Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura Ct. No. 042760, Thomas J. Hutchins, Judge
William D. Evans for Plaintiff and Appellant.
Sefarth Shaw, LLP, Karen A. Rooney and Catherine A. Evans for Defendants and Respondents.
GILBERT, P.J.
Plaintiff, Mercedes Greene, appeals a summary judgment in favor of defendants, Frank Duda, Anne Babb and Countrywide Home Loans, Inc. (Countrywide), her former employer, in her wrongful termination, sexual harassment, retaliatory discharge and disability discrimination action. We conclude, among other things, that the trial court properly granted summary judgment. Countrywide had a legitimate nondiscriminatory reason to terminate Greene after she made death threats against her coworkers. Greene did not meet her burden to show that her employer's reasons for firing her were false or a pretext for sexual or disability discrimination. Countrywide is not required under the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12940, subd. (a)(1)) to accommodate Greene's mental disabilities and maintain her at the jobsite after she made death threats. Greene did not show that Countrywide subjected her to a hostile work environment or that it retaliated against her for engaging in protected activities. She has not shown that there are triable issues of fact on her causes of action against Countrywide for negligent and intentional infliction of emotional distress. We affirm.
FACTS
Duda was a vice-president in Countrywide's tax department in Simi Valley, California. Greene worked in that office in 2001 and 2002.
In March of 2002 Babb, Countrywide's employee relations representative, notified Duda that Greene had accused him of sexually harassing her by "staring at her." Duda denied that he had ever "purposely" stared at her.
In May of 2002 Countrywide transferred Greene to a new position in its bankruptcy department. That office was located in a separate building and Duda did not work at that office.
In October of 2002 Greene filed a discrimination complaint with the California Department of Fair Employment and Housing (DFEH) alleging, among other things, that 1) Duda subjected her to "visual sexual harassment" from August 1, 2001, to March 19, 2002; 2) Babb "blamed" Greene for "harassing" Duda; and 3) she was "excessively monitored" at Countrywide's bankruptcy department and "denied access to computer programs" available to others. DFEH issued Greene a right-to-sue letter on November 5, 2002.
On May 21, 2003, Duda was driving home after work. He noticed that Greene was following him. She "pulled up" next to his car and said, "Can I talk to you?" Duda said, "No." Greene would not take "No" for an answer and again "motioned" for Duda to "pull over." Fearing that Greene would follow him home, he pulled over. He talked with her, told her, "I need to go," and he left. He reported the incident to Countrywide.
On June 30, 2004, Greene filed a DFEH complaint claiming that Duda and Babb harassed her. She said they retaliated against her because of "discrimination." DFEH issued a right-to-sue letter on July 7, 2004.
Duda moved to Texas in July of 2004. He worked for Countrywide there. In August, he received a package at his home in Texas. It contained three emails and a photograph of Greene and another woman. Duda reported receiving this package to Countrywide and made a complaint against Greene because "two of the emails contained death threats." In the first one, Greene said, "I need to be aggressive and try to destroy the other person involved in this incident." In the second, she stated, "I am so ang[ry] inside and feel like killing a few people here, I can't let that anger take control of who I am, so for the time being I am not going to kill anyone (it's a joke!)"
Greene had flown from California to Texas to mail the package containing the death threats. She did this so that Duda would see that the package had "a local postmark."
Nancy Campbell, Countrywide's president of human resources, suspended Greene pending an investigation of Duda's complaint. Countrywide accessed Greene's "Lotus Notes" and discovered that the emails sent to Duda were in Greene's "Lotus Notes file."
On September 9, 2004, Green told Campbell and Lisa Schroeder, Countrywide's employee relations representative, that she composed the emails which Duda had received. But she said she did not mail the package to Duda. Greene later admitted she had sent the package to Duda. She also said she sent one of the emails containing a death threat to eight Countrywide employees.
Countrywide discovered that Greene had composed additional threatening emails. In one of them she said, "I think that if I leave, I'll feel like I'm being force[d] to leave and that angers me so much, that [I] am afraid [I] will come with a gun and kill them all." Countrywide concluded that Greene violated its workplace violence policy and a rule prohibiting employees from using its email system to send "threatening messages." It terminated Greene.
On January 10, 2005, Greene filed a DFEH complaint alleging that she was fired in retaliation for her complaints about sexual harassment and because of her "mental disability." DFEH issued a right to sue letter on January 14, 2005.
