Opinion
A115518.
2-17-2009
JEANNE MILLECAM, Plaintiff and Appellant, v. CHEVRONTEXACO CORPORATION et al., Defendants and Respondents.
Not to be Published in Official Reports
Chevron Products Company (Chevron) terminated Jeanne Millecam from her position as a contract analyst at Chevrons Richmond refinery as part of a reorganization and workforce reduction. Millecam appeals from a summary judgment entered on her claims of disability discrimination under the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12940 et seq.), retaliation for taking medical leave under the California Family Rights Act (CFRA) (§ 12945.2), intentional infliction of emotional distress, termination in violation of public policy, and unlawful business practices (Bus. & Prof. Code, § 17200). She contends the trial court erred in disregarding the existence of triable issues of material fact. She further contends the trial court abused its discretion in denying her request for a further continuance of the summary judgment hearing pursuant to Code of Civil Procedure section 437c, subdivision (h). We affirm the judgment.
All further statutory references are to the Government Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
Chevron hired Millecam as a mail clerk in 1984. Following several promotions and lateral moves, Chevron promoted Millecam to the position of associate buyer in 1994, a position she held until August 2000. In August 2000, Millecam transferred to the position of contract analyst in the Procurement Department of Chevrons refinery in Richmond, California. She held the position of contract analyst until she was laid off in the summer of 2004.
At the beginning of each year, employees at Chevrons Richmond refinery were required to participate in a review process to assess their individual work performance for the previous year. The review process resulted in the preparation of a written performance review, referred to as a "PMP," in which an employees supervisor would note the employees strengths as well as areas for improvement. In addition, each employee would receive a "cluster ranking" of 1, 2, or 3 based on his or her performance relative to other refinery employees at the same pay grade. In general, a cluster ranking of 1 signified "exceptional performance," 2 indicated that the employee "fully meets performance expectations," and 3 denoted the employee "falls short of performance expectations."
Lynn Robinson was Millecams immediate supervisor in 2000, when she began working as a contract analyst. In Millecams PMP covering the period of August through December 2000, Robinson noted that Millecam was new to his group but that she had "learned much in a very short time and is ready to take on more." He wrote that he had "large expectations for [Millecam] in the up coming [sic] year and feel[s] that she is up to the task." She received a cluster ranking of 2 for the 2000 review period, indicating she was fully meeting performance expectations.
In Millecams PMP for 2001, Robinson noted that she was "picking up contract policy and procedures, but more knowledge [wa]s needed." He also wrote that Millecam "need[ed] to improve on follow through with customers" and that "[v]arious Contractors have voiced concern over [Millecam] not getting back to them." Robinson reported that Millecam had "4 sick time incidents in 2001" and that she "need[ed] to improve on her time away from work." He further noted that Millecam had "expressed concern over the amount of contracts she is responsible for and how she received those contracts," although she had failed to tell Robinson which contracts caused her concern, despite his request. In the "Employee Comments" section of the PMP, Millecam wrote she was "disappointed with my PMP[;] it doesnt reflect things I have achieved or give me credit for things [sic] Ive done well." Millecam again received a cluster ranking of 2.
For the 2002 review period, Robinson wrote in Millecams PMP that "[h]er background in [purchasing] has been a[n] asset to us in Contracts administration." Robinson also wrote that Millecam was responsible for many of the low risk contracts as well as some of the high[] risk contracts, but he observed that she "need[ed] to develop her Time Management skills to help her in daily work assignments" and gave examples of time management: "timely responses to customers, contract extensions completed before due dates are near, [and] completing and submitting PMP documents before due dates." Millecam received a cluster ranking of 1 for the 2002 review period, indicating exceptional performance. For that same review period, the majority of the other contract analysts supervised by Robinson received cluster rankings of 2.
From July 23, 2003, until September 18, 2003, Millecam took a leave of absence from work pursuant to the CFRA due to major depression. An e-mail informed Robinson of Millecams leave, although it did not explain why she was on leave, other than to reflect that a request for protection under the "FMLA [Family Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq.] or related state law" was pending. The e-mail also reflected that Millecams application for short-term disability benefits had been denied for failure to provide medical support. Aside from the reference in the e-mail to a rejected application for disability benefits, the e-mail contained no indication of the reason for Millecams CFRA leave.
Millecam claims she faced hostility from Robinson upon her return from her CFRA leave. She felt he was treating her differently and acting as though she was no longer his employee. However, she also testified she was being excluded from meetings by Robinson before she began her leave, starting at the beginning of 2003. In addition, during her deposition she testified about a number of coworkers with whom she apparently did not get along, accusing them of being "hostile" towards her. Before July 2003—and the start of her CFRA leave—Robinson told her she could no longer attend safety meetings because she "attended too many meetings."
In January 2004, Millecam met with her manager, Ramiro Cantu, and her immediate supervisor, Robinson, to discuss her performance review for 2003. According to Millecam, Cantu told her she was doing a good job. When Cantu left the meeting, Robinson proceeded to criticize Millecams performance, focusing primarily on what he perceived as her inability to keep up with her work. According to Millecam, Robinson said her work performance had suffered because she was "out too much" on "medical leave." Robinson also told Millecam she was emotional. Millecam admitted she had "probably cried" on occasion because of "hurtful things." In her PMP for 2003, Robinson wrote that Millecam had "not been able to manage many of her assignments in a timely fashion." He also noted that "[s]he need[ed] to focus on her work and filter out distractions that keep her from completing work tasks."
On January 17, 2004, Deane Van Bockern replaced Robinson as Millecams supervisor. Soon thereafter, Robinson met with Van Bockern to discuss the performance of the contract analysts formerly under Robinsons supervision. At that meeting, Robinson told Van Bockern that Millecam needed to improve her time management skills and that she was not keeping up with the workload. Robinson also told him she was "tak[ing] more time off" and "los[ing] focus" as time went on. Robinson reported that Millecam was given a cluster ranking of 3 for 2003, reflecting that her work fell short of performance expectations.
