Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. Aurelio Munoz, Judge, Super. Ct. No. BC344560
Marvin E. Krakow for Plaintiff and Appellant.
Loeb & Loeb, Fred B. Griffin and Scott M. Lidman for Defendant and Respondent.
ASHMANN-GERST, J.
Plaintiff and appellant Michael Bellamy (Bellamy) challenges a trial court order granting summary judgment to defendant and respondent Technicolor Entertainment Services, Inc. (Technicolor).
We agree with the trial court that Bellamy failed to present a triable issue of fact. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Parties
Technicolor is a postproduction company that provides color correction as one of its services. Bellamy (born Oct. 1958) is a colorist. A colorist “corrects” the color in movie film. This job requires a combination of technical skills, a good eye, and creative ability. In fact, if proficient, colorists develop their own clients, who are comprised of cinematographers and directors of production. These colorists, after developing their own clients, then become in demand at facilities such as Technicolor because substantial business may result from their being hired. For all these reasons, colorists are highly compensated.
Richard Andrews (Andrews), the president of Technicolor, recruited Bellamy to work for Technicolor in 2002.
Bellamy’s Work at Technicolor in 2004
Bellamy began working full time in Technicolor’s Burbank facility, Technique, in or around April/May 2003. At that time, the other colorists employed at that facility were Stephen Nakamura (born Nov. 1967) and Trent Johnson (Johnson) (born Aug. 1959). Approximately two or three months after Bellamy began working at Technique, Technicolor hired Scott Gregory (Gregory) (born Aug. 1962) as a colorist. Subsequently, in 2004, Technicolor hired Jill Bogdanowicz (Bogdanowicz) (born June 1977) and Tim Peeler (Peeler) (born Feb. 1957) as colorists.
After being hired by Technicolor, Bellamy had no complaints about either the quality or type of work that was assigned to him when he was working at the facility in Glendale. However, approximately three months after he began working at the facility in Burbank, Bellamy felt that he was not being given enough work. Thus, in April 2004, he and Peeler met with Andrews. During that meeting, Bellamy informed Andrews that he was, at most, occupied only 3 percent of the time during any given week. According to Bellamy, Andrews was concerned, interested, and curious regarding the reason that Bellamy was not producing billable hours. During that meeting, however, Bellamy did not know why he was not being utilized nor did he discuss the particular reasons with Andrews. Andrews told Bellamy that he would look into the situation; however, Bellamy never asked Andrews what he had discovered nor did Andrews ever tell Bellamy anything in that regard.
Bellamy’s lack of work continued from April 2004 through the end of 2004. In fact, Bellamy estimated that he remained occupied working approximately only 3 percent of his time during that period.
One project that Bellamy did work on during December 2003/early 2004 was “Miracle on Ice,” a Disney film about the 1980 United States Olympic hockey team. Bellamy admitted that there had been problems with the project, and Bellamy believed that Disney was not “happy” with the result.
Al Cleland (Cleland) Comes to California
Before working in California, Cleland was working for Technicolor in New York. Prior to his transfer, Cleland terminated 57-year old John Dowdell, the oldest colorist in Technicolor’s New York facility. According to Andrews, Cleland came to Los Angeles to do the same thing he had done in New York.
In November or December 2004, Bellamy met Cleland, the new senior vice-president and general manager of Technique. Bellamy had been told that Cleland was brought in to help straighten Technique out as it had been operating at a loss since its inception.
Bellamy and Cleland went to lunch after Cleland began working at Technique. During the lunch, Bellamy told Cleland about his lack of work, at which time Cleland agreed that it was wasteful for Bellamy to be sitting around and doing nothing. Cleland told Bellamy that he would look into the matter and that he was looking into ways to make the company more efficient and more profitable. Bellamy left that lunch feeling that Cleland wanted Bellamy to be employed and busy, but also that Cleland did not want Bellamy’s salary to be paid without Bellamy billing any hours. After the lunch with Cleland and continuing through January 25, 2005, the only discussions that Bellamy had with anyone else regarding his lack of work was with coworkers, and only then about the lunch with Cleland at which the topic was discussed.
Bellamy believes that the reason he was not given work during his tenure at Technique was because the company wanted to keep Johnson and Bogdanowicz busy so that Bellamy would appear not to be busy.