On May 4, 2005, Greene filed an action against Duda, Babb, and Countrywide alleging causes of action for wrongful termination, sexual harassment, disability discrimination, retaliatory discharge and negligent and intentional infliction of emotional distress. Greene claimed that in 2002 there were a series of incidents showing a pattern of harassment against her by Duda and Countrywide. These included, among other things, 1) that someone removed her husband's picture from her desk; 2) a window in her car had been cracked; 3) someone made calls to her home telephone and then hung up; 4) her job in the new department was limited to routine clerical duties; 5) she had limited access to the computers; and 6) her requests for a Countrywide investigation of Duda were ignored.
She alleged that in 2003 the harassment continued because 1) someone called her at work several times, but hung up the telephone before saying anything; 2) someone anonymously delivered a bouquet of flowers to her desk; 3) Duda and another company vice-president walked by her work station in the bankruptcy department; 4) a friend of Duda's who worked in the tax department also walked by that cubicle; 5) Greene saw Duda driving near her home; and 6) she went to a Blockbuster store and Greene was standing behind her. She claimed that in 2004 Joyce Sciumbato, a Countrywide supervisor, told Greene that her work performance was unacceptable and that she could be fired for not complying with company rules.
Motion for Summary Judgment
Countrywide moved for summary judgment. It attached portions of Greene's deposition where she said she had no evidence to show that any Countrywide employees who had made death threats were allowed to keep their jobs.
In her declaration, Campbell said she recommended firing Greene "solely" because of her violation of Countrywide's policy on workplace violence and her improper use of company resources. She said, "Had any employee other than [Greene] sent the same e-mails, I would have made the same recommendation." Prior to terminating Greene, Campbell never instructed anyone to harass Greene, to walk by her cubicle, to alter her working conditions because of her disability or gender or to retaliate because of any complaint Greene had made.
In her declaration, Kelly May, a Countrywide vice-president in the bankruptcy department, said she accepted the recommendation to fire Greene because she had violated the policy against workplace violence. She did not know or believe that Greene had a disability. She did not consider Greene's gender or any complaint Greene had made against Countrywide in deciding to terminate her employment. Nor did she consider those factors in making any other decision related to Greene's employment.
In her declaration, Babb said that she had investigated Greene's complaint about Duda's conduct, but "was unable to substantiate" Greene's allegations. She assisted Greene in transferring to a different department. Greene told Babb that Duda's staring ended in March of 2002. Babb did not "participate . . . in the decision to terminate" Greene. She did not instruct anyone to harass Greene or to change her working conditions because of Greene's disability or because of any complaint she made.
In his declaration, Duda said he never sent Greene flowers, did not make "hang-up" calls to her home or work and did not remove pictures from her desk. He did not harass her. He did not discriminate on the basis of her gender or retaliate because of any complaint she made against him. He said, "I never purposely walked by [Greene's] cubicle or stared at her." He was not involved in the decision to terminate her. He said, "I do not know . . . where [Greene] lives. I never took any steps to find out where she lived. I have never knowingly driven by or in the vicinity of her home."
In her declaration in opposition to summary judgment, Greene said, "Although I had no direct evidence Duda was making the . . . telephone calls or sending me flowers, I felt that he was responsible because I had no indication that others were doing this . . . ." She said Duda began staring at her in May of 2001 when she went to his office to obtain a signature. She said, "[h]e stared at me for several seconds, making me feel uncomfortable." In her opposition to summary judgment Greene conceded, "Duda did nothing Greene could observe except to stare . . . ." Greene claimed that one of the hostile work environment acts involved Duda sending her a Christmas card with a note stating he hoped "all [her] dreams came true."
The trial court entered summary judgment in favor of Countrywide, Duda and Babb on all causes of action.
DISCUSSION
I. Wrongful Termination Based on Sexual Discrimination
Greene contends that she met her burden to prove that she was wrongfully terminated and the trial court erred by granting summary judgment. She claims her evidence showed that she was sexually harassed on the job and Countrywide fired her because she would not condone sexual misconduct by a supervisor. We disagree.
"Because this case comes before us after the trial court granted a motion for summary judgment, we take the facts from the record that was before the trial court when it ruled on that motion." (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.) "'We review the trial court's decision de novo, considering all the evidence set forth in the moving and opposing papers . . . .'" (Ibid.) "We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party." (Ibid.)
