding Expectations." Each of these boxes, in turn, is divided into three sub-boxes. Plaintiff's overall performance review rating moved from the low end of "Exceeding Expectations" in December 2008, to the middle of "Meeting Expectations" in January 2010, to the low end of "Meeting Expectations" in December 2010, to the high end of "Below Expectations" in January 2012. Id.
The 2011 Review was formulated in December 2011, corrected per Plaintiff's comments and challenges, and then reissued in 2012. See Pl. Depo. 160:3-21. Plaintiff's corrections did not concern discrimination. Id. The revised version indicates several declines in volume, revenue, and gross margin in Safeway stores as to the Dixie plate and Vanity Fair napkins products. 2011 Review at 1-2.
iii. The Beginning of Plaintiff's Workplace Problems
Plaintiff's workplace issues relevant to this case began in 2010, with two major events triggered by Plaintiff's behavior in the office. In October 2010, after being asked to participate in an ad hoc phone meeting, Plaintiff refused and left the building. Id. 67:20-69:21. She explained that she was "very frustrated with the direction the team was going and the support and leadership we were getting," but noted that she was "not proud of" her reaction to the request to participate in the meeting. Id. 69:15-21. Also, Plaintiff was frustrated with the use of a new planning tool, "iPlan," and she frequently shared these frustrations with her team. Id. 61:13-21, 63:12-20, 64:2-16.
On Friday, June 17, 2011, a Safeway Director sent an email requesting Plaintiff's team's recommendations for Thanksgiving and Christmas sales and promotions. Pl. Depo. 79:14-19; Pangborn Decl. I Ex. 21 ("Safeway Email"). Mr. McDonald asked Plaintiff about her strategy on this matter, and Plaintiff told him that she would be out of the office on vacation until June 22, requesting that he take the lead on the project in her absence. Safeway Email at 1. He responded with disappointment, telling Plaintiff that he wanted her to "own tabletop." Id. Plaintiff believed that Mr. McDonald should have been willing to pick up some of his team's work, as they did for each other. Pl. Depo. 80:17-25, 81:1-20. On June 23, 2011, after Plaintiff returned to her office, she and Mr. McDonald had a "heated discussion." Id. 89:13-17. Plaintiff was planning to go out of town again, but new responsibilities had arisen, and the team was short-handed, leaving Plaintiff without the time or capacity to complete the work. Id. 90:18-25, 91:1-6, 91:16-22. Plaintiff's discussion with Mr. McDonald became a discussion about her performance and her opinion of his work. See id. 97:13-25, 98:1-8. Plaintiff ended the conversation but stayed in the office to work. Id. 95:10-25, 96:1-25, 97:1-6.
After this, Mr. McDonald discussed Plaintiff's performance issues and attitude with Mr. Rising and Defendant's Human Resources Director, Ann Stallings. Rising Decl. ¶ 9. This discussion resulted in an agreement to send Plaintiff a written warning, which would include a message that Plaintiff would not receive a SIP bonus because, as Mr. Rising stated, "we wanted to impress on Ms. Fromson that her performance was unacceptable and had to improve; we also believed that paying the SIP bonus would send the wrong message about the severity of her performance issues." Id.
That warning, Pangborn Decl. I Ex. 22, dated July 6, 2011, comports with this description of the discussion, indicating that Mr. McDonald had in November and December 2010 identified several "improvement areas" for Plaintiff: "Respect and Humility," "Work Style / Response Time," "Customer Wiring," "Forecast Accuracy," and "Financial / Analytical Thinking." The warning states that Plaintiff's performance in those areas had been unacceptable, and that her "refusals to participate in team meetings, complaining about a lack of resources and [conduct on June 23, 2011] are representative of a work attitude that is a distraction to the team and is inconsistent with our Guiding Principles." Id. The warning stated that Plaintiff had not attended to "repairing the issues that are contributing to the business decline," that she had not been engaged with her team, and that she had lacked commitment to follow through with training and to meet deadlines. Id. It concluded with a statement that Plaintiff's performance did not merit a SIP bonus, and that future incidents of disruptive and disrespectful behavior would result in Plaintiff's "immediate termination." Id.
Around July 6, 2011, when the warning issued, Mr. McDonald told Plaintiff that he had formally contacted HR to "regarding perceived performance issues" on Plaintiff's part. Id. 115:13-25, 116:1-10. In that discussion, Mr. McDonald read through the warning with Plaintiff, and Plaintiff told him that she would refute the letter. Id. 116:1-10. She received a copy of the letter that evening, id., after which she emailed Ms. Stallings -- Defendant's HR Director -- to state that the warning letter, which she had not yet seen, was inaccurate. Pangborn Decl. I Ex. 25 ("July 6 Stallings Email"). She asked to meet with someone in HR to discuss the matter, stating that she was "baffled by the accusations" given her twenty-five-year tenure. Id. The July 6 Stallings Email does not include any accusation of discrimination. Id. Ms. Stallings responded to Plaintiff that Mr. McDonald had contacted her to discuss performance concerns and his intention to share the warning with Plaintiff. Id.
iv. Defendant's Alleged Discrimination
Plaintiff talked with Ms. Stallings and sent a follow-up email on July 8, 2011. Pangborn Decl. I Ex. 25 ("July 8 Stallings Email"). In it, she defended her positive work history, noted her salary increase, and stated that she is "unclear as to why" she received performance criticisms. Id. Accusations of discrimination arose for the first time in this record when Plaintiff wrote in the July 8 Stallings Email, "Since my 25 year history is very good, I must believe the reason must either be related to my gender or age. If that is true, it concerns me greatly." Id. She also stated that her designation as a home-based employee, which allowed her to work from home several days a week, had been revoked, which she believed was due to her supervisor's attempt to make the employment environment so difficult that she would quit. Id. She made the same allegation as to the reasons behind her being refused a SIP bonus. Id. Finally, she stated that her supervisor had begun to send her emails setting forth "unrealistic and unachievable" timelines, allegedly to create a hostile work environment or to "paper" a file to support her termination. Id. Plaintiff concluded her July 8 email by asking Ms. Stallings what workplace process applies when a supervisor is "illegally discriminating against an employee or otherwise violating laws that apply to the workplace." Id.
Plaintiff also sent Ms. Stallings a chain of emails as proof of mistreatment to support her complaint against Mr. McDonald. Pl. Depo. 121:6-9; Pangborn Decl. I Ex. 26 ("Planning Prep. Email"). In those emails, Mr. McDonald had emailed Plaintiff and Ms. Ornellas about miscellaneous planning preparations, to which Plaintiff responded that she needed help prioritizing the 17.75 hours remaining in her week. Id. She also provided a list of things that needed to be done, seeking to indicate to Mr. McDonald that there were not enough hours in the week to complete the list. Pl. Depo. 121:18-25, 122:1-13. Mr. McDonald responded to Plaintiff that he wanted her to schedule time with him to discuss specifics, though in the alternative they could discuss them at a scheduled meeting. Planning Prep. Email. He requested that she finish one item, "playbook summaries," before the scheduled meeting, and noted that other planning listed in an earlier email remained critical. Id. Plaintiff said that she never had the meeting on priorities with Mr. McDonald, and that many emails from him stopped after her comment to Ms. Stallings that she believed he had been "papering the file" in advance of her termination. Pl. Depo. 123:17-21.