Bellamy Never Applied for Leave under the California Family Rights Act (CFRA)
According to Bellamy, during the year leading up to his termination, he suffered from severe migraine headaches. This condition required him to take time off from work, more often than once a month, to go to his doctor for treatment. Bellamy reported his condition to his superiors, and his suffering was purportedly obvious to those who saw him. Tim Belcher, Bellamy’s supervisor, approved Bellamy’s medical absences at least once a month in 2004.
That being said, there is no record of Bellamy ever applying for a medical leave of absence of any type while employed by Technicolor, including, but not limited to, a medical leave of absence pursuant to CFRA.
Bellamy is Laid Off
One of the reasons that Cleland was appointed to the position of general manager of Technique was to improve its profitability. As part of so doing, Cleland determined that a reorganization of Technique was required to reduce labor costs in positions in which it appeared that Technique was overstaffed.
Thus, in November and December 2004, Cleland met with many, if not all, of the Technique employees and reviewed their job duties and responsibilities with them. He also reviewed financial and other data concerning Technique.
Based upon his interviews with Technique employees and his review of financial and other data, Cleland decided that, given the salaries paid to colorists and the resources Technique had available for its use, that Technique had too many colorists and that one should be laid off. Accordingly, Cleland, with the input and approval of Andrews, decided that Bellamy should be the colorist to be laid off. This decision was based upon the fact that Bellamy was the least productive colorist.
On January 25, 2005, Technicolor laid Bellamy off. He was not replaced at that time, and has not been replaced since. At the time he was laid off, Bellamy was earning approximately $332,500 a year.
At the same time, none of the other colorists was laid off. Three of the colorists who retained their positions were all over the age of 40. Two of them were under the age of 40.
Procedural History
On December 14, 2005, Bellamy initiated this action against Technicolor, alleging four causes of action in his complaint: age discrimination, disability discrimination, violation of the CFRA, and wrongful termination in violation of public policy. Technicolor answered on February 14, 2006.
Following the completion of discovery, Technicolor moved for summary judgment. With respect to Bellamy’s age discrimination claim, it argued that it had a legitimate nondiscriminatory reason to terminate Bellamy, namely his lack of productivity. Moreover, Bellamy could not produce any evidence that this reason was pretextual. As for Bellamy’s perceived disability discrimination cause of action, Technicolor asserted that Bellamy lacked evidence that Technicolor regarded him as disabled, and that, in any event, Bellamy could not demonstrate that he was satisfactorily performing his job. Furthermore, Bellamy’s third cause of action for retaliation under the CFRA failed because Bellamy offered no evidence that he took CFRA leave. Finally, because his wrongful termination claim depended upon the viability of his other causes of action, this cause of action failed for the reasons previously set forth.
Bellamy opposed Technicolor’s motion, asserting that a triable issue of fact existed. Specifically, Bellamy directed the trial court to Andrews’s statement that Cleland was brought to Los Angeles to do what he had done in New York, which, according to Bellamy, was to terminate the older employees. Bellamy claimed that Technicolor engaged in a pattern of discriminatory conduct, by diverting work from him and giving it to younger employees and then by claiming that his lack of productivity was the impetus for his termination. He also argued that his supervisors were aware of his migraine headaches and had approved his medical leaves. Finally, Bellamy pointed to statistical evidence of discrimination.
The trial court entertained oral argument, and then granted Technicolor’s motion, finding no triable issue of fact as to any cause of action alleged by Bellamy. In so doing, the trial court noted that “the brief filed by [Bellamy] violated the California Rules of Court.” It also sustained several of Technicolor’s objections to Bellamy’s evidence.
Judgment was entered, and Bellamy’s timely appeal followed.
DISCUSSION
I. Standard of Review
“A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) We review the trial court’s decision de novo.” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.)
II. The Trial Court Properly Granted Technicolor’s Motion for Summary Judgment
A. Bellamy’s first cause of action for age discrimination
Bellamy’s first cause of action is for wrongful termination in violation of the California Fair Employment Housing Act (FEHA). (Gov. Code, § 12940.) “Because of the similarity between state and federal employment discrimination laws, California courts look to pertinent federal precedent when applying our own statutes.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354.) Consequently, “California has adopted the three-stage burden-shifting test established by the United States Supreme Court for trying claims of discrimination, including age discrimination, based on a theory of disparate treatment.” (Ibid.; see also Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 202–203.)