Millecam took a second CFRA leave from February 6, 2004, until March 16, 2004. An e-mail dated February 18, 2004, notified Van Bockern of an "Initial Notice of Disability and/or FMLA Request" with respect to Millecam. An e-mail dated February 25, 2004, informed Van Bockern that the company had "received medical certification" for Millecams leave, which was set to expire on March 4, 2004. In a responsive e-mail, Van Bockern asked the employee who had informed him of the medical certification, "Is this the kind of case that could get extended beyond 3/4?" The e-mail exchange gave no indication of the nature of Millecams medical condition.
Following her return from her second CFRA leave, Millecam met with Van Bockern to discuss her 2003 PMP. Van Bockern informed Millecam for the first time she had received a cluster ranking of 3 for 2003. As a consequence of this ranking, Millecam was not awarded a salary increase. In the employee comments section of the PMP, Millecam expressed disappointment with the review and stated, "I feel that I am being retaliated against because of time that I have taken on disability in 2003 and 2004."
On April 27, 2004, Millecam sent an e-mail to Kris Lazaro in the human resources department stating that she and another contract analyst, whom we shall refer to as "contract analyst 2," wanted to meet with Lazaro because they were concerned about their cluster rankings. Lazaro responded that any concerns about the rankings had to go through the "STEPS process" used by Chevron for addressing employee complaints. Millecam wrote a lengthy complaint, to which Robinson and Van Bockern responded in writing. Following further discussions among the parties, a human resources representative prepared a summary of four "action items" to address Millecams concerns.
Contract analyst 2 took a medical leave from April 2003 to March 2004 and, like Millecam, was given a cluster ranking of 3 for the 2003 review period. Because our discussion of contract analyst 2s medical leave and performance ranking implicates privacy and confidentiality concerns, we avoid using the employees name.
As a further part of the performance review process, on May 18, 2004, Millecam was placed on a "Performance Improvement Plan" (PIP) prepared by Van Bockern. The PIP noted areas requiring improvement and listed specific examples, such as Millecam letting a particular contract expire in 2003 without renewing it. The PIP also noted missed deadlines, missing contract binders, failure to follow procedures regarding a contract renewal form, failure to consistently enter "exception time" (i.e., excused absences) for payroll purposes, and inconsistency in updating the database containing contractor information. Millecam rejected these criticisms, dismissing them as a "bunch [of] crap that wasnt true." An "action plan" listed five areas requiring improvement: meeting "all deadlines for all assigned work," making sure "all contract binders for assigned contracts [were] available," following all procedures, entering all exception time into payroll, and updating the database to ensure all fields for assigned contracts were up-to-date and accurate.
In late 2003 and early 2004, Chevron initiated a broad-based reorganization initiative to increase efficiency and decrease operating costs at its North American refineries. As part of the process, Chevron reorganized its downstream procurement organization and determined that the number of contract analysts could effectively be reduced. Before the reorganization, contract analysts in the Procurement Department negotiated contracts, followed up on contract renewals, and wrote and rewrote vendor contracts. A special study team compared Chevrons refineries to the competition and determined the number of local category specialist positions—the nearest work equivalent to the contract analyst position after the reorganization—that should exist in the downstream procurement organization.
Within the Richmond refinery procurement department, the reorganization process consisted of eliminating four of the seven contract analyst positions reporting to Van Bockern, who was charged with evaluating and ranking the contract analysts he supervised based on seven selection criteria. This selection process was referred to as a "ROM," or "Resource Optimization Management." The seven selection criteria were: (1) technical skills; (2) planning and organizational skills; (3) interpersonal skills; (4) ability to change and work within the new business model; (5) adherence to Chevron values; (6) treating individuals with dignity and respect; and (7) operational excellence, focus, and safety behaviors.
Tim Hennessey, Chevrons North American Refining Category Manager at the time, sent an e-mail to Van Bockern and other supervisors on April 30, 2004, requesting that they fill out a spreadsheet ranking the contract analysts under their supervision in the seven categories of selection criteria. Relying in part on information Robinson had provided to him, Van Bockern ranked the seven contract analysts that reported to him, giving Millecam and contract analyst 2 the lowest rankings. Hennessey made the selection decisions on the basis of information he received from Robinson and Van Bockern. The consensus during the ROM was that Millecam was the second lowest performing contract analyst, based on the seven criteria assessed.
On June 2, 2004, Chevron notified Millecam she was being laid off. Contract analyst 2 was also laid off as part of the reorganization. Millecam understood that the reasons for the companys reorganization of the procurement department in 2004 were "[t]o save money, for better processes, [and to] put the people in the right places with the right skills." She understood from her years of employment at Chevron that if there were a layoff or a reorganization, her employment could be terminated.
Millecam filed a complaint against Chevron, Robinson, and Van Bockern on May 20, 2005, alleging causes of action for (1) disability discrimination under the FEHA (§ 12940 et seq.); (2) retaliation for taking CFRA leave (§ 12945.2); (3) wrongful termination in violation of public policy; (4) unfair business practices (Bus. & Prof. Code, § 17200); and (5) intentional infliction of emotional distress.
Chevron was erroneously sued as ChevronTexaco Corporation.
For ease of reference, we shall refer to the defendants collectively as Chevron, except where necessary to distinguish between the corporate and individual defendants.