Plaintiff stated during her deposition that she did not believe that Mr. McDonald was harassing her or discriminating against her because of her sex or age until she received the warning. Pl. Depo. 84:2-6. She said that because she believed that the warning's criticisms were not factual, the warning could not have been based on her performance, so according to Plaintiff, "It had to have been based because I'm older and I am a woman." Id. 83:17-84:6.
In response to Plaintiff's July 8 email, Ms. Stallings and Mr. Rising traveled to San Ramon to investigate Plaintiff's complaints. Pangborn Decl. I Ex. D ("Stallings Decl.") ¶ 7. After interviewing Plaintiff, her co-workers on the Safeway team, and Mr. McDonald, Mr. Rising and Ms. Stallings concluded that no discrimination had occurred. Id.; Pl. Depo. 137:13-25.
However, Ms. Stallings did tell Plaintiff that the investigation "had revealed or shown some management opportunities for Mr. McDonald," meaning essentially that he was an inexperienced manager who needed guidance in motivating his subordinates. Pl. Depo. 137:22-25; Stallings Decl. ¶ 7. This resulted in Mr. Rising assuming a mentoring role for Mr. McDonald and taking a direct role in supervising Plaintiff. Pl. Depo. 138:4-9; Stallings Decl. ¶ 7. Mr. McDonald still served as manager, though his correspondence with Plaintiff slowed. Id.
Ms. Stallings indicated that the opportunity to earn an SIP would still be available to Plaintiff, despite the warning's statement otherwise, and she also said that the warning would be rescinded. Pl. Depo 138:20- 139:1-10. Even so, Plaintiff stated that she was ambivalent about the investigation's results, because though she thought it important that Mr. McDonald was on a developmental plan, she did not like the fact that, in her opinion, the warning had been "brushed aside." Id. 139:15-22. Ms. Stallings stated that the warning was removed from Plaintiff's personnel file because HR had decided "that the extent to which [Plaintiff] had been fully warned about her performance issues before the warning was unclear." Stallings Decl. ¶ 7. Ultimately, one member of the Safeway team -- Nancy Nelson, a 57-year-old woman -- did receive a SIP bonus for the first half of 2011, "based on her work on deduction management and reconciliation." Id. ¶ 8. No one else on the team received a SIP bonus. Id.
After the investigation, Mr. Rising began to communicate with Plaintiff more frequently, emailing her daily or weekly when he had previously contacted her quite rarely. Pl. Depo. 138:4-9, 177:19-178:5. Plaintiff does not contend that the content of these emails was discriminatory or threatening, though she stated that she did not like the increased focus and attention related to her business. Id. 178:6-179:-9. A review of emails between Mr. Rising and the Safeway team, including Plaintiff, shows one email that encourages Plaintiff and the Safeway team to continue being creative and executing plans for growth. Pangborn Decl. I Ex. 40 ("Sept. 19 Email"). He also emailed Plaintiff to ask her not to conduct an important presentation over the telephone. Id. Ex. 41 ("Sept. 21 Email"). Throughout this time, Safeway shares continued to decline. Pl. Depo. 157:1-21
Separately from these emails and Mr. Rising's heightened involvement with the Safeway team, Plaintiff maintains that even before she had received the warning from Mr. McDonald, Mr. Rising had harassed her or discriminated against her due to her sex and age. Pl. Depo. 84:7-10. She did not say so in her complaints to HR about the June warning. Id. 118:10-15. Nevertheless, Plaintiff provided several examples of what she alleges to have been discriminatory or harassing behavior by Rising. Id. 84:7-11.
First, she said that when she, Mr. Rising, and several other employees were waiting for rides to the airport in Orlando, Florida, Mr. Rising and another male employee took a taxi while Plaintiff had to wait for a shuttle. Id. 84:11-85:11. Second, she observed that even before Mr. McDonald was her manager, she had discussed with her then-manager Pete Thomsen that Mr. Rising never seemed to talk to her at meetings or other work events. Id. 85:12-86:11. Finally, Plaintiff recalled a meeting that occurred during the Orlando trip mentioned above. Id. 86:12-24. At the meeting, the only empty seat was next to Plaintiff, though another employee had recently left his seat to d o something else, leaving his belongings on or near the seat. Id. When Mr. Rising arrived at the meeting, rather than taking the empty seat next to Plaintiff, he moved the other employee's things and sat down in that seat. Id.
v. Plaintiff's Termination
In early April 2012, Ms. Ornellas resigned. Rising Decl. ¶ 17. She had been the Senior CSM for Safeway's tissue and towel categories, with Plaintiff owning the napkin and tabletop categories. Id. At this point, Defendant determined that the decreased revenue generated by Safeway did not warrant having two CSM positions for those Safeway products, which Plaintiff agrees made sense as a business decision. Id.; see also Pl. Depo. 170:11-19, 179:25-180:10. Plaintiff learned from Mr. Rising on April 23, 2012, that Defendant planned to merge the two CSM positions, eliminating her position. Pl. Depo. 169:22-170:8. Plaintiff understood at that time that Defendant was satisfied with her performance (though not with the business). Id. 172:1-25. She said, in distinguishing her performance from the business itself, "[Y]ou can do as much as you can, but you can't necessarily change it." Id. 172:21-25.
Plaintiff does not contend that the decision to eliminate her position was discriminatory, though she stated that she believes that by putting in a younger male that Defendant had "already essentially hired on the side" was discriminatory. Id. 170:13-19. She knew that Defendant had planned to hire a "very high-level business analyst," though she had not been told that she could apply for the position. Id. 179:14-24. When Mr. Rising told her that the positions would be merged, Plaintiff asked Mr. Rising to clarify whether he was saying that he would be hiring someone "outside this room" -- i.e., whether it had already been determined that Plaintiff would not be considered for the new, consolidated position. Id. 180:4-10. Mr. Rising said yes. Id. Plaintiff elected to work a few more days from home before her termination. Id. 180:14-18. Defendant filled the newly merged position with an internal candidate, Chris Johnson. Rising Decl. ¶ 17.
Plaintiff asserts six causes of action against Defendant: (1) retaliation under California's Fair Employment and Housing Act ("FEHA"), Cal. Gov. Code § 12940, et seq.; (2) gender discrimination, id.; (3) age discrimination, id.; (4) wrongful termination in violation of public policy; (5) hostile work environment, id.; and (6) punitive damages. ECF No. 14 ("FAC"). Based on the above facts, which are undisputed, Defendant now moves for summary judgment. Plaintiff opposes the motion.
III. LEGAL STANDARD
Entry of summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Summary judgment should be granted if the evidence would require a directed verdict for the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). The moving party bears the initial burdens of production and persuasion. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir. 2000).
