Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Ct. No. BC328252, John P. Shook, Judge. Affirmed.
Shegerian & Associates and Carney R. Shegerian for Plaintiff and Appellant.
Payne & Fears, Jane M. Flynn and Karen O. Frankudakis for Defendants and Respondents.
OPINION
KITCHING, J.
INTRODUCTION
Plaintiff and appellant Yasmine Amaria (Amaria) sued defendant and respondent Bank of America (Bank) and its employee Michelle Broneau, (Broneau) (collectively defendants) for wrongful termination from the Bank. Amaria, a long-term employee of the Bank, alleged, among other things, that her termination was in retaliation for her alleged exercise of rights pursuant to the California Family Rights Act (CFRA) (Gov. Code, § 12945.2), which generally allows eligible employees to take 12 workweeks of unpaid leave during a 12-month period for family and medical care. Amaria also alleged that defendants discriminated and harassed her for alleged exercise of rights pursuant to the CFRA.
The trial court granted summary judgment/adjudication in favor of defendants. We affirm. As to Amaria’s third and fifth causes of action for discrimination and retaliation for her alleged exercise of rights under the CFRA, the Bank presented evidence that her termination was for a legitimate non-discriminatory and non-retaliatory reason. Amaria failed to raise a triable issue of material fact that the reason provided was a pretext for discrimination or retaliation.
As to Amaria’s fourth cause of action for harassment for allegedly exercising rights under the CFRA, Amaria failed to raise a triable issue of material fact that defendants’ conduct in terminating her constituted anything other than the exercise of routine personnel duties, upon which harassment claims cannot be based. (Reno v. Baird (1998) 18 Cal.4th 640, 646-647 (Reno).)
As to Amaria’s sixth cause of action for breach of an implied employment contract to be terminated only for good cause, Amaria failed to raise a triable issue of material fact that her employment was anything other than at will.
FACTUAL AND PROCEDURAL BACKGROUND
1. Amaria’s Employment History at the Bank
In January 1976, Amaria began her employment with the Bank as a secretary. At the time of her termination, the Bank had employed Amaria for over 28 years.
In 1979, the Bank promoted Amaria to the position of loan officer. In 1996, the Bank created a program called the Premier Program. At that time, Amaria began working as an account executive with the Premier Program. Amaria’s job title later changed to Client Manager for the Premier Bank, though her job duties remained the same.
In 2001, the Bank promoted Amaria to a vice-president position. Her responsibilities included managing portfolios of investments of “premier clients,” those clients with deposits of $100,000 and/or deposits and mortgages of $250,000.
2. The Bank’s Representations Regarding Continued Employment
At the time she was hired, no one at the Bank promised Amaria that she would be employed for any specific length of time. Throughout her employment, Amaria received or had access to copies of the Bank’s employee handbooks. Beginning in 1992, the Bank’s “Working at BankAmerica” booklet stated: “Your employment with BankAmerica is at will, has no specified length, and either you or the company may end it at any time with or without notice or cause.”
In 1999, when Amaria became a registered representative to sell securities, she signed the Bank’s “Dual Employment Agreement,” which provided: “The registered representative acknowledges that their employment by the bank and the firm is at-will . . . Nothing in this agreement should be construed as a guarantee of continued employment for any period of time.”
3. The Bank’s Employment Evaluation Process
In her position as a Client Manager for the Premier Bank, the Bank evaluated Amaria on her ability to meet sales goals for mortgages, deposits, and investments, as well as her ability to provide customer service to the premier clients.
The Bank also evaluated Amaria’s job performance based upon her interaction with other Bank employees. On average, Amaria would speak with employees at the Bank’s Loan Center, which processed loan applications, around three times per day. Amaria understood she was not to be rude or abrasive towards any other Bank associates, and that she was to treat Bank associates and customers with courtesy and in a professional, non-abusive and non-threatening manner.
The Bank also evaluated Amaria on her ability to acquire new clients and on her “Client Delight scores,” which measured clients’ overall satisfaction with their client manager and with the Bank in general. Amaria testified that in her position as a client manager, she understood it was a minimum requirement for her to meet her Client Delight scores.
An outside agency prepared the Client Delight Surveys. The agency would call Amaria’s clients and ask how much contact they had with Amaria and how they rated their satisfaction with her and the Bank. Amaria had no reason to believe the outside agency had any interest in lowering her Client Delight scores.
4. Amaria’s Evaluations as a Loan Officer
In June and September 1985, the Bank positively evaluated Amaria’s performance. The Bank awarded Amaria 1,000 performance bonus award credits for her “high level of performance in servicing the needs of [the Bank’s] customers”
In January 1986, the Bank designated Amaria as her group’s achiever for the Bank’s “Yes We Can Sell” promotion.
