Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04AS05111
ROBIE, J.
Plaintiff Laura-Lee Imrie sued her employer, defendant General Motors Acceptance Corporation (GMAC), for gender discrimination and breach of an implied contract not to terminate her without good cause. The trial court granted summary judgment in favor of GMAC and entered judgment against Imrie.
We have omitted reference to Imrie’s other causes of action that were also disposed of by summary judgment because she does not challenge them on appeal.
Imrie appeals from the judgment, contending the trial court erred in granting summary judgment because she created triable issues of fact on her causes of action for gender discrimination and breach of an implied contract. Finding a triable issue of fact as to Imrie’s gender discrimination claim only, we hold that GMAC was not entitled to summary judgment. We will therefore reverse the judgment and direct the trial court to enter a new order denying summary judgment, but granting summary adjudication in favor of GMAC on all causes of action except the first cause of action (gender discrimination).
FACTUAL AND PROCEDURAL BACKGROUND
On review of a summary judgment in the defendant’s favor, we independently examine the record to determine whether triable issues of material fact exist. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767.) In performing this de novo review, we must “view the evidence in a light favorable to plaintiff as the losing party [citation], liberally construing her evidentiary submission while strictly scrutinizing defendants’ own showing, and resolving any evidentiary doubts or ambiguities in plaintiff’s favor.” (Id. at p.768.) Employing these standards, the following facts appear from the record:
In June 1978, Imrie began working for GMAC in its Sacramento accounting department. GMAC is a financial institution that provides car loans, leases, and other financial services primarily to General Motors’s car dealerships.
For the next 20 years, Imrie received reviews ranging from “Highly Effective” to “Superior” and was continuously promoted.
In October 1998, Imrie became one of only two area service financial managers in GMAC’s Sacramento office. This job was a sales position that was “coveted and prestigious” and was considered a “career growth move” involving exposure to GMAC’s parent company. One of Imrie’s new responsibilities included scheduling and administering an annual trip to Las Vegas for a large group of dealership contest winners, which was referred to as the NASCAR event. Imrie shared responsibility of administering the event with her colleague Clark Zaft.
In her new position as an area service financial manager, Imrie’s supervisor was Mark Juday. Juday’s supervisor was Kevin Wrate. From the beginning of his arrival at the Sacramento office, Wrate treated Imrie differently than he treated the male employees. At meetings in which Imrie was the only woman, Wrate would fail to acknowledge her and discount or ignore her recommendations and suggestions. He was friendly and jovial with men, but never with her. He would engage Zaft in conversation while ignoring her.
On October 30, 2003, Juday asked Imrie to meet with him and Wrate the next day. She was not told the purpose of the meeting.
On October 31, 2003, Imrie met with Wrate and Juday for about 20 minutes. Wrate told her that she was being investigated for violating company policies. These violations included: (1) accepting a free meal from a car dealer named Tom Weaver; (2) charging GMAC for her daughter’s meals at the NASCAR event; (3) giving a dealership manager named Paul Choonhaurai a hotel room at the NASCAR event at GMAC’s expense; (4) supplying another area financial service manager named Spencer Carter with airline tickets to Las Vegas and reserving a hotel room for him; and (5) charging GMAC for her overnight accommodations during a one-day business trip to San Ramon in October 2003. Imrie tried to explain each of these violations, but Wrate constantly interrupted her and said she was lying. At the end of the meeting, Imrie was put on leave with full pay and told by Wrate that “‘at a minimum, her career in sales was over.’”
According to one of the human resource managers for GMAC, Andrew Jacobson, Wrate’s decision to terminate Imrie from sales was the “final word,” at least as to her sales position, although approval to “separate her” from GMAC would require approval of the chairman or president. Imrie was going to “undergo[] a position change at the least” that “would have had more oversight,” possibly to a position that she had handled in the past or possibly to a different lateral position. She was not going to be considered for a position of greater responsibility or for a promotion.
On November 6, 2003, Imrie sent an e-mail to Jacobson regarding her “‘leave with pay’ status from GMAC.” She said Wrate had treated her unfairly and there had been a misapplication of GMAC’s personnel policies and procedures. On November 7, 2003, Jacobson left a voice mail message for Imrie. On November 10, 2003, Imrie spoke to Jacobson by telephone and told him her side of the story that she believed she has been subjected to disparate treatment because she was a woman. Jacobson asked her to put down her concerns in writing, which she did in a letter written the next day. Jacobson sent the November 11, 2003, letter to Juday and Wrate with a request that they respond to Imrie’s concerns.