"In order to carry its burden of production, the moving party must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial." Id. "In order to carry its ultimate burden of persuasion on the motion, the moving party must persuade the court that there is no genuine issue of material fact." Id. A genuine issue for trial exists if the non-moving party presents evidence from which a reasonable jury, viewing the evidence in the light most favorable to that party, could resolve the material issue in his or her favor. Anderson, 477 U.S. at 248-49.
IV. DISCUSSION
A. Discrimination
Plaintiff asserts causes of action against Defendant for gender and age discrimination under California Government Code section 12940. FAC ¶¶ 44-54. Both claims are premised on her allegations that Defendant singled her out for harsher treatment, withheld her SIP bonuses, issued negative performance reviews without legitimate purposes, and ultimately terminated her employment under false pretenses. Id. ¶¶ 45, 50. Defendant moves for summary judgment of both of Plaintiff's discrimination claims. MSJ at 14-18. Defendant argues that Plaintiff cannot state a prima facie claim for discrimination based on her failure to receive a SIP bonus in July 2011, and that it is questionable that she could state a prima facie claim based on her negative performance reviews and termination. Id. Defendant also argues that even if Plaintiff could state a prima facie claim for discrimination, Defendant has stated legitimate, nondiscriminatory reasons for not issuing a SIP bonus, giving her poor reviews, and terminating her employment. Id.
"Because of the similarity between state and federal employment discrimination laws, California courts look to pertinent federal precedent when applying [their] own statutes." Guz v. Bechtel Nat'l, Inc., 24 Cal. 4th 317, 354 (Cal. 2000). In particular, California has adopted the three-stage burden-shifting test established by the United States Supreme Court, the McDonnell Douglas test, for trying claims of discrimination based on a theory of disparate treatment. Id. "'Disparate treatment' is intentional discrimination against one or more persons on prohibited grounds." Guz, 24 Cal. 4th at 354 n.20. The "McDonnell Douglas test reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially." Id. at 354.
Under the McDonnell Douglas test, a plaintiff alleging disparate treatment must first establish a prima facie case of discrimination. Chuang v. Univ. of Cal. Davis, 225 F.3d 1115, 1123 (9th Cir. 2000). "The burden of production, but not persuasion, then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the challenged action. If the employer does so, the plaintiff must show that the articulated reason is pretextual 'either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence.'" Id. at 1123-24 (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981)).
When a plaintiff presents direct evidence that the proffered explanation is a pretext for discrimination, "very little evidence" is required to avoid summary judgment. EEOC v. Boeing Co., 577 F.3d 1044, 1049 (9th Cir. 2009). In contrast, when a plaintiff relies on circumstantial evidence to show pretext, "'that evidence must be specific and substantial to defeat the employer's motion for summary judgment.'" Id. (quoting Coghlan v. Am. Seafoods Co. LLC, 413 F.3d 1090, 1095 (9th Cir. 2005)). In performing this analysis, the Ninth Circuit has cautioned that district courts should consider a plaintiff's "claim of discrimination 'with regard to each of these employment decisions separately, examining the specific rationale offered for each decision and determining whether that explanation supported the inference of pretext.'" Odima v. Westin Tucson Hotel Co., 991 F.2d 595, 600 (9th Cir. 1993) (quoting Norris v. City & Cnty. of S.F., 900 F.2d 1326, 1330 (9th Cir. 1990)).
To establish a prima facie case of discrimination, a plaintiff generally must provide evidence that (1) she was a member of a protected class, (2) she was qualified for the position she sought or was performing competently in the position she held, (3) she suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive. Guz, 24 Cal. 4th at 355; Nicholson v. Hyannis Air Serv., 580 F.3d 1116, 1123 (9th Cir. 2009). Sometimes the fourth prong is analyzed in terms of whether a plaintiff can show that "similarly situated individuals outside [her] protected class were treated more favorably." Johnson v. Chevron Corp., 472 Fed. App'x 428, 429 (9th Cir. 2012) (quoting Leong v. Potter, 347 F.3d 1117, 1124 (9th Cir. 2003) and citing Brooks v. City of San Mateo, 229 F.3d 917, 23 (9th Cir. 2000)).
i. Defendant Contends that Plaintiff Cannot State a Prima Facie Claim for Discrimination
Defendant does not dispute that Plaintiff was a member of a protected class or that there were adverse employment actions, but it does challenge Plaintiff's qualifications and performance in certain respects, and it contests Plaintiff's circumstantial evidence of discrimination.
a. Plaintiff's SIP Bonus Rejection and Negative Reviews
First, as to Plaintiff's claims based on her negative performance reviews and the rejection of her 2011 SIP bonus, Defendant contends that Plaintiff cannot state a prima facie claim of discrimination because she cannot identify any male employees who were treated more favorably. Reply at 9 (citing Guitron v. Wells Fargo Bank, N.A., No. C 10-3461 CW, 2012 WL 2708517, at *19 (N.D. Cal. July 6, 2012) (applying that comparative treatment test)). Defendant further argues that even if Plaintiff had stated a prima facie case here, it had a legitimate, non-discriminatory reason for issuing negative performance reviews and refusing to give her a bonus: the undisputed objective measures of her job performance showed decline, despite Plaintiff's excuses that there was nothing she could do to help the business, and Plaintiff did not appear to understand the importance of focusing on a solution. MSJ at 15; Reply at 9.
Plaintiff contends that she was a capable and competent consumer sales manager for Defendant, and that no jury would believe Defendant's contentions regarding her performance were appropriate or "legitimate business reasons." Opp'n at 15. She states that the only reason for her low performance reviews, given her twenty-five years of good performance, is that "Rising is a misogynist who thinks women should be relegated to secretarial 'women's roles,' just as with Nancy Nelson." Id. Plaintiff contends that the admissible evidence shows that she was "doing just fine, and it was only Rick Rising who wanted [her] gone. The reason [Plaintiff] was fired was not her objective performance, it was Rick Rising's biased perception of her as an older female who was 'overly emotional' and working outside of a female secretary's role." Id. at 15-16.
In determining whether a plaintiff is "qualified" for purposes of establishing a prima facie case under McDonnell Douglas, the Ninth Circuit "has long held" that "[t]he qualifications that are most appropriately considered at step one [of McDonnell Douglas] are those to which an objective criteria can be applied . . . ." Nicholson, 580 F.3d at 1123 (quoting Lynn v. Regents of Univ. of Cal. , 656 F.2d 1337, 1345 n.8 (9th Cir. 1981)). Accordingly, the Court cannot hold that Plaintiff's subjective evaluation of her performance is sufficient to raise a triable question of fact. See Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270 (9th Cir. 1996).
The undisputed evidence does not comport with Plaintiff's narrative about her competent performance here. Plaintiff states that it "defies common sense" that she would have received a salary increase in 2010 if she had been such a deficient worker. She continues that Defendant's business with Safeway was excellent during this time, citing her performance reviews from 2008 to 2010 and her declaration that "[d]uring the ten years I was one of the two primary sales contacts with Safeway, our business and our relationship with Safeway was excellent." ECF No. 24-2 ("Pl. Decl.") ¶ 2-3 & Ex. A ("Reviews"). However, the record shows that there are no genuine issues of material fact as to Plaintiff's performance per her Reviews or rejection from consideration for a SIP bonus.