On February 25, 1986, the Bank recognized Amaria as being one of her region’s top performers. In 1987, Amaria was recognized for being second in loan production in her entire asset management group.
The Bank did have some criticism of Amaria’s performance. In 1997, the Bank counseled Amaria for failure to follow Bank policy and her failure to utilize the Bank’s business partners for certain clients.
5. Amaria’s Evaluations as Client Manager from 2000 to 2002
The Bank evaluated Amaria’s performance as a Client Manager on a quarterly or at least an annual basis. During the evaluation process, Amaria would identify her performance goals at the beginning of the year. The Bank than rated her on those goals at the end of the year.
In 2000, the Bank named Amaria a “Gold Club Recipient” for her “outstanding Performance and Achievements.”
In the 2001 performance evaluation, the Bank rated Amaria as “did not meet” on two of three goals for client satisfaction and retention, and on four goals for relationship building.
In 2002, however, Amaria received eight different awards for her outstanding job performance. On June 18, 2002, the Bank notified Amaria in writing that she had received the title of Premier Client Manager II, stating: “This title change reflects your leadership and accomplishments.”
6. Amaria’s Evaluations as Client Manager in 2003
In written communication, the Bank also notified Amaria: “Congratulations on exceeding your investment objectives for November 2003. Your achievement has rewarded you an exclusive position in the Investment Excellence Club for November 2003!”
In 2003, Steve Mahinfar (“Mahinfar”) was Amaria’s supervisor in a position entitled “Market Manager.” On Amaria’s 2003 performance evaluation, Mahinfar explained that Amaria exhibited problems with inappropriate behavior towards other associates and customers, and in her failure to meet client satisfaction goals. Mahinfar, however, never personally observed Amaria acting rudely to anyone during the time he supervised her.
In the first quarter of 2003, however, Amaria exceeded her sales goals for both deposits and credits. Her deposit goal was $550,000, which she exceeded by producing $3,275,275 in deposits. Amaria’s credit sale goal was $2,700,000, which she exceeded by producing $7,311,294.
In the second quarter of 2003, Amaria also exceeded sales goals for deposits, credits, and investments. Amaria’s supervisor, Mahinfar, provided deposition testimony that Amaria’s deposit production was excellent.
The 2003 performance evaluation showed that Amaria met and exceeded her client satisfaction during the second quarter of 2003.
For the fourth quarter of 2003, however, Amaria was below her team of client managers for every category on her Client Delight survey.
7. Amaria’s Mother Suffers a Heart Attack
On December 31, 2003, at approximately 10:30 p.m., Amaria’s mother suffered a heart attack. At that time, Amaria was on a pre-planned vacation, which was intended to last until January 6, 2004.
Amaria remained with her mother in the emergency room. The treating physician informed Amaria that her mother required triple bypass surgery.
8. Defendant Broneau Becomes Amaria’s New Supervisor
On January 1, 2004, defendant Broneau assumed Mahinfar’s position as Market Manager. At that time, Broneau became Amaria’s supervisor.
9. Amaria’s Mother Has By-Pass Surgery
After the January 6, 2004 by-pass surgery, Amaria cared for her mother. She helped her bathe and dress. She cooked for her, sorted her medicines, and regulated her blood pressure. In order to provide the care her mother needed, Amaria required intermittent leave from the Bank.
10. Amaria Informs the Bank of Her Mother’s Condition
On January 6, 2004, Amaria informed Broneau of her mother’s condition. She told Broneau that she would need to take a week off initially, followed by intermittent leave to care for her mother.
Amaria requested that the Bank permit her to work from a branch location closer to her mother’s home. Amaria provided the deposition testimony of Broneau, who testified that she and Amaria discussed the possibility of a medical leave.
11. Amaria’s Leave
Broneau arranged for Amaria to work from the West Los Angeles hub, which was closer to Amaria’s mother’s home, instead of the Hollywood hub, where Amaria normally worked. Broneau denied Amaria’s request to work from the Bank’s Ocean Park branch, which was closest to Amaria’s mother’s house.
Throughout January and February 2004 at the West Los Angeles hub, Amaria worked in the afternoons and evenings. She handled client requests over the telephone or referred them to the support team for assistance. Amaria worked from the West Los Angeles hub branch until the third week in February 2004, at which time she returned to the Hollywood hub.