Chevron moved for summary judgment, arguing among other things there was no evidence Millecam was disabled and that there was no causal connection between her CFRA leave and/or asserted disability and her termination. Chevron also urged that they had established a legitimate, nondiscriminatory reason for Millecams layoff and that she had offered no evidence the proffered reason was pretextual. Further, Chevron contended that Millecams emotional distress cause of action was preempted by the exclusivity provisions of the workers compensation law and that, in any event, she had not identified conduct that would be considered "outrageous."
The trial court granted Chevrons motion for summary judgment in its entirety. The court held that Millecam had failed to establish of prima facie case of disability discrimination or retaliation for taking CFRA leave. The court further held that even if Millecams evidence were sufficient to establish a prima facie case of discrimination or retaliation, Chevron had provided a sufficient, nondiscriminatory reason for the adverse employment action. According to the court, Millecam had "failed to present specific and significantly probative evidence that [Chevrons] decision to eliminate her position was not [sic] pretextual." Millecam timely appealed from the September 15, 2006, judgment in Chevrons favor.
DISCUSSION
1. Standard of Review
"On appeal after a motion for summary judgment has been granted, we review the record de novo, considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained. [Citation.] Under Californias traditional rules, we determine with respect to each cause of action whether the defendant seeking summary judgment has conclusively negated a necessary element of the plaintiffs case, or has demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial, such that the defendant is entitled to judgment as a matter of law. [Citations.]" (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 (Guz).)
When a summary judgment motion establishes a prima facie case for judgment in the moving partys favor, the last step in the analysis is to determine whether the opposing party has demonstrated the existence of a triable, material factual issue. (Zimmerman, Rosenfeld, Gersh & Leeds LLP v. Larson (2005) 131 Cal.App.4th 1466, 1476.) "[W]e strictly construe the evidence of the moving parties and liberally construe that of the opponents, and any doubts as to the propriety of granting the motion should be resolved in favor of the parties opposing the motion. [Citation.]" (Kelly v. First Astri Corp. (1999) 72 Cal.App.4th 462, 471.) However, a triable, material factual issue cannot be created by "`speculation, conjecture, imagination or guesswork. [Citation.]" (Sinai Memorial Chapel v. Dudler (1991) 231 Cal.App.3d 190, 196.) Likewise, a triable issue cannot be raised by "`cryptic, broadly phrased, and conclusory assertions [citation] . . . ." (Ibid.) Mere possibilities are not enough. (Ibid.)
2. Retaliation for Taking CFRA Leave
A. Elements of the Cause of Action
In her second cause of action, Millecam alleges Chevron terminated her in retaliation for exercising her rights under the CFRA. The CFRA provides in relevant part that "[i]t shall be an unlawful employment practice for an employer to . . . discharge . . . or discriminate against, any individual because of . . . [¶] (1) An individuals exercise of the right to family care and medical leave provided by" the CFRA. (§ 12945.2, subd. (l); see also Cal. Code Regs., tit. 2, § 7297.7.) A plaintiff can establish a prima facie case of retaliation in violation of the CFRA by showing the following: (1) the defendant was a covered employer; (2) the plaintiff was eligible for CFRA leave; (3) the plaintiff exercised his or her right to take a qualifying leave; and (4) the plaintiff suffered an adverse employment action because he or she exercised the right to take CFRA leave. (Dudley v. Department of Transportation (2001) 90 Cal.App.4th 255, 261.)
Here, there is no dispute that Chevron was subject to the CFRA, that Millecam was eligible for CFRA leave, and that she exercised her right to take a period of leave for a qualifying CFRA purpose. The parties disagreement is over the issue of causation—i.e., whether Millecam suffered an adverse employment action because she exercised her rights under the CFRA. In order to assess the parties competing claims, we first address general principles governing summary judgment on claims of employment discrimination.
B. Summary Judgment Burdens on Cause of Action for Employment Discrimination
"Disparate treatment," the form of alleged discrimination at issue here, "is intentional discrimination against one or more persons on prohibited grounds. [Citations.]" (Guz, supra, 24 Cal.4th at p. 354, fn. 20.) In a disparate treatment case, the plaintiff must show that intentional discrimination was the determinative factor in the adverse employment action. (See Hazen Paper Co. v. Biggins (1993) 507 U.S. 604, 610.) There are two ways of proving intentional discrimination—direct evidence, and indirect or circumstantial evidence. (Guz, supra, 24 Cal.4th at p. 354.)
"Prohibited discrimination may also be found on a theory of `disparate impact, i.e., that regardless of the motive, a facially neutral employer practice or policy, bearing no manifest relationship to job requirements, in fact had a disproportionate adverse effect on members of the protected class. [Citations.]" (Guz, supra, 24 Cal.4th at p. 354, fn. 20.) Millecam does not allege disparate impact discrimination.
Direct evidence is evidence that proves the fact of discriminatory animus without inference or presumption. (Godwin v. Hunt Wesson, Inc. (9th Cir. 1998) 150 F.3d 1217, 1221.) Direct evidence may consist of "`statements by a decisionmaker that directly reflect the alleged animus and bear squarely on the contest employment decision, [citation] . . . ." (Patten v. Wal-Mart Stores East, Inc. (1st Cir. 2002) 300 F.3d 21, 25.) In most cases, there is no direct evidence of intentional discrimination by the employer, and discrimination claims must be proved indirectly with circumstantial evidence. (Guz, supra, 24 Cal.4th at p. 354.) In such cases, California courts have adopted a "three-stage burden-shifting test established by the United States Supreme Court for trying claims of discrimination . . . based on a theory of disparate treatment. [Citations.]" (Id. at p. 354.) Under the three-part test established in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802-805, (1) the employee must set forth sufficient evidence to establish a prima facie case of discrimination; (2) the employer must then articulate a legitimate, nondiscriminatory reason for the adverse employment action; and (3) the employee then has the burden to show the employers articulated reason is pretextual. (Guz, supra, 24 Cal.4th at pp. 354-356.)