These Reviews are the same as the ones provided with Defendant's motion. Compare Pl. Decl. Ex. A with Pangborn Decl. Exs. A-B.
Plaintiff's own evaluation of her performance is insufficient to raise an issue of material fact here. Bradley, 104 F.3d at 270. In evaluating the Reviews, it is undisputed that while Plaintiff received an overall positive review in 2008, at the low end of "Exceeding Expectations," the review for 2009 indicates that she missed several performance benchmarks and needed to improve forecasting, warranting a "Meeting Expectations" mark. 2009 Review at 1-3. For example, Plaintiff's review for that year states, "We missed the first 5 months of the year promoting Napkins," Plaintiff "wasn't able to secure distribution [for the Perfect Touch cup product] during October review," and "Standard count plate promotions were not initiated until May." Id. at 1.
In her 2010 Review, Plaintiff continued to miss forecasting benchmarks, showed difficulty with the iPlan system, and was noted to have had "issues with respect to others," thereby lowering morale, despite being a "tireless worker who takes tremendous pride in what she does" and having a strong relationship with Safeway. 2010 Review at 1-2. She was rated at the low end of "Meeting Expectations" despite the review stating that she was a "good fit for this team" and "has positioned herself and her business for an outstanding 2011 and beyond." Id. at 2. In terms of Plaintiff's sales performance, the 2010 Review indicates under "Missed Opportunities" that Defendant forecasted a $2.1 million net revenue decrease from the previous year's sales, in part a result of declining sales for Dixie plates and Vanity Fair napkins at Safeway. 2010 Review at 1 ("2010 forecasted to lose 40k stat / $2.1M Net Rev vs. LY -- driven by 2H 2010 declines (Dixie + Napkin)").
Plaintiff's 2011 Review, as corrected, indicates that Plaintiff continued failing to meet her benchmarks, and that Safeway's Dixie and Vanity Fair shares continued to drop. 2011 Review at 3-4. The 2011 Review also notes behavioral issues, id. at 4, and ultimately gives Plaintiff an overall performance review at the high end of "Below Expectations," id. at 5. Despite Plaintiff's categorization of the 2008-2010 Reviews as being "consistently positive," Pl. Decl. ¶¶ 2-3, the objective reading of those Reviews is that, while she was at one time rated at the low end of "Exceeding Expectations," for 2009 and 2010 she never exceeded the overall "Meeting Expectations" review. In terms of the sales numbers reflected in the 2011 Review, the "Missed Opportunities" section notes that while the Dixie napkin and total Georgia-Pacific napkin share rose 4.1 and 2.1 points, respectively, the Dixie volume dropped by 15.7 percent; revenue dropped 14.4 percent; gross market dropped 14.1 percent; and the overall share dropped by 2.3 points. 2010 Review at 3; Pl. Depo. 157:10-158:10 (affirming the interpretation of those numbers and noting that only Plaintiff's numbers were down). Vanity Fair napkin sales all declined, with volume dropping 22.4 percent, revenue falling 32.7 percent, gross market reduced by 51.4 percent, and overall share down by 2.0 points. Id.
Plaintiff confirmed that by July 22, 2011, Dixie sales to Safeway had attained only 51.7 percent of the forecasted numbers -- a sub-optimal outcome. Pangborn Decl. Ex. 43 ("Rising Email to Safeway Team"); Pl. Depo. 149:19-150:22 ("Q: You would agree that [the forecast percentage of 51.7] is not good. Correct? A: Correct."). These facts all show that Plaintiff's objective performance numbers fell below expectations.
The Court finds that Plaintiff has failed to state a prima facie claim for discrimination based on the negative reviews. Plaintiff does not address this directly in her brief, focusing mainly on Defendant's purportedly "legitimate, non-discriminatory" reasons for making adverse actions instead of evaluating the bases for the Reviews themselves. See Opp'n at 9, 17 (discussing the negative reviews in context of Defendant's decisions regarding the SIP bonus and the termination). Yet to the extent that Plaintiff charges that Mr. Rising's negative review was discriminatory, and that Mr. Rising was a "misogynist who thinks women should be relegated to secretarial 'women's roles,'" who also viewed Plaintiff as "an older female who was 'overly emotional' and working outside of a female secretary's role," no facts on the record support Plaintiff's contention, as explained below.
These specific accusations only appear in Plaintiff's opposition brief, which purports to provide evidence of Mr. Rising's opinions about women. Plaintiff's brief states, "Rising also thought Plaintiff was 'overly emotional,' one of the ways in which he revealed his gender/age bias." Opp'n at 7 (citing Pl. Depo. 63:2-10. But the evidence Plaintiff cites, part of her deposition, says nothing like that -- and it certainly does not include the phrase "overly emotional," despite the brief's summation of Mr. Rising's thoughts. Rather, that portion of the deposition, consisting of questioning from Defendant's counsel relating to feedback about Plaintiff from her co-worker Ms. Ornellas, reads in full:
Q. So it sounds like to the extent that your coworkers or your managers believed that you reacted emotionally or you reacted inappropriately to frustrations, that you would believe they were off base. Is that correct?This does not comport with Plaintiff's characterization of the facts in her brief. Plaintiff treats a question from Defendant's counsel as if it were a statement or opinion from Mr. Rising, but there is nothing anywhere in the record to support such a statement of fact based on the evidence Plaintiff cited.
[Objections omitted.]
THE WITNESS: They said I acted in appropriately?
Moreover, the feedback that served as the source of Defendant's counsel's question came from Ms. Ornellas's internal review of Plaintiff -- "360 feedback" in workplace parlance -- which stated that Plaintiff, despite having strong work-oriented goals, had "opportunities for improvement" with regard to her "professional maturity and the immediate reactions to people and situations." ECF No. 25-8 ("McDonald Decl.") Ex. A ("Ornellas Review"). Pete Thomsen, Plaintiff's supervisor before Mr. McDonald and after Mr. Rising, similarly stated that Plaintiff "should consider how she reacts to frustrations with our organization" and could improve by working to implement changes to what she found frustrating. McDonald Decl. Ex. B ("Thomsen Review"). Plaintiff stated as to these criticisms, "There is some grain of truth. I will say that." Pl. Depo. 63:12-18. The Court finds ample grounds in the record for Defendant's giving Plaintiff the negative Reviews, and no support for Plaintiff's contention that the Reviews were backed by some discriminatory animus.