12. Amaria’s Mother’s Doctor Sends FMLA Application to the Bank
In late January 2004, Amaria spoke with Paula Martinez of the Premier Relationship Support Team. Martinez informed Amaria that she was entitled to take leave to care for her mother. Martinez faxed Amaria a form to apply for the leave. Amaria provided the form to Michelle Ho, M.D., her mother’s physician.
On February 5, 2004, Amaria’s mother’s physician faxed the form to the Bank’s personnel center as instructed on the form.
13. The Bank Counsels Amaria for Low Client Delight Scores
On June 11, 2004, the Bank provided Amaria with a written counseling document criticizing Amaria for low Client Delight scores from fourth quarter 2003 through second quarter 2004. The document stated: “You did show improvement in [the] first quarter 2004 client delight, however, your contact rate is still too low. [¶] You must demonstrate immediate and sustained improvement in this area, which equates to an improved score in [the] second quarter 2004 results. We will review these results once they are available in early to mid-July, and based upon your performance in these categories, we will decide what further action to take. . . . [¶] If your scores decline and you do not elevate your results to the minimum acceptable bar by the end of third quarter 2004, there will no longer be a place for you in Premier.”
The counseling document also addressed Amaria’s behavior towards other associates, complaints from customers, and Amaria’s failure to comply with the Premier Bank dress code. The counseling document was critical of Amaria’s relationship with the Banking Center.
It also chronicled an incident in which a Bank customer had complained about Amaria’s behavior and attitude while Amaria participated as a lobby manager. The counseling document reported that the customer withdrew approximately $118,000 based upon his interaction with Amaria.
In response to the low Client Delight scores, Amaria presented the deposition testimony of Broneau, who testified that she did not consider Amaria’s need to take care of her mother when evaluating Amaria’s Client Delight Scores.
14. Amaria Complains to Bank about Broneau.
On June 21, 2004, Amaria provided the Bank with a written criticism of Broneau. In the letter, Amaria voiced her objection to Broneau’s failure to allow Amaria to care for her mother. The letter accused Broneau of an angry reaction to Amaria’s request for family leave. The letter also stated that Broneau told Amaria she should find nurses to take care of her mother.
15. The Bank Counsels Amaria for Disobeying Broneau’s Written Instructions
On June 30, 2004, Broneau provided Amaria with a written counseling document. There, Broneau noted that despite her written instruction to the contrary, Amaria had contacted a customer who complained about her. Amaria had also contacted the client manager involved in the incident, despite instructions not to.
In the counseling letter, Broneau advised Amaria that she needed to follow the Bank’s policies, including the Bank’s Statement of Respect for its associates and customers. The counseling letter also indicated that failure to meet the Bank’s expectations could result in further disciplinary action, including termination. Amaria received the counseling letter, but refused to sign it.
16. Amaria’s Work Performance During the First two quarters of 2004
For the first and second quarters of 2004, Amaria’s Client Delight scores were below goal and below the team scores.
In June 2004, the Bank, however, gave Amaria an award for more than doubling the Bank’s client acquisition goal.
17. Broneau Counsels Amaria Regarding Rate Lock Policies
On September 22, 2004, Broneau sent Amaria a written counseling letter regarding the Bank’s rate lock policy. Broneau wrote: “I have very clearly outlined the bank’s policy when it is applicable to subordinating a second mortgage with another lender. . . . [¶] . . . You stated in your voicemail to me today, that although you are aware of the polic[y], you couldn’t apply the policy to this client, as you would lose the deal. [¶] You are not allowed to change policies to suit your clients when you see fit. You are encouraged to contact me with special circumstances and we can review and discuss any and all possible solutions. [¶] I expect immediate and sustained improvement in this area. Your failure to comply with adherence to any and all bank policies could lead to further disciplinary actions, up to and including terminations.”
18. Amaria Takes Time off to Care for her Father
In her declaration in opposition to defendants’ motion for summary judgment, Amaria stated: “My father entered the hospital for his osteoarthritis on October 12, 2004. I required time off from work to be by his side. I notified Michelle Broneau that I would need to miss work to be with him. When [Vince] Caballero held his first staff meeting, I was unable to attend because my father was in the hospital.”
19. Vince Caballero Becomes Amaria’s Supervisor
On October 16, 2004, Vince Caballero (“Caballero”) assumed Broneau’s position as Market Manager and became Amaria’s supervisor.
On October 19, 2004, Broneau and Caballero gave Amaria a written counseling document outlining Amaria’s performance situation, including: low Client Delight scores; complaints from clients; and Amaria’s practice of setting commitments on loan rate locks, which were contrary to Bank policy.