"Because of the similarity between state and federal employment discrimination laws, California courts look to pertinent federal precedent when applying our own statutes. [Citation.]" (Guz, supra, 24 Cal.4th at p. 354.)
Thus, an employer seeking summary judgment in a discrimination case meets its initial burden by showing that one or more of these prima facie elements is lacking, or that legitimate, nondiscriminatory reasons existed for the adverse employment action. "`[L]egitimate reasons [citation] in this context are reasons that are facially unrelated to prohibited bias, and which, if true, would thus preclude a finding of discrimination. [Citations.]" (Guz, supra, 24 Cal.4th at p. 358.) Following such a showing by the employer, the burden shifts to the employee to demonstrate that the reasons for termination are a pretext and that the employer acted with a discriminatory motive. (Id. at pp. 354-356.) To do so, the employee must present " `"substantial responsive evidence" that the employers showing was untrue or pretextual. [Citation] [Citations.]" (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 807.) The employee "`"must do more than establish a prima facie case and deny the credibility of the [employers] witnesses." [Citation.] [The employee] must produce "specific, substantial evidence of pretext." [Citation.] [Citation.]" (Ibid., italics added.)
"Pretext may be inferred from the timing of the discharge decision, the identity of the decisionmaker, or by the discharged employees job performance before termination. [Citation.]" (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 224.) An employee may raise a triable issue of fact regarding pretext by presenting evidence of implausibilities, inconsistencies, or contradictions in an employers proffered reason, or with direct evidence of a discriminatory motive. (Guz, supra, 24 Cal.4th at pp. 356, 363.) To raise a triable issue of fact, however, the employees evidence must do more than present a "weak suspicion" that discrimination was a likely basis for the termination. (Id. at pp. 369-370.) "[A]n employer is entitled to summary judgment if, considering the employers innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that the employers actual motive was discriminatory." (Id. at p. 361, fn. omitted.)
With these principles in mind, we consider the parties contentions.
C. Direct Evidence of Discrimination
Although it is rare for a plaintiff in a discrimination action to be able to produce direct evidence of discrimination, Millecam contends that such "smoking gun" evidence exists in this case. We disagree.
Millecam cites the following as "direct evidence" of a discriminatory motive. She claims that Robinson was hostile towards her when she returned from her first CFRA leave. She asserts that Robinson told her she had been "very emotional" and that her work performance had suffered as a result of being "out too much" on "medical leave." In addition, she cites Robinson informing his successor, Van Bockern, that Millecam had been taking increasing amounts of leave. She claims that Van Bockern told her she was "out too much" after she requested leave to see her ailing aunt before the aunt passed away. Millecam also contends that Van Bockerns callous treatment of another employee who had taken an extended CFRA leave was evidence of his discriminatory animus.
The evidence cited by Millecam does not qualify as direct evidence of a discriminatory motive. The evidence, while suggestive of a possible discriminatory motive, does not "directly reflect the alleged animus" and "bear squarely" on Millecams termination. (See Patten v. Wal-Mart Stores East, Inc., supra, 300 F.3d at p. 25.) "The high threshold for this type of evidence requires that `mere background noise and `stray remarks be excluded from its definition. [Citations.] `A statement that can plausibly be interpreted two different ways—one discriminatory and the other benign—does not directly reflect illegal animus, and, thus, does not constitute direct evidence. [Citation.] Hence, `direct evidence is relatively rare. [Citation.]" (Ibid.)
Millecams perception that she was treated differently after returning from her CFRA leave is circumstantial—not direct—evidence of discriminatory animus. Further, Robinsons statement that Millecam was emotional does not necessarily relate to her CFRA leave, and in any event she admitted she was at times emotional. The statement has a plausibly benign interpretation. The fact Robinson told Van Bockern that Millecam was "tak[ing] more time off" and "los[ing] focus" as time went on does not constitute direct evidence of discriminatory animus. He was simply relating a fact about Millecams absences and expressing his opinion about Millecams concentration on her work.
Millecam places particular emphasis on Robinsons statement that her work suffered as a result of her being out too much on medical leave. Notably, the focus of this purported oral statement—which does not appear in Millecams written review—is that her work performance had suffered. Although Robinson may have attributed the decline in her work performance to time away on medical leave, the fact remains that Robinsons concern was Millecams performance, a legitimate matter for a supervisor to consider. Robinsons allusion to Millecams medical leave as a possible explanation for her declining performance was little more than a "stray remark[]" or "mere background noise" that does not meet the high threshold for direct evidence of discriminatory animus. (See Patten v. Wal-Mart Stores East, Inc., supra, 300 F.3d at p. 25.) At best, the statement constitutes circumstantial evidence of a discriminatory motive.
Likewise, the evidence involving Van Bockern at most constitutes circumstantial evidence of a discriminatory motive. His comment about her "being out too much," taken in context, has nothing to do with CFRA leave or with the decision to terminate Millecam. She explained in her deposition that she asked for time off to visit her sick aunt. Van Bockern granted her time off within an hour of her request.
With respect to the contention Van Bockern had treated another employee unfairly who had taken a CFRA leave, Van Bockern explained that the employee did not apply for reinstatement within the permitted time following her leave. He approached human resources to talk through the options, and, in the document cited by Millecam, merely expressed a desire to "handle [the] case appropriately." The evidence is susceptible to a reasonable and benign interpretation, and does not suggest a discriminatory motive for Millecams termination.