Nor does the record show that Mr. Rising thought Plaintiff was a "hysterical female," that Mr. Rising "holds misogynist gender stereotypes about women being illogically over-emotional," or that Mr. Rising had "temper issues and problems with yelling and storming out of meetings with the older females on the Safeway team." Opp'n at 7 (citing Fromson Decl. ¶ 10 & Ex. E). Again, the phrase "hysterical female" appears in quotation marks, as if Mr. Rising or another of Defendant's employees had said it, but it appears nowhere in the evidence Plaintiff cites. Fromson Decl. ¶ 10 & Ex. E. Plaintiff's declaration states, for the first time in this case, that Mr. Rising had temper issues and would micromanage and belittle her after she submitted her complaint to Ms. Stallings. Fromson Decl. ¶ 10. Absent any allegations to this effect or any proof in the record, these are "mere assertions," "without substantial factual evidence," that are insufficient to preclude summary judgment. Steckl v. Motorola, Inc., 703 F.2d 392, 393 (9th Cir. 1983); see also Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991) (affidavits and declarations merely contradicting prior testimony do not create issues of fact).
Further, Exhibit E to Plaintiff's declaration, a chain of emails she sent to Ms. Stallings between July 19 and July 27, 2011, indicate that Plaintiff was seriously concerned about her workplace situation, but never includes quotations from Mr. Rising or descriptions of his allegedly unhinged behavior -- at most, Plaintiff writes, "It has become more and more uncomfortable/toxic in the office. I do not want to go into detail in this email . . . ." This is not proof of Mr. Rising's temperament or discriminatory motive, nor is it a record of what he said at any point. The record contains no evidence whatsoever supporting the contention that the uncomfortable or toxic atmosphere was due to Mr. Rising's actions, except Plaintiff's own declaration and brief, which are "mere assertions" insufficient to preclude summary judgment. Steckl, 703 F.2d at 393.
Finally, there is no proof or issue of fact regarding Plaintiff's claims that Rising relegated women to secretarial and administrative roles and "displayed common gender biases," enforcing typical gender stereotypes regarding "women's work." Opp'n at 6-7, 16-17, 21.
Plaintiff refers to the deposition of Nancy Nelson, a business analyst, to support this point. Plaintiff contends that Mr. Rising assigned Ms. Nelson to administrative or secretarial tasks (e.g., booking travel and meal arrangements), excluded her from sales meetings to prevent her from moving up in the company, only gave women like Ms. Nelson administrative tasks, and refused her repeated requests for pay. Id. at 6-7 (citing ECF No. 24-1 ("Jennings Decl.") Ex. L ("Nelson Depo.")).
Rather than the Jennings Declaration, Plaintiff's brief cites the "McCoy Declaration" throughout. There is no McCoy Declaration in the record for this case. Since the exhibits cited match to the Jennings Declaration, the Court assumes that Plaintiff is referring to that document, but the Court also notes that counsel has an obligation to lay out support clearly so that evidence can conveniently be found. Carmen v. S.F. Sch. Dist., 237 F.3d 1026,
Ms. Nelson does state that the team lacked administrators or secretaries, but contrary to Plaintiff's brief, she does not say that she was the only employee to have been assigned administrative or secretarial work: another employee, "James," was also tasked with such work. Nelson Depo. 35:22-36:9. Moreover, during this time, Mr. Rising had not taken over the Safeway team: Mr. McDonald was still the manager. Id. 37:9-22. After Mr. Rising took over, Ms. Nelson still was tasked with secretarial or administrative work, but so was another of Defendant's employees, Mark Weingartner, though because he was on a different team, Ms. Nelson was the only member of the Safeway work group assigned administrative tasks. Id. 37:11-38:9. It is true that under Mr. McDonald, Ms. Nelson was denied a pay increase for the additional work, but under Mr. Rising, she was not denied an increase, and Mr. Rising did not say anything about "women's work." Id. 38:23-40:3. And though Mr. McDonald -- not Mr. Rising -- asked Ms. Nelson not to attend part of a sales meeting, she testified that it was for the purpose of correcting "a problem with the deductions and post audits," which concerned Ms. Nelson's primary job duties. Id. 32:8-18, 54:3-16.
The Court therefore finds that Plaintiff's statements about Mr. Rising's behavior toward Ms. Nelson raise no triable issues of fact as to his biases as they might relate to Plaintiff's Reviews (or, as noted below, anything else). Indeed, despite Plaintiff's characterization of Ms. Nelson's experience -- however difficult or mismanaged it might have been -- Ms. Nelson testified that she never felt discriminated against due to her sex or her age. Id. 1031 (9th Cir. 2001). 54:25-10.
Plaintiff's brief is replete with quotations that might appear to come from Mr. Rising but do not. The facts often blur accusations between Messrs. McDonald and Rising. Most significantly, the evidence never actually includes much of the purportedly quoted material from Plaintiff's briefs -- in fact, none of the most incendiary quoted phrases, like "women's work" or "hysterical females" ever appears outside Plaintiff's opposition brief itself. The Court does not and cannot find that the undisputed facts suggest that the negative review was issued because Mr. Rising was biased.
The Court notes to Plaintiff that while aggressive advocacy and strong writing are encouraged in our adversarial system, all representations to the Court are subject to Rule 11, and factual contentions not supported by evidence are sanctionable. Further, Plaintiff's accusation that Defendant's staffed its case with female attorneys in order to "mask from the Court the fact that Mr. Rising is a misogynist 'good old boy'" is misleading, unsupported by facts or law, and ultimately unprofessional.
Plaintiff has accordingly failed to state a prima facie claim for discrimination based on the negative reviews: the circumstantial evidence does not show that they were issued with a discriminatory motive, and in any event, the evidence shows that Plaintiff's performance was not competent with regard to certain relevant metrics, as reflected in the Reviews.
Further, there is no material issue of fact as to Plaintiff's performance relative to her not receiving the SIP bonus. Plaintiff herself states that the SIP bonus was "a hundred percent discretionary." Pl. Depo. 48:1-53:1. The Reviews indicate that to at least some degree, her performance was not satisfactory, and she had failed to meet her benchmarks, showing that she was not performing her job satisfactorily. See generally Reviews; compare Reviews with RR&E's at 2-3 (providing "key performance indicators," which the Reviews show Plaintiff failed to meet); see supra. Further, Plaintiff fails to show that the protected class -- in this case, Defendant's female employees -- were unfavorably treated compared to a corresponding subclass, as undisputed evidence shows that the only member of Plaintiff's team to receive a SIP bonus in 2011 was Nancy Nelson, a 57-year-old female business analyst. Stallings Decl. ¶ 8. The Court therefore finds that Plaintiff has failed to state a prima facie claim for discrimination based on her not receiving a SIP bonus: she did not perform her job satisfactorily, and was not treated differently than employees not belonging to the protected class. See Johnson, 472 Fed. App'x at 429; Guitron, 2012 WL 2708517, at *18-19.
Defendant is accordingly entitled to summary judgment as to Plaintiff's claims based on the Reviews and her failure to receive a SIP bonus.
b. Plaintiff's Termination and Defendant's Justification for It
Defendant argues that Plaintiff would not have been qualified for the new, post-termination position, and that even if she had been, Defendant had legitimate, nondiscriminatory business reasons for terminating Plaintiff's employment. Plaintiff contends that the circumstantial evidence proves otherwise. Defendant's argument against pretext is applicable to the other arguments rejected above for Plaintiff's failure to state a prima facie discrimination claim.