In this counseling letter, the Bank advised Amaria: “If your third quarter scores do not achieve [the stated] target, you will no longer have a position within Premier Banking.”
20. Amaria’s Performance during the Third quarter of 2004
Amaria did not meet her Client Delight scores for the third quarter of 2004. Amaria’s scores for the third quarter were below her team and all Premier Bank client managers.
21. The Bank Terminates Amaria
On October 27, 2004, Broneau and Caballero met with Amaria. During this meeting, they advised Amaria of the decision to terminate her employment. They presented Amaria with a memorandum which outlined her failure to meet her Client Delight scores. The memorandum stated: “Your conduct, including failure to meet performance standards and disruptive behaviors, is not acceptable.”
As to the Client Delight Scores, the memorandum stated: “[Y]ou were to meet the following minimum expectations in Client Delight in the third quarter: Contact Rate 68%, Client Delight with Client Manager 74%, Client Delight with Bank of America 56%. The following is a summary of your actual results: Contact Rate 53%, Client Delight with Client Manager 60%, and Client Delight with Bank of America 40%.”
22. Amaria’s Former Clients Write to Bank
On November 3, 2004 three customers sent the Bank a letter praising Amaria. The customers wrote they had “never seen this type of dedication nor had [they] experience[d] such excellent service.” The customers also referred to Amaria as “an asset to Bank of America” and to the customers themselves.
23. Amaria Files Suit
On February 3, 2005, Amaria filed suit against the Bank and Broneau. Only four of the causes of action are at issue in this appeal: the third cause of action for discrimination in violation of the CFRA, the fourth cause of action for harassment in violation of the CFRA, the fifth cause of action for retaliation in violation of the CFRA, and the sixth cause of action for breach of an implied-in-fact contract not to terminate without good cause.
As alleged in the complaint, Bank employee Broneau is a defendant to the harassment and retaliation claims.
Amaria alleged that defendants discriminated and retaliated against her, and harassed her for allegedly exercising her rights to care for her mother and father. She also alleged the existence of an implied-in-fact contract not to terminate without good cause based upon her positive evaluations and promotions, her length of employment, and the Bank’s alleged practice of only terminating other employees for good cause.
24. The Trial Court Grants the Bank’s Motion for Summary Judgment/Summary Adjudication
The trial court granted the Bank’s motion for summary adjudication as to each of plaintiff’s causes of action. As to the third and fifth causes of action for discrimination and retaliation, respectively, in violation of the CFRA, the trial court found that defendants articulated a legitimate non-discriminatory reason for terminating Amaria’s employment and that Amaria did not raise a triable issue of material fact that the reason for the termination was a pretext for discrimination.
As to the fourth cause of action for harassment in violation of the CFRA, the trial court found that Amaria did not raise a triable issue of material fact that defendants engaged in conduct that was outside personnel duties. The trial court explained that the personnel decisions in this case could not constitute harassment as a matter of law.
Finally, as to the sixth cause of action for breach of an alleged implied-in-fact contract to terminate only for good cause, the trial court found that Amaria’s employment relationship was at will.
The trial court entered judgment for defendants. Amaria timely filed a notice of appeal.
CONTENTIONS
Amaria contends the trial court erred by summarily adjudicating the third, fourth and fifth causes of action for discrimination, harassment, and retaliation based upon Amaria exercise of rights under the CFRA. Specifically, Amaria asserts that: (1) she presented sufficient evidence to establish a prima facie case of discrimination, harassment and retaliation when she exercised rights in the CFRA; (2) she presented sufficient evidence to show that the Bank’s reasons for termination were pretextual; and (3) the “personnel decision” doctrine does not protect the Bank or Broneau against the harassment claim.
Amaria also asserts the trial court erred by summarily adjudicating the sixth cause of action for breach of an alleged implied contract to terminate only for good cause. Amaria asserts that she raised a triable issue of material fact that her employment was not at will and that her termination was a breach of contract.
Finally, Amaria asserts that the trial court abused its discretion by sustaining defendants’ evidentiary objections to her declaration filed in opposition to the motion for summary judgment.
The Bank disputes the foregoing and claims that Amaria has not carried her burden to raise a triable issue of material fact. In addition, the Bank asserts that Amaria’s claims are barred and preempted by the National Bank Act (12 U.S.C. § 24).
Because we conclude that Amaria has failed to raise a triable issue of material fact, we have no occasion to address the Bank’s preemption argument.