On November 24, 2003, Imrie wrote to Jacobson and told him she had not heard anything from GMAC for approximately two and one-half weeks regarding her concerns about disparate treatment. Imrie noted that dealers were still contacting her and she was not responding, which she believed was damaging her reputation. On December 1, 2003, while Imrie was still on paid leave from GMAC, she accepted a job with another company. On December 2, 2003, Imrie resigned from GMAC.
DISCUSSION
I
There Are Triable Issues Of Fact Regarding Whether Imrie Suffered Gender Discrimination
Imrie contends the trial court erred in granting summary adjudication on her gender discrimination cause of action because there were triable issues of fact regarding whether she suffered an adverse employment action and whether there were circumstances suggesting a discriminatory motive. We agree.
Imrie’s cause of action for gender discrimination alleged acts of discrimination beginning from the year 2001 continuing through the time she claims she was constructively discharged. Because the pleadings frame the issue on summary judgment (Leibert v. Transworld Systems, Inc. (1995) 32 Cal.App.4th 1693, 1699), we do not limit the cause of action for discrimination to simply constructive discharge, although at times her opening brief can be read to limit her argument regarding discrimination to just the allegation of constructive discharge.
Government Code section 12940, subdivision (a), prohibits an employer from discriminating against a person “in compensation or in terms, conditions or privileges of employment” because of that person’s sex. To establish a prima facie case of gender discrimination under Government Code section 12940, “the plaintiff must provide evidence that (1) [s]he was a member of a protected class, (2) [s]he was . . . performing competently in the position [s]he held, (3) [s]he suffered an adverse employment action . . . and (4) some other circumstance suggests discriminatory motive.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355 [age discrimination claim]; accord, Jones v. Department of Corrections (2007) 152 Cal.App.4th 1367, 1379 [race and gender discrimination].) If the plaintiff establishes a prima facie case, a presumption of discrimination arises. (Guz, at p. 355.)
To overcome the presumption, the defendant must produce admissible evidence of legitimate reasons for the adverse employment action. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 356.) The “employer satisfies its burden as moving party if it presents evidence of such nondiscriminatory reasons that would permit a trier of fact to find, more likely than not, that they were the basis for the [adverse employment action].” (Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th 1088, 1097-1098.)
If the defendant succeeds in overcoming this presumption, the defendant is entitled to summary judgment unless the employee claiming discrimination “‘offer[s] substantial evidence that the employer’s stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination.’” (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 806-807.)
Here, the parties dispute whether Imrie provided sufficient evidence at this stage on elements Nos. 3 (an adverse employment action) and 4 (circumstances suggesting a discriminatory motive) of her gender discrimination cause of action.
Imrie contends that the adverse employment action to which she was subjected consisted of, among other things, her permanent removal from her sales position based on false pretenses, the threat that this was the minimum discipline that would be imposed, her placement on indefinite paid leave, and her stigmatization as a “‘liar and a violator of company ethics.’” GMAC responds that these factors as a matter of law were not sufficient to establish an adverse employment action.
To be actionable, an adverse employment action “must materially affect the terms and conditions of employment.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1051, fn. 9.) While this may include more than just “‘ultimate’ employment acts, such as a specific hiring, firing, demotion, or failure to promote decision,” it nevertheless requires “a substantial adverse change in the terms and conditions of the plaintiff’s employment.” (Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1455; see Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 420.) “A transfer can be an adverse employment action when it results in substantial and tangible harm. A transfer is not an adverse employment action when it is into a comparable position that does not result in substantial and tangible harm.” (McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 393.)
Here, GMAC argues that Imrie’s removal from sales, her placement on paid administrative leave, and her transfer out of sales to a new (yet undetermined) position in which she was to receive the same pay and benefits was not an actionable demotion because it was simply a “‘lateral transfer.’” We disagree. Imrie presented evidence that her sales position was “coveted and prestigious” and was a “career growth move” involving exposure to GMAC’s parent company. By the time Imrie was placed on administrative leave, human resource manager Andrew Jacobson believed that Imrie was “definitely” “finished with sales” and that she was going to undergo a position change “at the least” that “would have had more oversight,” possibly to a position that she had handled in the past or possibly to a lateral position she had never held. She was not going to be considered for a position of greater responsibility or for a promotion. This evidence was sufficient to create a triable issue of material fact as to whether Imrie suffered an adverse employment action with respect to her gender discrimination claim.