We use a three-step process to determine whether the trial court properly granted summary judgment in a discriminatory wrongful termination case. First, we decide whether the employee made "a prima facie case of discrimination." (Morgan v. The Regents of the University of California (2000) 88 Cal.App.4th 52, 68.) If that burden is met "the employer is required to offer a legitimate, nondiscriminatory reason for the adverse employment action." (Ibid.) If the employer meets this burden "the presumption of discrimination created by the prima facie case '""simply drops out of the picture""' [citation] . . . ." (Ibid.) At this stage, "the burden shifts back to the employee to prove intentional discrimination" by showing that the employer's reasons for termination were false or a pretext to hide its discriminatory motive. (Ibid.)
Greene contends that she established that she was sexually harassed at Countrywide because Duda frequently stared at her at work. But to prove this claim she "must show she was subjected to sexual advances, conduct or comments that were severe enough or sufficiently pervasive to alter the conditions of her employment and create a hostile or abusive work environment." (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 283.) Greene contends that the trial court should have inferred that Duda stared at her "to create a 'hostile work environment,' based on sex." But she had to show it was "more likely than" not that this was the case. (Aguilar v. Atlantic Richfield Company (2001) 25 Cal.4th 826, 857.) Many supervisors watch staff to make sure they perform their work. Others may stare with no hostile intent. (Mendoza v. Borden, Inc. (11th Cir. 1999) 195 F.3d 1238, 1245 [the everyday observation of fellow employees in the workplace is a natural and unavoidable occurrence when people work together].)
In his declaration, Duda said he had not engaged in sexual harassment. Greene did not present evidence to show that the staring was accompanied by any words, touching, sexual advances, lewd or sexually suggestive conduct. In her declaration opposing summary judgment she did not state facts to describe Duda's facial expressions, mannerisms or to show how a reasonable person objectively viewing his activity would conclude it constituted sexual harassment. She merely related her subjective impressions and stated: "He stared at me for several seconds, making me feel uncomfortable."
But "contacts consisting merely of staring, leering . . . with no physical touching or threats and no sexual overtones, cannot meet the objective test for detrimental effect, however annoying they may be." (Bishop v. National R.R. Passenger Corp. (E.D. Pa. 1999) 66 F.Supp.2d 650, 664; see also Mendoza v. Borden, Inc., supra, 195 F.3d at p. 1249 [following, staring, "sniffs," an "I'm getting fired up" remark, and a "slight touching" fell short of "actionable hostile environment sexual harassment"].)
Greene claims the federal cases are not dispositive and under FEHA a male employee's staring may become so intense and severe that it may create a sexually hostile work environment. Our decision does not foreclose that possibility. We need not, however, decide that issue here because Greene merely speculates that Duda was motivated to sexually harass her, but speculation is not sufficient. (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 816.) Her subjective belief is not evidence from which a reasonable trier of fact could infer there was conduct severe enough to create an abusive work environment. (Ibid.; Lyle v. Warner Brothers Television Productions, supra, 38 Cal.4th at p. 283; Mendoza v. Borden, Inc., supra, 195 F.3d at pp. 1248-1252.) Yet, even had she proven that Duda had a sexual motive, the result does not change.
Here Countrywide proved it had a legitimate, nondiscriminatory reason to terminate Greene. She made death threats. An employer's termination of an employee for such conduct is not discriminatory. (Macy v. Hopkins County School Board of Education (6th Cir. 2007) 484 F.3d 357, 366; Payton v. Runyon (S.D. Ind. 1977) 990 F.Supp. 622, 628.) Labor Code section 6403, subdivision (c), requires employers to do everything "reasonably necessary to protect the life" and "safety" of its employees. Removing staff who make death threats furthers that goal.
Greene did not show that her employer's reason for terminating her was a pretext. Countrywide had a policy of "zero tolerance" for actual or threatened violence against co-workers. Greene did not show that it selectively applied this policy to her. She admitted that she had no evidence that other employees who engaged in that conduct would be treated differently. Neither Duda nor Babb participated in the decision to terminate Greene. Moreover, Greene admitted in her deposition 1) that Countrywide was justified in interpreting her emails to be serious threats; and 2) that she knew company rules prohibited the conduct she had engaged in.
II. Wrongful Termination Based on Disability Discrimination
Greene contends that she suffered from depression and she produced sufficient evidence to show that Countywide unlawfully terminated her "because of her mental disability." We disagree.
FEHA prohibits employers from discharging employees who are otherwise qualified to perform their jobs because of their physical or mental disabilities. (Gov. Code, § 12940, subd. (a).) Employers must reasonably accommodate their disabled employees. (Gelfo v. Lockeed Martin Corp. (2006) 140 Cal.App.4th 34, 61.) But they may discharge employees with mental disabilities "where the employee, because of his or her . . . disability . . . cannot perform those duties in a manner that would not endanger his or her health or safety or the health or safety of others even with reasonable accommodations." (Gov. Code, § 12940, subd. (a)(1); Sienkiewicz v. County of Santa Cruz (1987) 195 Cal.App.3d 134, 142.)