STANDARD OF REVIEW
This court reviews de novo a trial court’s grant of summary judgment. (Carlton v. Quint (2000) 77 Cal.App.4th 690, 698-699.) Summary judgment is properly granted if no question of fact exists and the pleadings raise issues that may be decided as a matter of law. (Sanchez v. Swinerton & Walberg Co. (1996) 47 Cal.App.4th 1461, 1464.)
In Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849, the California Supreme Court explained: “[I]n moving for summary judgment, a ‘defendant . . . has met’ his ‘burden of showing that a cause of action has no merit if’ he ‘has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.’ ” (Id. at p. 849, citing Code Civ. Proc., § 437c, subd. (o)(2).)
In Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718 (Martin), the court explained that in seeking summary judgment, an employer bears the initial burden to show that the action has no merit. An employee must then present sufficient evidence to raise a triable issue of material fact of discretion by establishing a prima facie showing of discrimination or by showing the employer’s proffered justification for the termination was a pretext. (Id. at p. 1730.)
The Martin court explained: “[W]e believe the correct rule to be that to meet an employer’s sufficient showing of a legitimate reason for discharge the discharged employee, to avert summary judgment, must produce ‘substantial responsive evidence’ that the employer’s showing was untrue or pretextual.” (Martin, supra, 29 Cal.App.4th at p. 1735.)
DISCUSSION
1. Introduction to the California Family Rights Act
The CFRA, codified in Government Code section 12945.2, is contained in the California Fair Employment and Housing Act. (Neisendorf v. Levi Strauss & Co. (2006) 143 Cal.App.4th 509, 516 (Neisendorf).) It provides protections to employees needing family leave or medical leave.
Government Code section 12945.2, subdivision (a), provides in pertinent part: “[I]t shall be an unlawful employment practice for any employer . . . to refuse to grant a request by any employee with more than 12 months of service with the employer, and who has at least 1,250 hours of service with the employer during the previous 12-month period, to take up to a total of 12 workweeks in any 12-month period for family care and medical leave. Family care and medical leave requested pursuant to this subdivision shall not be deemed to have been granted unless the employer provides the employee, upon granting the leave request, a guarantee of employment in the same or a comparable position upon the termination of the leave.”
The CFRA entitles eligible employees to take up to 12 weeks of unpaid medical leave during a 12 month period for personal or family medical conditions, including care for parents. An employee who takes CFRA leave is guaranteed that taking leave will not result in a loss of employment or in other adverse employment actions. (Neisendorf, supra, 143 Cal.App.4th at pp. 516-517.)
2. The Trial Court Did Not Err By Summarily Adjudicating the Third and Fifth Causes of Action for Discrimination and Retaliation
The trial court did not err by finding that defendants presented legitimate non-discriminatory and non-retaliatory reasons for terminating Amaria’s employment, and that Amaria failed to raise a triable issue of material fact that the stated reason was a pretext to mask an illegal motive.
The June 11, 2004, June 30 2004, September 22, 2004 and October 19, 2004 counseling memorandums, as well as the October 27, 2004 termination memorandum, show that defendants terminated Amaria for her failure to meet the Client Delight scores for four consecutive quarters; her commitments on rate locks contrary to the Bank’s policy and several staff and customer complaints.
The June 11, 2004 memorandum indicated that a Bank customer withdrew $118,000 from the Bank because of interaction with Amaria. The memorandum also warned her about her low Client Delight scores and stated that if she did not improve the scores the Bank would take further action.
The June 30, 2004 memorandum indicated that contrary to an express directive from her supervisor, Broneau, Amaria telephoned a customer who had complained about her. Amaria also telephoned the client manager involved in the situation. Thus, the bank submitted evidence to show that a least one customer with a substantial bank account complained about Amaria, and that Amaria engaged in insubordinate behavior by contacting the customer after being instructed not to. In the June 30 memorandum, Broneau warned Amaria that failure to comply with bank directives could result in termination.
Despite being warned to obey Bank policies, the September 22, 2004 memorandum shows that Amaria did not act in accord with known Bank policies regarding rate locks. In addition, the memorandum shows that defendants had previously warned Amaria about compliance with rate lock policies. Again, Broneau warned her that failure to comply with the Bank’s policies could result in termination.
The October 19, 2004 counseling memorandum stated that Amaria had fallen below Client Delight targets for the first two quarters of 2004. The memorandum warned that if her third quarter targets were low, she would no longer have a position with the Bank’s Premier Banking group.
Finally, in the October 27, 2004 termination letter, the Bank explained that Amaria’s third quarter Client Delight scores failed to meet minimum expectations. Consistent with the October 19, 2004 written warning, the Bank terminated her employment. Notably, Amaria testified that she understood that providing excellent customer service and meeting her goals for Client Delight scores were requirements for her position as a client manager.