At trial, the plaintiff has the initial burden of establishing a prima facie case of discrimination. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 354.) “Generally, the plaintiff must provide evidence that (1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.” (Id. at p. 355.) Once the plaintiff sustains his initial burden, a rebuttable presumption of discrimination arises. The burden then shifts to the employer “to rebut the presumption by producing admissible evidence sufficient to ‘raise[] a genuine issue of fact’ and to ‘justify a judgment for the [employer],’ that its action was taken for a legitimate, nondiscriminatory reason. [Citations.]” (Id. at pp. 355–356.) The presumption of discrimination disappears once the employer sustains this burden. At that point, the plaintiff has “the opportunity to attack the employer’s proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive.” (Id. at p. 356.) “The ultimate burden of persuasion on the issue of actual discrimination remains with the plaintiff.” (Ibid.)
In the context of a summary judgment motion, however, when the employer has presented competent evidence of nondiscriminatory reasons for its employment decision, the burden shifts to the employee “to rebut this facially dispositive showing by pointing to evidence which nonetheless raises a rational inference that intentional discrimination occurred.” (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 357.) Stated otherwise, in order to avoid summary judgment, the employee must present specific and substantial evidence of pretext. (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 807.)
Here, the trial court correctly determined that Technicolor met its initial burden of showing that Bellamy could not establish all of the elements of his first cause of action for age discrimination. Specifically, it is undisputed that Bellamy was not performing satisfactorily at the time of his termination. As he admitted, including to Cleland and Andrews, he was only 3 percent occupied during any given week. His lack of productivity, coupled with Technicolor’s desire and need to reorganize to improve its profitability (as set forth below), was grounds for his termination.
Even if Bellamy had presented evidence to sustain his claim for age discrimination, Technicolor presented undisputed evidence establishing a nondiscriminatory reason for its challenged employment decisions. Technicolor’s evidence demonstrated that Cleland was appointed to improve Technique’s profitability. Bellamy was terminated to achieve that goal. After all, at the time of his termination, he had been earning over $300,000 a year, yet was only occupied about 3 percent of the time.
In challenging this evidence, Bellamy places much emphasis upon Andrews’s statement that he brought Cleland to Los Angeles to do what he had done in New York. According to Bellamy, the only thing Cleland did in New York was terminate the oldest qualified colorist. In light of the undisputed evidence that Cleland was brought to Los Angeles to improve Technicolor’s profitability, Andrews’s isolated remark that Cleland was brought to the California office to do what he did in New York also does not demonstrate that age discrimination was the true motive for terminating Bellamy.
Even if we view Andrews’s isolated comment in the most negative light, it is insufficient to raise a reasonable inference that Technicolor’s need to improve profitability was a pretext for terminating Bellamy because of his age. Andrews’s comment is nothing more than a “stray remark,” which is insufficient to establish a triable issue of material fact regarding discriminatory motive. (Horn v. Cushman & Wakefield Western, Inc., supra, 72 Cal.App.4th at p. 810; Gibbs v. Consolidated Services (2003) 111 Cal.App.4th 794, 801.)
To refute Technicolor’s assertion that Bellamy was terminated because he was the least productive colorist, Bellamy claims that Technicolor engaged in a pattern to divert work from him so that his productivity would be low so that there would be a purported legitimate basis for his termination. We are not persuaded. Bellamy offers no evidence that Technicolor diverted work from him because of his age. Rather, the evidence indicates that (1) Technicolor did not have ample work to sustain highly paid salaries of numerous colorists, and (2) the one project for which there is evidence indicates that Disney (the client) was unhappy with the work.
In urging us to reverse the trial court judgment, Bellamy argues that statistical evidence supports his assertion of age discrimination. He is mistaken. Only one colorist—Bellamy—was terminated. This one termination has no statistical significance. (Gibbs v. Consolidated Services, supra, 111 Cal.App.4th at p. 801.) Moreover, Bellamy’s characterization of the statistics is incorrect; it is undisputed that at least one colorist older than Bellamy—Peeler—remained. And, Bellamy was not “substantially older” than all of the colorists who were not terminated. Not only is Peeler older than Bellamy, but Johnson is less than a year younger and Gregory is only approximately four years younger than Bellamy.