Countrywide contends that even if Greene's death threats stemmed from a mental disability, they did not have to accommodate it by keeping her on the job. We agree. The statutory protections against discrimination against the disabled do not apply to employees who threaten other workers with violence (Palmer v. Circuit Court of Cook County (7th Cir. 1997) 117 F.3d 351, 352), or pose "a threat of danger to [themselves] or coworkers." (Sienkiewicz v. County of Santa Cruz, supra, 195 Cal.App.3d at p. 142.) They do not require employers to make disability accommodations for potentially dangerous workers. "The retention of such an employee would cause justifiable anxiety to coworkers and supervisors. It would be unreasonable to demand of the employer either that it force its employees to put up with this or that it station guards to prevent the mentally disturbed employee from getting out of hand." (Palmer, at p. 353.)
III. Wrongful Termination Based on Retaliation for a Protected Activity
Greene contends she met her burden to show that she was fired because she engaged in the protected activity of complaining about sexual harassment on the job. We disagree. "'"To establish a prima facie case of retaliation, a plaintiff must show that she engaged in protected activity, that she was thereafter subjected to adverse employment action by her employer, and there was a causal link between the two."'" (Morgan v. The Regents of the University of California, supra,88 Cal.App.4th at p. 69.) The causal link is demonstrated by showing that "' . . . the adverse action followed within a relatively short time . . . '" after the protected activity. (Ibid.)
Here in March of 2002 Greene complained about Duda's conduct and asked for a transfer. In May of 2002 she was transferred to a new position in the bankruptcy department. Duda did not work in that building. Greene was terminated effective January 20, 2005, and her last day of work was September 9, 2004. That was more than two and a half years after she made her complaint about Duda. That long delay between the protected activity and the termination shows that there was no causal link between the two. (Clark County School Dist. v. Breeden (2001) 532 U.S. 268, 274 [adverse employer action taken "20 months later suggests, by itself, no causality at all"].) The termination of her employment was directly connected to Greene's threats, not to her claimed protected activity. Countrywide fired Greene after it discovered her threats.
IV. Pre-Termination Claim For Sexual Harassment During 2001 and 2002
Greene contends that she met her burden to show that she was likely to prevail against Countrywide for sexual harassment and retaliation which occurred between 2001 and 2002. Countrywide responds that she could not prevail because her claims for this period were barred by the running of the statute of limitations. Countrywide is correct.
Greene filed a DFEH complaint in October of 2002 alleging that 1) Duda subjected her to "visual sexual harassment" from August 1, 2001, to March 19, 2002; and 2) she was transferred to an office where she was "excessively monitored." The DFEH issued a right-to-sue letter on November 5, 2002. Greene had one year to file a court action. (Gov. Code, § 12965, subd. (b); Williams v. Pacific Mutual Life Ins. Co. (1986) 186 Cal.App.3d 941, 950.) But she filed her action on May 4, 2005. These claims are time barred. (Williams, at p. 950.)
Green contends there is an exception for continuing employer violations. She claims Countrywide committed acts of harassment in 2003 which are connected to its conduct in 2001 and 2002. But the exception she relies on does not apply here. Under the continuing violations doctrine the employee may rely on employer actions which occurred outside of the statute of limitations if 1) they are similar to the actions which occurred within the limitations period; 2) they "occurred with reasonable frequency"; and 3) they "have not acquired a degree of permanence." (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 823.)
Here Duda's alleged daily visual harassment ended and achieved permanence in 2002. That is when Greene was transferred to another office in a different building than the one where Duda worked. The events Greene mentions in 2003 involve a variety of separate and unconnected incidents. They are substantially different from the type of conduct that she claims Duda engaged in between 2001 and 2002. These isolated events did not occur with reasonable frequency. Greene contends the events of 2002 and 2003 were part of a continuous pattern of harassment by Duda and Countrywide. But Countrywide presented strong evidence showing this was not the case, and that Greene responded with speculation. She thus failed to show a causal link between the events in these two time periods. Moreover, some of the events Greene includes involve acts committed by anonymous persons. Greene admitted she lacked evidence to connect them to Duda or Countrywide. Some involved harmless or neutral conduct, such as sending a Christmas card.
V. Retaliation, Harassment and Hostile Work Environment in 2003
Greene claims that she met her burden to present sufficient evidence to show that Duda and Countrywide had retaliated, harassed her and created a hostile work environment for her in 2003. We disagree.