By articulating a legitimate non-discriminatory and non-retaliatory reason for her terminating her employment, the burden shifted to Amaria to raise a triable issue of material fact that the stated reasons for her termination were pretextual. (Martin, supra, 29 Cal.App.4th at p. 1730.) According to the court in Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52: “At this point, to avoid summary judgment, appellant had to ‘ “offer substantial evidence that the employer’s stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination.” ’ [Citation.] An employee in this situation can not ‘simply show the employer’s decision was wrong, mistaken, or unwise. Rather, the employee “ ‘must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them “unworthy of credence,” [citation], and hence infer “that the employer did not act for the [ . . . asserted] non-discriminatory reasons.” ’ ” ’ ” (Id. at p. 75.) Amaria failed to carry her burden.
Amaria has not shown any evidence that the Bank or Broneau acted with discriminatory animus. Broneau’s questions to Amaria in January or February 2004 and suggestion that Amaria hire nurses to care for her mother do not show discriminatory animus. In addition, the discussion of nurses occurred ten to eleven months before defendants terminated Amaria. The Bank gave Amaria three quarters to improve her Client Delight scores, which she failed to do.
Amaria also asserts the fact that Broneau was involved in the October 27, 2004 termination shows discriminatory animus. We reject this suggestion. It is reasonable to have a direct supervisor with first hand knowledge involved in important personnel decisions, such as the termination at issue in this case. In addition, the termination decision was not made solely by Broneau. The record indicates that Amaria’s new supervisor, Caballero, was also involved in the termination.
Amaria claims that the termination was pretextual to mask a discriminatory or retaliatory motive for her exercise of right under the CFRA. In support, Amaria claims that she was meeting her sales goals and that Broneau did not account for her time off to care for her mother with respect to her failure to meet her Client Delight scores. We reject these assertions.
Amaria testified that she understood it was a job requirement for her to meet her Client Delight scores. Thus, her sales goals did not somehow excuse her failure to meet her Client Delight scores. Amaria responds that other employees were not terminated when they failed to meet Client Delight scores. Amaria refers to the deposition testimony of client managers, Maral Mavyan, Lelis Cruzata, and Jack Karadanian.
We have reviewed their testimony. None of these employees testified that they missed the mark with respect to Client Delight scores for four consecutive quarters.
Mavyan testified that he had at one time missed a goal in either investments, credits or deposits, but that he exceeded his goal in the other two categories. Cruzata testified that she had low Client Delight scores when she returned from a medical leave. She also testified that it took approximately six months (or two quarters) for her scores to go back up following the leave. Finally, Karadanian testified that he did not always meet his production number goals.
As for her time off, it is undisputed that three of the quarters in which Amaria had low Client Delight scores did not include the quarter during which she took off time to care for her mother. Thus, we reject Amaria’s suggestion that each quarter of low Client Delight scores was a result of taking time off to care for her mother.
The timing of Amaria’s termination does not show pretext. Amaria’s performance problems began 2003. Defendants did not terminate Amaria until almost eleven months after her mother’s heart attack.
As to caring for her father, in the Factual and Procedural Background, we have quoted from Amaria’s declaration concerning leave to care for her father. Her declaration shows that she did not actually request CFRA time off to care for her father in the fall of 2004. There is no evidence of a request for unpaid leave, and no evidence that she submitted any medical forms for leave, just a brief statement that she took off limited time and missed one meeting.
In conclusion, the trial court did not err by summarily adjudicating the third and fifth causes of action in favor of the Bank.
3. The Trial Court Did Not Err by Summarily Adjudicating the Fourth Cause of Action for Harassment
The trial court did not err by finding that plaintiff failed to raise a triable issue of material fact that defendants’ conduct constituted harassment.
In Reno, supra, 18 Cal.4th 640, the California Supreme Court explained what constitutes harassment under the FEHA. The court defined harassment, explaining that personnel decisions do not constitute harassment. (Id. at p. 646-647.) The court stated: “ ‘[H]arassment consists of a type of conduct not necessary for performance of a supervisory job. Instead, harassment consists of conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives. Harassment is not conduct of a type necessary for management of the employer’s business or performance of the supervisory employee’s job. [Citations.] [¶] . . . [¶] . . . Making a personnel decision is conduct of a type fundamentally different from the type of conduct that constitutes harassment. Harassment claims are based on a type of conduct that is avoidable and unnecessary to job performance. No supervisory employee needs to use slurs or derogatory drawings, to physically interfere with freedom of movement, to engage in unwanted sexual advances, etc., in order to carry out the legitimate objectives of personnel management. . . . [¶] We conclude, therefore, that the Legislature intended that commonly necessary personnel management actions such as hiring and firing, job or project assignments, office or work station assignments, promotion or demotion, performance evaluations, the provision of support, the assignment or nonassignment of supervisory functions, deciding who will and who will not attend meetings, deciding who will be laid off, and the like, do not come within the meaning of harassment. These are actions of a type necessary to carry out the duties of business and personnel management.’ ” (Id. at pp. 645-647.)