We next consider whether Imrie produced some evidence of “some other circumstance suggest[ing] discriminatory motive.” (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 355.) Imrie presented evidence that from the beginning of their relationship until the time she was placed on administrative leave, Wrate treated her differently than male employees. For example, at meetings in which she was the only woman, Wrate would fail to acknowledge her and discount or ignore her recommendations and suggestions. Wrate treated men in a “comradely manner, was friendly and even jovial with men in [Imrie’s] presence, while he never similarly engaged [her].” GMAC discounts this evidence, contending that parts of Imrie’s testimony are “dispositive” on this issue, pointing to her statements that she did not know why Wrate did not like her and whether he distrusted her. GMAC’s evidence simply points out that there might be a conflict in the evidence as to why Wrate did not like Imrie and whether he treated women differently than men. It does not mean that Imrie failed to produce some evidence of discriminatory motive.
We next consider whether GMAC produced admissible evidence of legitimate reasons for the adverse employment action, which dispelled the presumption of discrimination. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 356.) The “employer satisfies its burden as moving party if it presents evidence of such nondiscriminatory reasons that would permit a trier of fact to find, more likely than not, that they were the basis for the [adverse employment action].” (Kelly v. Stamps.com Inc., supra, 135 Cal.App.4th at pp. 1097-1098.) GMAC presented evidence that Wrate based his decision to remove Imrie from her sales position and then placed her on paid administrative leave on what he believed were five violations of company policy. These were: (1) accepting a free meal from dealer Weaver; (2) charging GMAC for her daughter’s meals at the NASCAR event; (3) giving Choonhaurai a hotel room at the NASCAR event at GMAC’s expense; (4) supplying Carter with airline tickets to Las Vegas for the NASCAR event and reserving a hotel room for him; and (5) charging GMAC for overnight accommodations for a one-day business trip Imrie made to San Ramon in October 2003. This evidence satisfied GMAC’s burden to justify the adverse employment action taken against Imrie on a basis other than gender.
We finally consider whether Imrie “‘offer[ed] substantial evidence that the employer’s stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination.’” (Horn v. Cushman & Wakefield Western, Inc., supra, 72 Cal.App.4th at pp. 806-807.)
Here, Imrie offered the following evidence that GMAC’s reasons for terminating Imrie from her sales position were untrue or pretextual:
With regard to the dinner for which Weaver paid, while Imrie admitted to Wrate that Weaver paid for the dinner, Wrate did not ask why she accepted the free meal. Wrate prevented her from explaining that Weaver had insisted on paying the bill, she knew this was against GMAC’s policy, but she also knew there were exceptions to the policy, such as paying for Weaver’s meal in the future, which she intended to do.
With regard to Imrie charging the company for her daughter’s meals at the NASCAR event, at the October 31 meeting, Imrie told Wrate that Juday had approved of this. Both before the meeting and after the meeting but before Wrate made a decision to terminate Imrie from sales, Juday told Wrate that he had given Imrie permission to bring her daughter and in the past he had allowed her daughter to participate in GMAC group meals and group events. Nevertheless, the report from that meeting stated that when Imrie was asked whether she expected GMAC to pay for her daughter’s expenses, she had no answer.
With regard to Imrie giving Choonhaurai a hotel room at the NASCAR event at GMAC’s expense, Choonhaurai explained that Imrie initially had told him that he could stay in one of the rooms GMAC had rented and that he might have to pay GMAC back. When they got to Las Vegas, Imrie told Choonhaurai that some people from the GMAC group were not using the rooms, so he might as well stay free of charge in one of the rooms for which GMAC had already paid. Juday, who was Choonhaurai’s good friend, agreed that Choonhaurai should stay in one of the GMAC hotel rooms for free because “‘a bunch of people didn’t show up [for the event]. . . [a]nd ‘[t]hey’re going to waste anyway.’”
As to supplying Carter with airline tickets to Las Vegas and reserving a hotel room for him, Imrie presented evidence that Wrate had, among other things, omitted other facts in order to support his claim of Imrie’s wrongdoing. For example, Juday had told her to assume that Carter and other area financial service managers would be going to Las Vegas and to put them on the list of attendees. In response, on October 13, Imrie prepared about 60 attendee packets, one of which she mailed to Carter the next day. On October 16, Juday told Imrie that the only area financial service managers allowed to attend were Imrie and Zaft. Carter, who had been on vacation, received the packet when he returned home. On October 21 when Imrie flew to Las Vegas, she received a voice message from Carter saying he would see her in Las Vegas. She called him back and told him that there had been a change and that he should talk with his manager. Carter took this to mean that he perhaps was not going to Las Vegas. He then spoke to his manager who confirmed that Carter was not going. Zaft, Carter, and Choonhaurai all denied that Imrie had tried to talk Carter into coming to Las Vegas. Wrate never asked Zaft about Imrie’s calls to Carter.