In the two cases relied upon by Millecam, the direct evidence was far different from what she has offered. In Bergene v. Salt River Project Agricultural Improvement & Power Dist. (9th Cir. 2001) 272 F.3d 1136, 1141, the court found direct evidence of a retaliatory motive because a supervisor had told the plaintiff she would not get a promotion if she did not settle her claim of pregnancy discrimination. In Rose v. New York City Board of Education (2d Cir. 2001) 257 F.3d 156, 158, 161, the court found direct evidence of a discriminatory motive based on age where a supervisor stated he would replace the plaintiff with someone "younger and cheaper." By contrast, here there are no comments directly linking Millecams CFRA leaves with the decision to terminate her.
D. Prima Facie Case of Discrimination
Because we conclude Millecam failed to present direct evidence of a discriminatory motive for her termination, she has the burden to establish, with circumstantial evidence, a prima facie case of discriminatory animus. In addition to the evidence she claims is "direct evidence" of a discriminatory motive, Millecam offers the following circumstantial evidence that Chevrons actions were motivated by her exercise of the right to CFRA leave. First, she claims her performance was deemed "exceptional" before her first CFRA leave (as a result of her cluster ranking of 1), yet she received a negative performance review and a cluster ranking of 3 following her first CFRA leave. Further, she asserts that the other contract analysts who did not take CFRA leaves were not terminated. The only two contract analysts to lose their jobs were also the only two who had taken CFRA leave, Millecam and contract analyst 2. She also asserts that Chevron had a continuing need for employees to perform the work she did and that the layoffs attributed to the reorganization were pretextual.
We are mindful that we must construe Chevrons evidence strictly and construe the evidence offered by Millecam liberally, affording her the benefit of the doubt as to the propriety of granting the motion. (Kelly v. First Astri Corp., supra, 72 Cal.App.4th at p. 471.) Further, as acknowledged by our Supreme Court, a plaintiffs burden to establish a prima facie case is "`not onerous." (Guz, supra, 24 Cal.4th at p. 355.) Nevertheless, Chevron argues that Millecam failed to establish a prima facie case of retaliation because she cannot raise a triable issue of fact concerning whether she suffered an adverse employment action as a result of exercising her right to CFRA leave.
It is unnecessary for us to consider at length whether Millecam has established a prima facie case, however, because there is an even more compelling reason to support the grant of summary judgment. As explained below, even assuming Millecam established a prima facie case of discrimination under the CFRA, Chevron met its initial burden of showing legitimate, nondiscriminatory reasons for Millecams termination, and Millecam failed to offer substantial evidence that Chevrons showing was pretextual. Thus, for purposes of this analysis, we will assume without deciding that Millecam established a prima facie case of discrimination.
E. Evidence of Pretext
Chevron satisfied its burden to show legitimate, nondiscriminatory reasons for the adverse employment action against Millecam. It presented evidence that the procurement departments in its North American refineries underwent a reorganization in 2004, resulting in the reduction of contract analyst positions. It demonstrated that Millecam was laid off because she received one of the lowest rankings among the contract analysts who reported to Van Bockern. Her ranking was based on selection criteria related to her work performance and unrelated to her CFRA leave. In addition, Chevron presented evidence that her work performance had deteriorated, offering concrete examples of specific tasks she had failed to perform in a timely or adequate manner. Taken together, Chevrons showing demonstrated legitimate, nondiscriminatory reasons for terminating Millecams employment. The reasons for her termination were facially unrelated to prohibited bias.
Thus, the burden shifted to Millecam to produce specific and substantial evidence that the reasons for her termination were a pretext and that Chevron acted with a discriminatory motive. (Horn v. Cushman & Wakefield Western, Inc., supra, 72 Cal.App.4th at p. 807.) Millecam failed to satisfy her burden.
Millecam argues that the reorganization and ROM process were a sham and were pretextual. Indeed, an employers decision to downsize is not necessarily a sufficient explanation under the FEHA for the dismissal of a worker who is a member of a protected class. (See Guz, supra, 24 Cal.4th at p. 358.) "An employers freedom to consolidate or reduce its work force, and to eliminate positions in the process, does not mean it may `use the occasion as a convenient opportunity "to engage in prohibited discrimination. (Ibid.) However, it is not for the court to determine whether an employers nondiscriminatory decision is wise or correct. (Ibid.) "While the objective soundness of an employers proffered reasons supports their credibility . . ., the ultimate issue is simply whether the employer acted with a motive to discriminate illegally. Thus, `legitimate reasons [citation] in this context are reasons that are facially unrelated to prohibited bias, and which, if true, would preclude a finding of discrimination. [Citations.]" (Ibid.)
As support for her contention the ROM process was pretextual, Millecam claims that Chevron made the decision to terminate her even before the ROM selection decisions were made, citing e-mails between Van Bockern and Hennessey in late May of 2004. In Van Bockerns e-mail to Hennessey, he wrote, "Lets assume that Jeanne Millecam [and two other employees] are told on 6/16 that they are `left standing, and that we would like them to report to . . . begin their redeployment work." Millecam contends this e-mail shows she was targeted for termination even before Van Bockern performed the ROM evaluation for the seven people under his supervision. To the contrary, the e-mail does not evidence any discriminatory or retaliatory bias. As of late May 2004, Van Bockern had already performed his assessment and made his recommendations to Hennessey about the best qualified employees reporting to him. It was "no secret . . . that the headcount in [his] organization was to be decreased significantly," and he knew there was a good chance that Millecam, as well as the two other employees identified in the e-mail, would not have a job under him. There is nothing surprising or untoward in Van Bockerns assumption that Millecam, who received one of the lowest rankings, would not be a successful candidate for one of the local category specialist jobs.
"Left standing" apparently refers to someone whose position has been eliminated, as in musical chairs when the person left standing has no place to sit.