In opposition to defendants’ motion for summary judgment and on appeal, Amaria does not identify a single act which constitutes harassment under the foregoing Reno definition. Instead, she has identified her termination, Broneau’s involvement in the termination after Broneau was no longer Amaria’s supervisor, Amaria’s assignment to the West Los Angeles Hub, the refusal of Broneau to assign her to the Santa Monica hub, and the employment counseling sessions.
In her declaration in opposition to the motion for summary judgment, Amaria declared that after she had been working at the West Los Angeles hub for a few weeks, Broneau asked her when she might return to the Hollywood hub full time. Amaria responded that she could not and that she still needed intermittent time off. Amaria declared that Broneau angrily told her to find nurses to care for her mother. The trial court sustained defendants’ objections to these portions of Amaria’s declaration.
On appeal, Amaria contends the trial court abused its discretion with respect to its evidentiary rulings. We have no occasion to resolve this issue, because even if we consider these portions of Amaria’s declaration, we conclude that Amaria has not raised a triable issue of material fact that defendants illegally harassed her in violation of the FEHA for allegedly exercising rights under the CFRA.
Likewise, we have considered all portions of Amaria’s declaration which were stricken by the trial and which are quoted at pages 57 to 63 of plaintiff’s opening brief. Considering this information, we nevertheless conclude that Amaria has not raised a triable issue of material fact to show discrimination, harassment or retaliation.
The single statement that Amaria should find nurses to care for her mother does not constitute harassment. In Hope v. California Youth Authority (2005) 134 Cal.App.4th 577, 588 (Hope), the court explained: “ ‘[A]n employee claiming harassment based upon a hostile work environment must demonstrate that the conduct complained of was severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their [sexual orientation]. . . . The working environment must be evaluated in light of the totality of the circumstances: “[W]hether an environment is ‘hostile’ or ‘abusive’ can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” ’ [Citation.] [¶] ‘In determining what constitutes “sufficiently pervasive” harassment, the courts have held that acts of harassment cannot be occasional, isolated, sporadic, or trivial, rather the plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature.’ ”
Pursuant to the definition of harassment in the Hope case, Amaria failed to raise a triable issue of material fact that Broneau’s alleged comment about hiring nurses was sufficiently severe or pervasive to have altered Amaria’s working conditions or created an abusive working environment.
4. The Trial Court Did Not Err by Summarily Adjudicating in Favor of Bank Amaria’s Sixth Cause of Action for Breach of Implied Contract
Amaria asserts that she had an implied-in-fact contract with the Bank to be terminated only for good cause. Amaria asserts that the trial court erred by finding that her employment was at will. We reject Amaria’s assertions.
Labor Code section 2922 provides: “An employment, having no specified term, may be terminated at the will of either party on notice to the other. Employment for a specified term means an employment for a period greater than one month.”
In Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317 (Guz), the California Supreme Court addressed the issue of the circumstances in which the conduct of an employer and employee creates an implied-in-fact contract to terminate for good cause, which overcomes the statutory presumption of an at-will employment agreement. (Id. at p. 336-337.) The Guz court explained that a number of factors bear upon the existence and content of an implied-in-fact contract to terminate for cause, including “ ‘ “the personnel policies or practices of the employer, the employee’s longevity of service, actions or communications by the employer reflecting assurances of continued employment and the practices of the industry in which the employee is engaged.” ’ [Citation.]” (Ibid.)
The Guz court further explained: “Where there is no express agreement, the issue is whether other evidence of the parties’ conduct has a ‘tendency in reason’ [citation] to demonstrate the existence of an actual mutual understanding on particular terms and conditions of employment. If such evidence logically permits conflicting inferences, a question of fact is presented. [Citation.] But where the undisputed facts negate the existence or the breach of the contract claimed, summary judgment is proper.” (Guz, supra, 24 Cal.4th at p. 337.)
Significantly, the Guz court noted, however, that “most cases applying California law . . . have held that an at-will provision in an express written agreement, signed by the employee, cannot be overcome by proof of an implied contrary understanding.” (Guz, supra, 24 Cal.4th at p. 340, fn 10.)