Assuming arguendo that Plaintiff could show that she would have been qualified for the combined, post-termination position, Defendant bears the burden of production to articulate its reason for the challenged action. If it can, the burden shifts to Plaintiff to show that the reason is pretextual, and for this Plaintiff must make a "specific and substantial" showing to defeat the motion for summary judgment. EEOC v. Boeing, 577 F.3d at 1049; Coghlan, 413 F.3d at 1095. "Although intermediate evidentiary burdens shift back and forth under this framework, '[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.'" Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000) (quoting Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981)). In other words, once a defendant meets its burden of production, the presumption of discrimination drops, though the trier of fact may still consider evidence supporting the plaintiff's prima facie case and inferences properly drawn from it regarding the issue of whether the defendant's explanation is pretextual. See id. (citing Burdine, 450 U.S. at 253, 55; St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506, 511 (1993)).
Plaintiff is wrong that Defendant bears a high burden of persuasion on this point and must "establish beyond peradventure all of the essential elements [of an affirmative defense] in his favor." Opp'n at 19 (citing Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986)). First, the burden-shifting here concerns burdens of production, not persuasion. Second, Plaintiff's case concerned affirmative defenses, and the McDonnell Douglas test does not. Finally, the Court is not bound by out-of-circuit authority.
Defendant articulates the following reasons for terminating Plaintiff's position and not offering the new one to her. It states that Plaintiff's performance in her previous position, which would have entailed half the responsibility of the new, combined position, was not satisfactory in terms of the objective data or her Reviews. On this point, Defendant points to the undisputed fact that Defendant's sales to Safeway were lower than all other sales, stating that in such a case, no employer would give a new job, with high responsibilities, to an employee who had failed to meet expectations in her previous position. Further, Defendant cites Plaintiff's difficulty prioritizing her tasks, as well as her testimony that she believed external factors -- e.g., Defendant's being "over-shared" at Safeway, the introduction of Safeway's house brand, the effects of recession, and problems presented by her team's being understaffed -- necessarily limited her from doing anything to improve her sales benchmarks. Defendant therefore concludes that its business reasons for terminating Plaintiff's position and not offering her the new job are sufficient.
Plaintiff contends that Defendant has not met its burden to provide legitimate business reasons for Plaintiff's termination. She argues first that Defendant's argument is based on "shifting, contradictory, and unbelievable" assertions, the inconsistencies of which undermine Defendant's position. Opp'n at 19-20. Second, she argues that even if the Court ignores Defendant's "contradictions, mistruths, and outright lies," she can prove pretext either indirectly, by showing that Defendant's proffered explanation is "internally inconsistent or otherwise unbelievable," or directly, by showing that "unlawful discrimination more than likely motivated the employer." Id. at 20 (citing Morgan v. Regents of Univ. of Cal., 88 Cal. App. 4th 52, 68 (Cal. Ct. App. 2000)).
1. Defendant's Explanation is Worthy of Credence
If an employer offers an explanation of its reasons for terminating an employee that is "contradictory, implausible, uninformed, or factually baseless," an inference of dissembling may arise, and the employer's explanation of its actions can be unworthy of credence. Guz, 24 Cal. 4th at 363.
Plaintiff argues that Defendant's assertions reveal three "shifting, contradictory, and unbelievable" reasons for terminating Plaintiff's employment. Opp'n at 19. First, Plaintiff contends that Defendant's statement that it "separated" Plaintiff's employment "as a result of the elimination of [her] position as Customer Sales Manager" is provably false, since Defendant "immediately hired a younger, less experienced, male employee as a 'Customer Sales Manager' for the Safeway team." Id. Second, Plaintiff argues that Defendant's position that it terminated Plaintiff for poor performance is a "tall tale," because Defendant's own evidence shows above-projections sales for the Safeway team, and its assertions of bad performance are premised "solely upon one bad performance review by the man accused of discriminating and retaliating against her, even though she had twenty-five years of good performance, including ten years in that very same position." Id. Third, Plaintiff states that Defendant changed its story to state that Plaintiff was "separated (not fired)" because Mr. Rising wanted to "'restructure' the Safeway team to a structure he had used in other markets." Id. at 20.
Plaintiff fails to show that Defendant's position has changed or become self-contradictory. Plaintiff's first argument is apparently that Defendant's statement that it eliminated Plaintiff's position is inconsistent because it then hired a younger man for the same position -- in other words, her position was never actually eliminated. Defendant did hire a younger man, Chris Johnson, for the new position, but the position is not the same. Stallings Decl. II ¶ 6. Defendant changed the job title from "Senior Customer Sales Manager" to "Senior National Accounts Manager" in December 2013, which Plaintiff suggests meant that Defendant was only changing the title to disguise the fact that the job was the same, but the record shows that from the time of Ms. Ornellas's resignation to the commencement of this litigation, Defendant's position regarding the new job has always been that it combined the duties formerly undertaken by Plaintiff and Ms. Ornellas together, because Defendant no longer thought the Safeway division warranted the cost of having two positions -- a decision that Plaintiff states made sense. See Pl. Depo. 179:10-180:13. The job was not "the exact same role with the exact same duties," Opp'n at 10, given that Plaintiff herself states that the job combined two positions into one. The Court finds that Defendant has not contradicted itself or changed its position on this point.
Second, Plaintiff contends that Defendant's statements about her bad performance are contradictory, because Defendant projected high sales for Plaintiff's Safeway team, and Defendant's purported business reason is premised on one bad performance review by a biased manager. Opp'n at 19. The Court finds that Defendant has not contradicted itself on these points, either. As to Defendant's sales projections, the objective numbers indicate that Plaintiff failed to meet her benchmarks, and the evidence Plaintiff cites -- Defendant's deposition of Plaintiff's co-worker Abdullah Hahris -- does not contradict Defendant's position regarding Plaintiff's performance. In that deposition, Mr. Hahris states that between August 2011 and December 2011, the TTN division, which included Plaintiff's napkin products as well as Ms. Ornellas's tabletop products, exceeded sales projections by over 100 percent each month. Jennings Decl. Ex. K ("Hahris Depo."). As Plaintiff notes, the sales figures are not apportioned between Ms. Ornellas (the "TT" part of the TTN team) and Plaintiff (the "N"), but this does not render Defendant's position contradictory: given Plaintiff's declining performance reviews and metrics during 2011, Defendant's negative evaluation of her overall performance has remained consistent, and mathematically, if Ms. Ornellas had continued to perform well, the overall sales figures would have been higher regardless. The Court finds that Defendant's position remained consistent on this point as well.
It is not entirely clear from the record what Mr. Hahris's position is, but it is undisputed that he was one of Plaintiff's co-workers during the relevant periods, and that he is currently an employee of Defendant.