She lists a series of events which she claims were initiated by Duda to harass her. But she relies on speculation. For example, she claims that in April of 2003 someone sent her a bouquet of flowers at work. But she admits that she does not know who did that. She notes that she received telephone calls at work from "some unknown person who would not speak" and who would "immediately hang up the phone." In his declaration, Duda said he never sent the flowers or made those calls. Greene failed to present evidence to meet her burden to show a connection between Duda and these events.
Greene notes that in May of 2003 Duda and another Countrywide vice-president walked near her work area. In his declaration Duda said: "I never walked by her desk purposely to see her or bother her." He said he walked by that area "on other business on one occasion . . . ." Greene did not meet her burden to present evidence that this was offensive or improper conduct. Nor did she show that there was no business justification for company vice-presidents to walk through the company's offices.
Greene claims that in 2003 she saw Duda driving near her home and driving down the street. She claims he was stalking her and that Countrywide is strictly liable for his actions. But an employer does not have FEHA liability for a supervisor's actions when he or she is off duty, not at the workplace and not acting in the capacity as a supervisor. (State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1041, fn. 3.) Moreover, Greene's claim that Duda was stalking her is based on speculation.
But Countrywide presented competent evidence that Duda was not stalking Greene; it was just the opposite. In the May 21 incident, Greene followed Duda as he was driving home. He pulled over because he was afraid she would follow him home. Several months later, Duda moved to Texas and continued to work for Countrywide there. His home address was confidential. But Greene obtained it, flew to Texas and sent death threats to his home.
Moreover, Countrywide's evidence shows that prior to making the death threats it did not subject Greene to adverse employment action. She was transferred to another office in the company. But that occurred after she complained about Duda. If her claims about him were true, that change was to her benefit. Greene filed charges with DFEH which her employer disputed. But prior to her death threats Countrywide never suspended or demoted her. Greene did not experience a loss in salary, a reduction in benefits or a subordinate job classification. Greene claims her supervisors criticized her work, she filed internal grievances and was not satisfied with Countrywide's response. She claims she was denied access to a computer for a few weeks. But without competent evidence of discrimination and retaliation an employee's dissatisfaction with working conditions does not by itself establish a FEHA violation. (Lyle v. Warner Brothers Television Productions, supra, 38 Cal.4th at p. 283.) Her claims about retaliation are largely based on her speculation about the motivations of supervisors based on their otherwise neutral actions. But her "subjective personal judgments . . . alone do not raise a genuine issue of material fact." (Horn v. Cushman & Wakefield Western, Inc., supra, 72 Cal.App.4th at p. 816.)
VI. Infliction of Emotional Distress
Greene contends that there are triable issues of fact on her causes of action against Countrywide for negligent and intentional infliction of emotional distress. But injuries suffered at work by employees as a result of the employer's negligence normally fall within "the exclusive remedy provisions of the workers' compensation law." (Arendell v. Auto Parts Club, Inc. (1994) 29 Cal.App.4th 1261, 1266.) "'The modern view respecting actionable intentional misconduct by the employer is that it must be alleged and proved that the employer "acted deliberately with the specific intent to injure" the employee.'" (Id., at p. 1265.) To prove intentional infliction of emotional distress the conduct must be "outrageous." (Melorich Builders, Inc. v. Superior Court (1984) 160 Cal.App.3d 931, 936.) To meet this standard, the defendant's actions must be "so extreme in degree as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community." (Ibid.)
Greene's argument on this issue in her opening brief is only one sentence in length. She does not cite to any of the facts in the record. She does not identify a single action or incident by Countrywide which she claims meets the "outrageous" conduct or the "specific intent to injure" standard. She fails to address proximate cause and damages. Consequently, she has waived these issues. (Colt v. Freedom Communications, Inc. (2003) 109 Cal.App.4th 1551, 1560; People v. Dougherty (1982) 138 Cal.App.3d 278, 282-283.)
But even on the merits the result does not change. Greene's cause of action against Countrywide for intentional infliction of emotional distress is primarily based on the claim that it fired her to retaliate for complaining about sexual harassment and discriminated against her because of her disability. But, as already noted, Greene did not meet her burden to overcome Countrywide's evidence which shows it did not engage in harassment or discrimination and it had legitimate reasons for terminating her.
We have reviewed Greene's remaining contentions and conclude they are without merit.
The judgment is affirmed. Costs on appeal are awarded to respondents.
We concur: YEGAN, J., COFFEE, J.