More recently, in Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4h 384, the California Supreme Court noted that “a clear and unambiguous at-will provision in a written employment contract, signed by the employee, cannot be overcome by evidence of a prior or contemporaneous implied-in-fact contract requiring good cause for termination.” (Id. at p. 389; see also Starzynski v. Capital Public Radio, Inc. (2001) 88 Cal.App.4th 33, 38.)
In this case, in 1999, plaintiff signed the Bank’s Dual Employment Agreement, which expressly and unambiguously stated that Amaria’s employment was at will. Thus, the at-will provision in the Dual Employment Agreement cannot be overcome by evidence of a prior or contemporaneous implied contract to terminate only for cause.
Amaria responds, however, that she presented sufficient evidence to raise a triable issue of material fact that, following her execution of the Dual Employment Agreement in 1999, the parties impliedly contracted that she could only be terminated for cause. Specifically, Amaria asserts that her length of service coupled with Bank employees’ oral assurances and the Banks’ actual policies raised a triable issue of material fact as to the existence of an implied-in-fact contract to terminate only for good cause. Looking at the totality of circumstances in the light most favorable to Amaria, (Guz, supra, 24 Cal.4th at p. 337), we reject this assertion.
At the outset, it is undisputed that no one at the Bank promised that Amaria would be employed for any specific length of time or that she could only be terminated for good cause. Instead, Amaria relies upon the longevity of her service and the fact that she received positive performance evaluations and alleged praise for her service to the Bank. In Guz, the court rejected a similar argument, explaining: “Absent other evidence of the employer’s intent, longevity, raises, and promotions are their own rewards for the employee’s continuing valued service; they do not, in and of themselves, additionally constitute a contractual guarantee of future employment security. A rule granting such contract rights on the basis of successful longevity alone would discourage the retention and promotion of employees.” (Guz, supra, 24 Cal.4th at p. 342.)
Finally, Amaria asserts that the Bank’s actual unwritten practice was to terminate only for good cause. In support, Amaria asserts that her supervisors, Mahinfar and Broneau, confirmed that, in practice, the Bank terminated only for good cause. Amaria asserts that this alleged practice raised a triable issue of material fact that the parties entered into an implied-in-fact for cause contract.
We reject this assertion. The Guz court rejected a similar argument. There, the plaintiff asserted that the defendant had an unwritten policy of terminating only for good cause. As evidence of this policy, the plaintiff cited the deposition testimony of a company president named Johnstone, who stated that he understood that the defendant terminated people only for “ ‘good reason.’ ” (Guz, supra, 24 Cal.4th at p. 345.) The Supreme Court held this evidence was insufficient as a matter of law to conclude that the defendant had contracted away its right to discharge at will. The court held that there was no evidence that the defendant’s employees were aware of such an unwritten policy and that the alleged unwritten policy was inconsistent with the defendants’ written at-will policies. (Ibid.)
Likewise, in the present case, we conclude that the alleged unwritten policy of terminating only for good cause is insufficient to raise a triable issue of material fact as to whether the Bank contracted away its express right to discharge employees at will. There is no evidence that the Bank’s employees were aware of this alleged unwritten policy. In addition, and more importantly, the alleged unwritten policy of terminating only for good cause is directly inconsistent with the Bank’s at-will policies in its manuals and directly inconsistent with the at-will provisions in the Dual Employment Agreement, which Amaria executed in 1999.
In any event, the testimony of Mahinfar or Broneau is insufficient to support the assertion that the Bank had an unwritten policy of only terminating for good cause.
In conclusion, the trial court did not err by summarily adjudicating Amaria’s sixth cause of action for breach of implied contract.
DISPOSITION
The judgment is affirmed. Defendants are awarded costs on appeal.
We concur: KLEIN, P. J., CROSKEY, J.
In support of the assertion that Mahinfar testified that the Bank had an unwritten policy of terminating only for good cause, Amaria cites to pages 534-537 of the Appellant’s Appendix. There, Mahinfar testified that individuals have been fired for not performing their job well or for stealing from the bank. Mahinfar did not testify that the Bank has an unwritten policy of only terminating for good cause.
In addition, in support of the assertion that Broneau testified that the Bank had an unwritten policy of terminating only for good cause, Amaria cites to page 552 of the Appellant’s Appendix. There, Broneau explained that the Bank had an at-will employment policy. Broneau also testified that she had not witnessed an employee ever terminated without a reason, not that the Bank always had “good cause” every time it terminated an employee.