Millecam also contends that Chevrons claim it could retain only three of seven contract analysts for the newly created local category specialist positions is untrue. As support for this contention, Millecam contends that Chevron retained five of the seven contract analysts, placing two in local category specialist positions and three in "buyer" positions. According to Millecam, following her termination Chevron hired two additional local category specialists, one in June 2004 and another in November 2004, and posted a job opening for a local category specialist position in the Richmond refinery in August 2004. Chevron also hired two contractors in the second half of 2004, one of whom eventually became a buyer. The import of Millecams contention is that the reduction in force was a sham, as evidenced by Chevrons need to hire additional employees following the ROM to perform the same kinds of functions Millecam had performed.
The evidence does not bear out Millecams contention. The number of positions reporting to Van Bockern after the reorganization was reduced from seven contract analysts to three local category specialists. One of those selected for a local category specialist position left shortly after the reorganization on a CFRA leave, and later accepted a position with Chevron in Hawaii. Thus, a job opening was posted to fill his position. The number of local category specialists remained steady at three from June 2004, when Millecam was laid off, through the end of 2004. While Millecam is correct that two temporary employees were hired to assist with certain administrative tasks (at different times), this fact is of no consequence, because no additional local category specialists were hired. In short, there is no substantial and significant evidence to suggest Chevron simply filled Millecams position following a "sham" reorganization.
The other job posting to which Millecam points reported to a manager in Houston. Although Millecam argues she was never considered for these positions, the fact is that she never applied for them.
It strains credulity to suggest that Chevron structured the timing and scope of its reorganization of all refinery procurement departments throughout North America as pretext to terminate Millecam for a prohibited reason. Millecam has offered no evidence to suggest the reorganization was a sham and a subterfuge to allow Chevron to lay off workers who had exercised their right to take CFRA leave. Indeed, five individuals from a related group at the Richmond refinery lost their jobs in the reorganization, yet there is no evidence that any of them had ever taken a CFRA or other leave from Chevron.
It is true, of course, that "an employer may not try to shield a discriminatory or retaliatory termination by hiding it in a layoff. [Citation.]" (Weston-Smith v. Cooley Dickinson Hospital, Inc. (1st Cir. 2002) 282 F.3d 60, 69.) Even in a legitimate reorganization, a layoff of a particular employee may constitute discrimination or retaliation if it is motivated by discriminatory animus and the reasons for the employees selection for termination are pretextual.
Here, however, Millecam offers no significant or substantial evidence to suggest Chevrons reasons for selecting her were pretextual. Chevron documented specific and concrete examples of performance deficiencies justifying Millecams low ranking. Although she disagreed with the criticism and stated they were a "bunch [of] crap that wasnt true," she failed to provide any factual details to refute the criticisms. Thus, the evidence about her work performance, both in absolute terms and relative to other contract analysts in the Procurement Department, was left essentially unchallenged. To the extent Millecam refers to the same circumstantial evidence she relied upon to support a prima facie case of discrimination, such as the reduction in her cluster ranking following her first CFRA leave, that evidence is insufficient to overcome Chevrons showing that its selection of Millecam for termination was based on legitimate, nondiscriminatory reasons. The reduction in her cluster ranking resulted from a decline in her work performance, which Chevron documented and she failed to refute.
Under these circumstances, we conclude as a matter of law that Millecam has failed to point to significant and substantial evidence raising a triable issue of material fact concerning whether Chevrons proffered reasons for its actions were a pretext for prohibited retaliation under the CFRA. Chevron is therefore entitled to summary judgment on the claim.
3. Disability Discrimination
In her first cause of action, Millecam alleges Chevron discriminated against her as a consequence of a known and/or perceived mental disability. Her claimed disability is depression. To establish a prima facie case of disability discrimination under the FEHA, Millecam must establish that (1) she was a member of a protected class; (2) she was qualified or was performing competently in the position she held; (3) she suffered an adverse employment action; and (4) some other circumstance suggests a discriminatory motive. (Guz, supra, 24 Cal.4th at p. 355; see also Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1246.)
Millecams disability claim suffers from the same infirmity as her CFRA retaliation claim. Even if she could establish a prima facie showing of disability discrimination, Millecam has offered no substantial or significant evidence suggesting that the legitimate, nondiscriminatory reasons for her termination were pretext for prohibited disability discrimination. Consequently, Chevron is entitled to judgment as a matter of law on this cause of action.
Her disability discrimination claim also suffers from an even more fundamental flaw. As Chevrons evidence makes clear, there is nothing to indicate Chevron was aware of her claimed disability.
When she returned from her second CFRA leave in 2004, Millecam had no restrictions on her ability to perform her job. Indeed, other than while she was pregnant, she had never had any restrictions on her ability to perform her job at Chevron. Although she now alleges she is disabled to due to depression, her asserted disability never prevented her from working, other than during her CFRA leaves and for the two days before her second CFRA leave. With the exception of those specific periods of time, Millecam had always considered herself perfectly able to perform her job duties at Chevron, and her asserted disability had not affected her ability to do her job. She never requested any accommodations from the company and could not think of any she should have requested.
Millecam never told her managers why she was out on CFRA leave and she was never questioned about the details of her leave. She had no reason to believe that anyone in management at Chevron viewed her as being "disabled." Indeed, both Robinson and Van Bockern indicated they never believed or had any reason to believe Millecam was disabled at any time before she was terminated. " `An adverse employment decision cannot be made "because of" of a disability, when the disability is not known to the employer. [Citations.]" (Avila v. Continental Airlines, Inc., supra, 165 Cal.App.4th at p. 1247.) Here, the disability was not known to the employer. The mere fact Millecam had taken two CFRA leaves, at least one of which was known by her supervisor to be a medical leave, does not raise a triable issue concerning whether she was disabled or perceived to be disabled. There was nothing to indicate Millecam suffered from a continuing disability. Thus, she failed to establish a prima facie case of disability discrimination because there was no evidence to support the contention she suffered an adverse employment consequence because of her claimed disability.