And, at least one of the persons responsible for the decision to terminate Bellamy’s employment, Andrews, was involved in his recruitment and hiring. Where the same person both hires and fires the plaintiff, a strong inference arises that there was no discriminatory intent. (Horn v. Cushman & Wakefield Western, Inc., supra, 72 Cal.App.4th at p. 809.)
With regard to Bellamy’s subjective claim that he was more qualified than the colorists who were not terminated, Bellamy presented no objective evidence to support this claim. In any event, his subjective belief was not enough. “[A]n employee’s subjective personal judgments of his or her competence alone do not raise a genuine issue of material fact.” (Horn v. Cushman & Wakefield Western, Inc., supra, 72 Cal.App.4th at p. 816.)
In light of the foregoing, we conclude that Bellamy failed to raise a triable issue of material fact with respect to his first cause of action for age discrimination. The trial court therefore properly granted summary judgment as to that cause of action.
B. Bellamy’s second cause of action for perceived disability discrimination
FEHA protects persons from workplace discrimination as the result of a disability. (Gov. Code, § 12940.) Under FEHA, “disability” is broadly construed to protect employees and applicants from discrimination due to “an actual or perceived physical or mental impairment that is disabling, potentially disabling, or perceived as disabling or potentially disabling.” (Gov. Code, § 12926.1, subd. (b).)
To establish a prima facie case of disability discrimination under Government Code section 12940, the plaintiff is required to establish that: (1) he had an actual physical disability or was regarded by his employer as having a disability; (2) he could perform the essential duties of his job; and (3) he was subjected to an adverse employment action because of his disability or perceived disability. (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 255.)
Here, there is no evidence whatsoever that Technicolor regarded Bellamy as having a disability. While he may have taken some time off of work because of migraine headaches, that does not compel the conclusion that Technicolor regarded Bellamy as disabled.
C. Bellamy’s third cause of action for termination in retaliation for exercising his right to take CFRA leave
Dudley v. Department of Transportation (2001) 90 Cal.App.4th 255, 261 (Dudley), addresses the elements of a cause of action for retaliation in violation of the CFRA. Dudley, which was guided by the federal law counterpart, sets forth the elements as follows: “(1) the defendant was an employer covered by CFRA; (2) the plaintiff was an employee eligible to take CFRA leave; (3) the plaintiff exercised [his] right to take leave for a qualifying CFRA purpose; and (4) the plaintiff suffered an adverse employment action, such as termination, fine, or suspension, because of [his] exercise of [his] right to CFRA leave.” (Dudley, supra, at p. 261; accord, Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz) [elements of prima facie of retaliation under FEHA].) Once an employee “establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. [Citation.] If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation ‘“‘drops out of the picture,’”’ and the burden shifts back to the employee to prove intentional retaliation. [Citation.]” (Yanowitz, supra, at p. 1042.)
Here, Technicolor was entitled to summary judgment because Bellamy failed to offer any evidence that he exercised his right to take leave for a qualifying CFRA purpose. Absent this essential element of his cause of action, Bellamy’s claim fails as a matter of law.
Moreover, as noted above, Technicolor offered undisputed evidence of a legitimate, nonretaliatory reason for Bellamy’s termination—its need to improve profitability by terminating employees who were not producing adequate billable hours. Because Bellamy was drawing a high salary, yet was only occupied about 3 percent of the time, Technicolor terminated his employment.
Accordingly, the trial court’s order granting summary judgment of the third cause of action is proper.
D. Bellamy’s fourth cause of action for wrongful termination in violation of public policy
Bellamy’s fourth cause of action for wrongful termination in violation of public policy, like his first through third causes of action, is premised upon claim of age and disability discrimination. Our conclusion that the trial court properly granted summary judgment as to the first three causes of action compels the same conclusion with respect to the fourth cause of action.
DISPOSITION
The judgment of the trial court is affirmed. Technicolor is entitled to costs on appeal.
We concur: BOREN, P. J., DOI TODD, J.