As to charging GMAC for overnight accommodations for a one-day business trip Imrie took to San Ramon in October 2003, Imrie explained that San Ramon was two and one-half hours from her house, and she would have had to wake up by 4:30 a.m. to make it to the meeting on time. Imrie submitted the bill for the hotel room and breakfast totaling $172.83 along with an e-mail explaining the reason for the overnight stay to Juday, who approved the expenses. On a number of occasions, Imrie had spent the night at a hotel before out-of-town meetings without prior approval of her manager.
Taken together, this evidence offered by Imrie explaining her actions, some of which GMAC (through its employees) arguably knew about, could lead a reasonable fact finder to find that Wrate’s reasons for terminating Imrie from sales were “‘unworthy of credence,’” and therefore to infer that GMAC did not act for the asserted nondiscriminatory reasons. (Horn v. Cushman & Wakefield Western, supra, 72 Cal.App.4th at p. 807.)
Imrie therefore provided triable issues of fact to survive summary adjudication for her claim of gender discrimination.
II
There Is No Triable Issue Of Fact Regarding Whether GMAC Breached An Implied Contract Not To Terminate Imrie Without Good Cause Because She Was Not Constructively Discharged
Imrie contends there are triable issues of fact regarding whether GMAC breached an implied contract not to terminate her without good cause. According to Imrie, she produced evidence to overcome the presumption that her contract was for at-will employment and she created a triable issue of fact as to whether she was constructively discharged. Imrie’s contention fails because GMAC did not constructively discharge her.
To prove a constructive discharge, the evidence must show “the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee’s resignation that a reasonable employer would realize that a reasonable person in the employee’s position would be compelled to resign.” (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1251.) This test is objective, focusing on whether the resignation was coerced, not whether it was simply one rational option for the employee. (Id. at pp. 1246, 1248.)
Here, Imrie contends she presented evidence sufficient to create a triable issue of fact that she was constructively discharged because GMAC created conditions such that she had no reasonable alternative but to resign. In support of her contention, she notes that Wrate “subjected [her] to a demeaning and humiliating harangue,” removed her from her prestigious sales position, and told her that it was the minimum discipline that was to be imposed. This evidence is insufficient as a matter of law to rise to the level of constructive discharge. “While [such] conduct may not be ‘ordinarily . . . encouraged,’ employers have the right to unfairly and harshly criticize their employees, to embarrass them in front of other employees, and to threaten to terminate or demote the employee. [Citations.]” (Thompson v. Tracor Flight Systems, Inc. (2001) 86 Cal.App.4th 1156, 1171.)
Imrie goes on to point out that when she was placed on paid leave, her complaints to the human resource department went unanswered, and she believed she would be terminated. What Imrie believed, however, is irrelevant. (See Turner v. Anheuser-Busch, Inc., supra, 7 Cal.4th at p. 1248.) Objectively, Imrie was placed on leave with the same pay and benefits as in her sales position, the final decision about her status as a GMAC employee had yet to be determined, and human resource manager Jacobson was aware of her complaint of disparate treatment. When Imrie decided to resign from GMAC, it had been only four weeks since she had been placed on administrative leave and only two weeks since she had last spoken to Jacobson about her complaint. By the time of Imrie’s resignation, Jacobson had taken at least some action on her complaint, i.e., sending Imrie’s November 11 letter regarding disparate treatment to Wrate and Juday with a request that they respond. What the outcome of the investigation would have been is uncertain, as Imrie decided to resign and accept a job at another company. And while resignation was among the rational options for Imrie to take to ensure she would not be disciplined or demoted further, there was nothing coerced about it. (Turner v. Anheuser-Busch, Inc., supra, 7 Cal.4th at p. 1246.) On this record, Imrie did not create a triable issue of fact on her cause of action for breach of an implied contract not to terminate her without good cause because she was not constructively discharged.
DISPOSITION
The judgment is reversed. The trial court is directed to vacate its order granting summary judgment and enter a new order denying the motion for summary judgment but granting summary adjudication in favor of GMAC on all causes of action except the first cause of action (gender discrimination). The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
We concur: MORRISON, Acting P.J., CANTIL-SAKAUYE, J.