4. Wrongful Termination in Violation of Public Policy
A cause of action for wrongful termination in violation of public policy fails if the court determines there was no violation of a statutory or constitutional provision on which the cause of action is based. (See, e.g., Hanson v. Lucky Stores, Inc., supra, 74 Cal.App.4th at p. 229 ["because [plaintiffs] FEHA [disability discrimination] claim fails, his claim for wrongful termination in violation of public policy fails"].) Because there is no triable issue of material fact on Millecams disability discrimination claim under the FEHA or her retaliation claim under the CFRA, no public policy has been breached in her separation from employment. Consequently, her third cause of action for wrongful termination in violation of public policy fails as a matter of law.
5. Unfair Competition
In her fourth case of action, Millecam alleges that Chevron violated the Unfair Competition Law (UCL) (Bus. & Prof. Code, § 17200) by engaging in activities that support her causes of action for retaliation under the CFRA and disability discrimination under the FEHA. Millecam acknowledges that her UCL claim is premised on her discrimination and retaliation claims, arguing that the violation of any law or statute can serve as the predicate for a UCL claim. (See Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 180.) Because Millecams statutory discrimination and retaliation claims fail as a matter of law, her UCL claim likewise fails because there is no predicate violation of a statute on which to base the cause of action.
6. Intentional Infliction of Emotional Distress
Millecams fifth cause of action for intentional infliction of emotional distress is based on the same alleged conduct supporting her causes of action for disability discrimination and retaliation under the CFRA. Chevron is entitled to judgment as a matter of law on the cause of action because (1) the claim is preempted by the exclusivity provisions of the workers compensation law, and (2) Millecam has not alleged the requisite outrageous conduct to support such a claim.
Workers compensation provides the exclusive remedy for employees who sustain injuries arising out of and incurred during the course of the employment relationship, as long as the employers conduct neither contravenes a fundamental public policy nor exceeds the risks inherent in the employment relationship. (Lab. Code, § 3600; Livitsanos v. Superior Court (1992) 2 Cal.4th 744, 754.) None of the conduct Millecam attributes to Chevron exceeds the risks of the employment relationship. To the contrary, discipline, criticism, and termination are normal parts of the employment relationship. (Shoemaker v. Myers (1990) 52 Cal.3d 1, 25; but see Rojo v. Kliger (1990) 52 Cal.3d 65, 71 , fn. 2, 81 [employers discriminatory actions could support emotional distress claim where conduct included sexually assaultive behavior].) Furthermore, to the extent Chevrons conduct does not violate laws prohibiting discrimination (as we have determined), there is no suggestion the conduct violates some fundamental public policy. As a consequence, Millecams emotional distress claim is preempted by the exclusivity provisions of the workers compensation law, even if the alleged conduct "may be characterized as intentional, unfair or outrageous . . . ." (Shoemaker v. Myers, supra, 52 Cal.3d at p. 25.)
Furthermore, an essential element of a claim for intentional infliction of emotional distress is "outrageous conduct beyond the bounds of human decency. [Citations.]" (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 80.) In Janken, the plaintiffs asserted that their employer wrongfully demoted, terminated, or laid them off, downgraded their performance appraisals, failed to provide work assignments, failed to provide sufficient clerical support, refused to pay them appropriate salaries, and failed to warn of possibly impending layoffs, all because of their age. (Id. at p. 79.) The appellate court rejected the plaintiffs emotional distress claim, reasoning that "[m]anaging personnel is not outrageous conduct beyond the bounds of human decency," even if "improper motivation is alleged." (Id. at p. 80.) Thus, an improper or discriminatory motive does not transform personnel management activity into outrageous conduct.
The core of Millecams complaint—that her performance was criticized and her employment terminated—arises from typical personnel management activities. As a matter of law, the alleged conduct does not support a cause of action for intentional infliction of emotional distress, even if Millecam could demonstrate that Chevron acted with an improper motive.
7. Continuance of Summary Judgment Hearing
Millecam contends the trial court abused its discretion in denying her request for a continuance of the summary judgment hearing. As explained below, we find no abuse of discretion.
Code of Civil Procedure section 437c, subdivision (h) provides in relevant part: "If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication or both that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make any other order as may be just." (Italics added.) A party seeking a continuance under that subdivision must show: "`"(1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain these facts. [Citations.]" [Citation.] [Citation.]" (Ace American Ins. Co. v. Walker (2004) 121 Cal.App.4th 1017, 1023.) "We apply an abuse of discretion standard of review to the trial courts decision not to continue a summary judgment motion for the purpose of allowing further discovery. [Citation.]" (Combs v. Skyriver Communications, Inc. (2008) 159 Cal.App.4th 1242, 1270.)
Nearly one year after Millecam filed suit, Chevron filed its motion for summary judgment. On June 23, 2006, over one month after Chevron filed its motion, Millecam served document requests upon Chevron seeking, among other things, PMPs for each of the contract analysts at the Richmond refinery for the years 2000 through 2004, and unredacted versions of two documents produced by Chevron containing cluster rankings for all of the contract analysts. On July 11, 2006, Chevron responded that it would provide PMPs for the years 2003 and 2004. Millecam indicated she would file a motion to compel production of the PMPs for 2002 and 2003, as well as unredacted versions of the cluster ranking documents.
Chevron had previously produced documents showing cluster rankings for all Richmond refinery contract analysts for 2003, as well as Millecams cluster rankings for the period 2000 through 2003.
At the time she filed her summary judgment opposition, Millecam sought to continue the original July 28, 2006, summary judgment hearing date. She argued the delay was necessitated by, among other things, the need for her coworkers PMPs as well as the cluster rankings of other contract analysts for years before 2003. In the declaration supporting the motion for a continuance, Millecams counsel indicated he anticipated completing discovery by August 18, 2006.