Finally, Defendant also has not changed its position regarding its reasons for firing Plaintiff with regard to its decision to restructure the Safeway team. Since Plaintiff does not cite to the record in this portion of her brief, Opp'n at 20, it is not entirely clear what she means by this allegation, but given her testimony and the declaration and deposition of Mr. Rising, there does not appear to be any actual dispute as to the reason why Defendant cut one CSM position. See Pl. Depo. 179:10-180:13; Rising Decl. ¶ 17; Pangborn Decl. II Ex. C ("Rising Depo.") 73:2- 24. Defendant may not have enunciated that the reason for its restructuring had to do with a desire to replicate team structures from other markets, but this fact does not change Defendant's story or render its earlier explanations inconsistent.
Accordingly, the Court finds no internal contradictions or baseless statements in Defendant's explanation of its actions. Guz, 24 Cal. 4th at 363; see also Day v. Sears Holdings Corp., 930 F. Supp. 2d 1146, 1173 (C.D. Cal. 2013) (to support a finding of pretext, there must be substantial changes over time in the employer's proffered reason for its employment decision). The Court finds that Defendant has carried its burden on this point, and Plaintiff has failed to persuade the Court otherwise.
2. Plaintiff Fails to Show that Defendant Was Motivated by Unlawful Discrimination
Plaintiff also argues that she can prove pretext by showing that unlawful discrimination more than likely motivated Defendant's actions, because Defendant treated similarly situated employees outside Plaintiff's protected class more favorably. Opp'n at 20 (citing Vasquez v. Cnty. of L.A., 349 F.3d 634, 651 (9th Cir. 2004)). Such circumstantial evidence must be specific and substantial, EEOC v. Boeing, 577 F.3d at 1049, and Plaintiff cannot "simply show that the decision was wrong, mistaken, or unwise," Horn v. Cushman & Wakefield W., Inc., 72 Cal. App. 4th 798, 806-07 (Cal. Ct. App. 1999). As noted above, the Court does not find that Defendant's reasons for Plaintiff's termination were shifting, contradictory, unbelievable, or otherwise insufficient to support its legitimate business reasons argument.
Plaintiff offers several more arguments in support of her contention that her termination was pretextual: that her performance was satisfactory; that in her workplace "females were relegated to subordinate, administrative roles or they were forced out of their jobs by boorish, unacceptable, and harassing behavior by Rising"; and that Mr. Rising "targeted women," "had prejudicial views of women's roles," and considered women to be "overly emotional" and "irrational creatures." Opp'n at 21. Plaintiff also cites Mr. Rising's taking a cab from the airport while Plaintiff took a bus, and Plaintiff's alleged exclusion from group dinners. Id.
None of Plaintiff's contentions are supported by the evidence. As noted above, Plaintiff's performance was objectively below expectations, and her co-workers undisputedly believed that Plaintiff's methods of dealing with and communicating her personal frustrations about the workplace negatively impacted the office's morale. Further, as also explained above, many of Plaintiff's statements about Mr. Rising are not supported in the record: the evidence does not support Plaintiff's allegations that she was "bombarded" or "micromanaged," or that women from Plaintiff's office "endured shouting, yelling, and abusive language" calculated to force them from their jobs. Nor do Plaintiff's assertions about Mr. Rising's social behavior satisfy Plaintiff's burden to show pretext. The facts that Mr. Rising did not invite her to ride in a cab with him, that Mr. Rising took a different seat at a meeting, or that Mr. Rising sometimes avoided Plaintiff do not support the accusation that Mr. Rising was motivated by discriminatory animus. Such actions might be unfair or offensive, but they do not offer specific, substantial support for Plaintiff's burden to show even a suggestion of discriminatory motivation. EEOC v. Boeing, 577 F.3d at 1049.
Plaintiff's other new contention, raised in her brief, also fails to carry her burden on this point. Plaintiff states that Mr. Rising approached Mr. Hahris after Ms. Ornellas's resignation and Plaintiff's termination to say, "Well, are you glad that the two of them are gone now?" Opp'n at 21; Pl. Depo. 214:17-215:5. The only evidence of this on the record is Plaintiff's statement that Mr. Hahris relayed that statement to her after the news of her termination. Pl. Depo. 214:17-215:5. That is inadmissible hearsay, as is Plaintiff's assertion that Mr. Thomsen once told her that Mr. Rising was a "guy's guy" in response to her question about why he might be avoiding her -- a response that, even if it were admissible, would not raise a material question of fact in this case. Plaintiff's brief also cites to paragraph "?" of Ms. Ornellas's declaration, an appropriate citation because she filed no declaration in this case and the Court can find no other support in the record that would fill this citation gap. Opp'n at 8:21. The other witnesses, Mr. Hahris and Mr. Rising, both say that they could not recall hearing or making such a statement. Rising Depo. 117:1-8; Hahris Depo. 21:24-22:13. Plaintiff has failed to carry her burden on this point.
It is not the Court's task "to scour the record in search of a genuine issue of triable fact." Keenan v. Allan, 91 F.3d 1275, 1278 (9th Cir. 1996). Counsel must lay out their support clearly, and the Court need not search the case file for evidence if counsel has not set forth such evidence in its opposition "with adequate references so that [the evidence] could conveniently be found." Carmen, 237 F.3d at 1031. Further, counsel is reminded that an unsupported factual assertion is subject to Rule 11.
Even if Plaintiff had established a prima facie case for discrimination, she has failed to offer any specific, substantive, or probative evidence that Defendant's alleged purpose was a pretext for discrimination against her. Defendant is entitled to summary judgment on both of Plaintiff's discrimination claims.
B. Hostile Work Environment
To establish a claim of hostile work environment under FEHA, a plaintiff must show that (1) she is a member of a protected class; (2) she was subjected to unwelcome harassment; (3) the harassment was based on her protected classification; (4) the harassment unreasonably interfered with her work performance by creating an intimidating, hostile, or offensive work environment; and (5) Defendant is liable for the harassment. Thompson v. City of Monrovia, 186 Cal. App. 4th 860, 876 (Cal. Ct. App. 2010). The Court must also consider the frequency and severity of the allegedly discriminatory conduct -- the behavior must have been severe and pervasive. Surrell v. Cal. Water Svc. Co., 518 F.3d 1097, 1109 (9th Cir. 2008). If the claim is based on isolated incidents, a plaintiff must show that the conduct was "severe in the extreme." Herberg v. Cal. Inst. of the Arts, 101 Cal. App. 4th 142, 151 (Cal. Ct. App. 2002).
Plaintiff argues that the facts show that Mr. Rising harassed her. Opp'n at 22. She claims that he made "the extra, personal effort to make sure that, in the relatively short intervening time between her complaint and being 'downsized,' she was harassed, harangued, micromanaged, and pressured to leave." Id. This behavior allegedly included her being "yelled at, accused of incompetence and being 'overly emotional' and thus unfit for her job due to her gender," as well as her being "repeatedly snubbed and belittled by Rising." Id. She also contends that Ms. Ornellas was subject to the same behavior, and that Ms. Ornellas resigned to escape it. Id. Finally, Plaintiff states that none of this treatment was related to either woman's job duties; none was necessary or ordinarily within the confines of a working environment; and Mr. Rising did not treat any male employees the same way. Id.
Plaintiff also states that Defendant waived any arguments about Mr. Rising's "harassing behavior," such as his alleged shouting, yelling, abusive language, harassment, and other such actions. See Opp'n at 20-21. None of these contentions appeared in the record before Plaintiff filed her brief, so Defendant could not have responded to it, much less waived an argument about it. Plaintiff's position is unfounded and misleading.
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Plaintiff cites no facts to support any of these contentions in her brief. Id. As above, the Court has found no factual support for Plaintiff's contentions about Mr. Rising's alleged opinions about women, especially those purportedly quoted from Mr. Rising, like the assertion that Plaintiff was "overly emotional." Again, the alleged harassment and micromanagement seems to refer to Mr. Rising's more frequent emails and discussions with Plaintiff, which according to the record itself do not show any harassment, haranguing, or micromanagement. All such correspondence is measured and respectful, and the Court does not find that the record supports Plaintiff's position that Mr. Rising was behaving with discriminatory motivations.
Nor can the Court find any evidence in the record that Ms. Ornellas resigned to escape Mr. Rising's behavior, or that Mr. Rising treated male subordinates differently (much less that he mistreated female subordinates). Plaintiff has failed to carry her burden. No one in the case, Ms. Ornellas included, has made such statements, and Plaintiff's mere assertions do not suffice to raise issues of material fact in this case. Steckl, 703 F.2d at 393.
The Court finds that Defendant is entitled to summary judgment on Plaintiff's hostile work environment claim.
C. Retaliation
To establish a prima facie claim for retaliation under FEHA, a plaintiff must show (1) that she engaged in a "protected activity," (2) that the employer subjected the employee to an adverse employment action, and (3) that there was a causal link between the protected activity and the employer's action. Yanowitz v. L'Oreal USA, Inc., 36 Cal. 4th 1028, 1042 (Cal. 2005).
Defendant argues that Plaintiff cannot show a causal link between the protected activity of making a complaint to HR and any adverse employment action, whether that was being passed over for a SIP bonus, being subjected to closer scrutiny from Mr. Rising, or receiving a negative review. MSJ at 19-21. Defendant contends that Plaintiff's complaint from July 2011, and Mr. McDonald's statements in the June 2011 meeting, all occurred before she reported the alleged age or sex discrimination to HR. Id. at 20. Defendant also notes that Plaintiff's work performance was unsatisfactory, warranting her not receiving a SIP bonus, being subjected to closer management scrutiny, and receiving negative employment evaluations. Id. Further, Defendant contends that the ten-month time lapse between Plaintiff's HR complaint and the termination of her employment undermines her causal nexus claims, as does the fact that Mr. McDonald (the only manager about whom Plaintiff made a complaint) was no longer involved in Plaintiff's management when Defendant made the decision to eliminate her position. Id. Defendant concludes by noting that the triggering event for the elimination of Plaintiff's position was the resignation of Ms. Ornellas, so it could not have been the case that Defendant was pretextually waiting for the right time to take action against Plaintiff. Id. at 21.
Plaintiff asserts that the same facts supporting her discrimination claims support her retaliation claim. Opp'n at 18-21. The Court rejects those factual contentions for the same reasons given above: they do not raise any triable issues of fact.
Further, Plaintiff's explanation of the time gap between her protected activity and her termination is purely speculative: she contends that a corporate employee like Mr. Rising, guided by Ms. Stallings in HR, would not have been allowed to terminate Plaintiff immediately. Opp'n at 14. Plaintiff contends that part of the reason for this is that courts have too rigorously applied "time-limiting" tests for retaliation claims, thereby broadcasting to employers that they should not fire employees "within a few months of a complaint," and resulting in employers "gaming the system by waiting a few months and then enacting their retaliatory intent." Id. Plaintiff cites no law or facts to support this conclusion. And while Plaintiff is correct that Ms. Stallings was continuing to follow up on Plaintiff's July 2011 complaint as of October 2011, and was implementing a response by late 2011 or early 2012, Plaintiff has still failed to establish that Defendant's waiting to terminate her was pretextual, given undisputed fact that the decision had not been made until Ms. Ornellas resigned in April 2012.
Plaintiff's arguments here fail. First, temporal proximity must be very close to infer causation, and spans of even three or four months -- without more factual support -- are too long to support such an inference. Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001). Second, the record establishes that there is no triable issue as to why or when Defendant eliminated Plaintiff's position, and Plaintiff's unsupported speculation does not carry her burden here. The Court concludes that Defendant is entitled to summary judgment on Plaintiff's retaliation claim.
D. Wrongful Termination in Violation of Public Policy
Plaintiff asserts that the elements of her wrongful termination claim track those of her arguments for discrimination and retaliation. Opp'n at 22. Plaintiff concludes that because she has established triable issues of fact supporting those claims, she has also established that there are material facts to support her contention that she was terminated in violation of public policy. Id.
Because the Court has found that, on the contrary, there are no triable issues of fact regarding Plaintiff's discrimination or retaliation claims, the Court likewise finds that there are no triable issues of fact regarding Plaintiff's wrongful termination claim. Defendant is entitled to summary judgment on this claim, too.
E. Punitive Damages
Section 3294(a) of the California Civil Code provides that plaintiffs are entitled to punitive damages "where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice." Malice is defined as "conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others." Id. § 3294(c)(1). "'Oppression' means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights." Id. § 3294(c)(2). If a plaintiff seeks punitive damages against a corporate employer, the plaintiff must show that an officer, director, or managing agent is personally guilty of oppression, fraud, or malice; or that an officer, director, or managing agent authorized or ratified fraudulent, malicious, or oppressive conduct or acted with conscious disregard for the plaintiff's rights. Cal. Civ. Code § 3294(b). Summary judgment on the issue of punitive damage is only proper "when no reasonable jury could find the plaintiff's evidence to be clear and convincing proof of malice, fraud, or oppression." Hoch v. Allied-Signal, Inc., 24 Cal. App. 4th 48, 60-61 (Cal. App. Ct. 1994).
As described at length above, Plaintiff has failed to provide evidence supporting her claims, and nowhere in her brief does she cite to any facts supporting a finding of oppression, fraud, or malice -- much less any evidence leaving "no substantial doubt that [Defendant] engaged in despicable conduct, or conduct intended to cause injury." Scott v. Phoenix Sch., Inc., 175 Cal. App. 4th 702, 715 (Cal. Ct. App. 2009). Punitive damages must be supported by evidence of truly vile conduct, not just ill-advised or misguided conduct. Id. Accordingly, Defendant is entitled to summary judgment on this claim.
V. CONCLUSION
As explained above, Plaintiff Catherine Fromson has failed to rebut Defendant Georgia-Pacific Consumer Products LP's motion for summary judgment. The motion is GRANTED.
VI. JUDGMENT
Defendant Georgia-Pacific Consumer Products LP's motion for summary judgment has been granted. Judgment against Plaintiff Catherine Fromson and in favor of Defendant is accordingly ENTERED.
IT IS SO ORDERED.
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UNITED STATES DISTRICT JUDGE