On July 20, 2006, Millecam filed a motion to compel production of the PMPs for 2000 through 2004 and the unredacted versions of the cluster ranking documents. The hearing was originally scheduled for August 28, 2006, but the court rescheduled it for August 18, 2006, after granting a motion to shorten time.
On July 27, 2006, the day before the summary judgment motion was scheduled to be heard, the trial court issued a tentative ruling continuing the hearing to August 18, 2006, the date by which Millecams counsel stated he could complete discovery, and the same date Millecams motion to compel was scheduled to be heard. The tentative ruling did not explain why the hearing had been continued but instead only reflected that the hearing had been continued "on [the] courts [own] motion."
At the August 18, 2006, hearing on Chevrons motion for summary judgment, counsel for Millecam requested a ruling on her motion for a continuance. The trial court informed the parties it had granted the continuance by moving the hearing date from July 28 to August 18, 2006. Millecams counsel stated he was unaware the court had granted the motion to allow Millecam to undertake further discovery and present further evidence. In response to the courts inquiries about why Millecam had failed to present any further evidence, her counsel explained he could not do so without leave from the court, i.e., unless it had granted Millecams motion pursuant to Code of Civil Procedure section 437c, subdivision (h). Millecams counsel sought additional time to pursue discovery.
After hearing argument on the motion for a further continuance, including a discussion of the relevance of the documents Millecam sought in her motion to compel, the trial court denied the motion for a further continuance. The court stated: "I guess my problem is this. If there has been a consistent position from the beginning that this [information] wasnt going to be produced, and if you believe that you are entitled to this information, you could have brought your motion to compel last year sometime. Or within the last six months. Whenever your original document request went out. [¶] And if this is necessary to your case, then Im surprised that you are doing that—that you are waiting to do that until after the close of discovery, and that we now have this calendared ten days before trial. [Code of Civil Procedure section] 437c[, subdivision] (h) is not a carte blanche to continue motions for summary judgment just because you havent gotten your discovery done in a timely manner. [¶] And I just dont see why I should continue this any further, in light of the fact that nothing was presented or offered or requested to be filed in the intervening four weeks since I continued this last time. And perhaps I could have made it clearer that I was continuing it per your request under [Code of Civil Procedure] section 437c[, subdivision] (h), but you still have not made any request to me to file a supplemental pleading. You dont have it in your possession, you havent made it, and we are ten days from trial."
As the trial court recognized, there was no justification for the delay in pursuing the discovery at issue, which was not something new or novel but had instead been requested early on in the litigation. According to Chevron, it objected to the initial document requests on relevance and third-party privacy grounds. There is no indication Millecam moved to compel production of the documents following Chevrons initial refusal to produce them. Millecam failed to adequately explain why she could not have conducted the requested discovery and moved to compel, if necessary, long before the time Chevron filed its summary judgment motion. (See Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 512 [continuance denied in absence of explanation why discovery could not have been conducted earlier].)
Ordinarily, a party waives the right to compel a further response to an inspection demand unless notice of the motion to compel is given within 45 days of the service of the response refusing to produce the requested items. (See Code Civ. Proc., § 2031.310.)
Millecam purports to justify her delay by arguing that Chevrons summary judgment motion put her coworkers PMPs "at issue." Yet it was not until over a month after Chevron served its motion that Millecam served her request for documents along with a deposition notice. And, when the trial court continued the hearing on Chevrons summary judgment motion, Millecam effectively did nothing to expedite consideration of her motion to compel, which was scheduled to be heard on the same date as the rescheduled summary judgment hearing. Millecam had at least three opportunities to obtain the requested discovery. She had almost a year before Chevron filed its summary judgment motion. She had another 79 days between the filing of the motion and the original hearing date. Plus, she was granted an additional 22 days when the court continued the summary judgment hearing date.
It would have been preferable if the courts order granting the continuance had made clear the court was granting Millecams motion for a continuance pursuant to Code of Civil Procedure section 437c, subdivision (h). The order created some needless confusion about whether Millecam would be allowed to present further evidence in opposition to the motion. Nevertheless, as the trial court observed, Millecam was afforded additional time to conduct discovery, her counsel could have sought clarification of the courts order (which, despite some ambiguity, continued the hearing to the date by which counsel indicated he could complete discovery), and her counsel could have sought leave to present additional evidence, even if counsel believed a question remained about whether the court had acted on her motion.
In addition, Millecam failed to meet her burden to show the documents were essential to opposing the summary judgment motion. As part of the ROM process, Chevron reviewed cluster rankings for 2003. It did not review cluster rankings for 2002 or earlier. Thus, to the extent Millecam sought unredacted documents that would show cluster rankings before 2003, the information was marginally relevant at best, but certainly not essential. Likewise, PMPs from 2000 through 2002 for Millecams coworkers would shed little or no light on supposedly retaliatory actions taken against Millecam after she returned from CFRA leaves in 2003 and 2004. Although Millecam argues such documents were relevant to assess Millecams performance vis-à-vis other contract analysts, it would appear the relevant documents, if any, were from 2003 and 2004, when Millecam claims she suffered retaliation and/or discrimination.
In addition, Millecam had ample opportunity to address comparator issues with her supervisors and most of her coworkers. She deposed virtually all relevant Chevron personnel—Robinson, Hennessey, Van Bockern, and all but one of her fellow contract analysts. The depositions continued well beyond the original discovery cutoff. In each of these depositions, Millecams attorneys addressed, or could have addressed, comparator issues. Yet, despite the opportunity to address such issues in depositions, Millecam came forward with no new evidence to support her claims.
Under the circumstances, the trial court did not abuse its discretion in denying the request for a further continuance.
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal.
We concur:
Siggins, J.
Jenkins, J.