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Burke v. JP Morgan Chase & Co.

California Court of Appeals, First District, Second Division
Mar 19, 2008
No. A113524 (Cal. Ct. App. Mar. 19, 2008)

Opinion


ELSIE BURKE, Plaintiff and Appellant, v. JP MORGAN CHASE & COMPANY, Defendant and Respondent. A113524 California Court of Appeal, First District, Second Division March 19, 2008

NOT TO BE PUBLISHED

Contra Costa County Super. Ct. No. C04-01744

Kline, P.J.

Elsie Burke (plaintiff) appeals the trial court’s grant of summary judgment in favor of JP Morgan Chase & Company (defendant) in this employment discrimination action. On appeal, plaintiff contends the trial court erred in (1) sustaining defendant’s objection to the declaration, and attached transcribed interview, of a third party witness on the grounds of hearsay and lack of personal knowledge; (2) granting summary adjudication on plaintiff’s causes of action for age, race, and national origin discrimination; (3) granting summary adjudication on plaintiff’s retaliation claim; and (4) granting summary adjudication on plaintiff’s cause of action for intentional infliction of emotional distress. We shall affirm the judgment.

PROCEDURAL BACKGROUND

Plaintiff filed this action against defendant and her former supervisor, Sharlee Stemmons, on September 24, 2004. The complaint asserted four causes of action: for age discrimination, race discrimination, national origin discrimination, and intentional infliction of emotional distress.

Stemmons was subsequently dismissed from the action.

On January 30, 2006, the trial court granted defendant’s motion for summary judgment and, on February 17, 2006, entered a judgment by court order and order granting summary judgment.

Plaintiff filed a notice of appeal on March 21, 2006.

FACTUAL BACKGROUND

Plaintiff was 59 years old when she filed this action. She is of Filipino descent.

Plaintiff received a B.S. degree in architecture in the Philippines before immigrating to the United States in 1968. She continued her education in real estate and mortgage lending at Cal State Hayward and obtained her broker’s license. She worked at Bechtel Corporation for 16 years prior to working for defendant.

Plaintiff has been employed by defendant, in its northwest regional office in San Ramon, since 1998, but has been on a medical leave of absence since October 2003. From 1998 through 2002, plaintiff worked for defendant as a loan document drawer in the loan document department. In this position, she was responsible for preparing the final mortgage documents to send to borrowers for their signature. During her employment as a loan document drawer, plaintiff was repeatedly advised and counseled about performance problems. For example, in a performance review in May 1999, she was rated a “4” (“Needs Improvement”) in the areas of adaptability, interpersonal skills, respect for each other, and teamwork. In May 2000, plaintiff received a written warning regarding excessive errors on documents, excessive personal phone calls, refusal to take instructions from her supervisor, her unwillingness to accept constructive criticism in a nondefensive manner, and excessive unscheduled absences. In 2000 and 2001, plaintiff received verbal counseling and written warnings on several occasions regarding, inter alia, excessive unscheduled absences, excessive errors in her work, low productivity, an unprofessional attitude toward coworkers, and an unwillingness to accept constructive criticism from her supervisors.

In a February 2002 performance review, plaintiff was rated a “5” (“Unacceptable”) in the area of teamwork, and was rated a “4” (“Needs Improvement”) in the areas of quality, respect for each other, initiative, and professionalism. In September 2002, plaintiff received a written warning that stated: “Elsie has been counseled on two previous occasions about the errors that she makes in her work. Despite this counseling, Elsie continues to make errors in her daily work. These errors are preventing Elsie from meeting her performance goals.” In September 2002, plaintiff was placed on a two-month restriction and was assigned to the registration department, where errors create less risk of harm to the company because they can be found early in the process by employees, rather than at the end of the process by brokers or borrowers.

In January 2003, Sharlee Stemmons, who was plaintiff’s supervisor from September 2002 to September 2003, assigned plaintiff to the position of junior processing assistant on the out-of-state loan processing assistant team, in response to plaintiff’s request to “grow into” a processing assistant position. In January 2003, plaintiff expressed to Stemmons an interest in becoming a processing assistant. Stemmons responded that plaintiff would need to remain in her current position for at least nine months before she would be considered for a processing assistant position.

In February and March 2003, there were constant problems with plaintiff’s unprofessional behavior towards members of the team, as well as complaints that plaintiff was not completing her assigned work in a timely manner and was making incorrect notations in the computer database. After multiple counseling sessions, when plaintiff’s performance did not improve, Stemmons assigned plaintiff to the California processing assistant team. However, plaintiff continued to be unable to perform her job adequately and, when Stemmons met with her, plaintiff was argumentative and refused to take any direction from Stemmons.

In March 2003, when a processing assistant position became available, Stemmons did not consider plaintiff for the position because she lacked the necessary qualifications, and also because of her “demonstrated poor performance and disruptive and unprofessional interactions with her co-workers and supervisors.” Instead, Ronnie Tao, another employee, was promoted to the position.

In April 2003, Stemmons moved plaintiff to an individual data processing position as a clerk in the HMDA (Home Mortgage Disclosure Act) or shipping department. This position focused on closing or removing canceled files according to strict federal guidelines, and required no coworker interaction. Plaintiff made numerous errors in this position, including closing files that were still active. She was counseled on several occasions regarding the errors, her defensive attitude, and for fighting with a coworker.

In August 2003, plaintiff went on a restricted work regimen due to a diagnosis of carpal tunnel syndrome, and her workload was reduced by one-half.

In September 2003, plaintiff received a final written warning, which stated that, despite counseling, she continued to make errors in her daily work and was unable to get along with her coworkers or abide by “Chase Values.” Plaintiff took a medical leave of absence in October 2003 and has not returned to work.

DISCUSSION

I. Standard for Summary Judgment and Standard of Review

A motion for summary judgment “shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc. § 437c, subd. (c).) A defendant moving for summary judgment has the initial burden of showing either that one or more elements of the cause of action cannot be established or that there is a complete defense. (§ 437c, subd. (p)(2).) If that initial burden is met, the burden shifts to the plaintiff to show the existence of a triable issue of fact with respect to that cause of action or defense. (§ 437c, subd. (p)(2); see Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-853.)

All further statutory references are to the Code of Civil Procedure unless otherwise indicated.

We review a summary judgment ruling de novo to determine whether there is a triable issue as to any material fact and whether the moving party is entitled to judgment as a matter of law. (Marie Y. v. General Star Indemnity Co. (2003) 110 Cal.App.4th 928, 949.)

II. The Wendy Helms Declaration

Plaintiff contends the trial court erred when it sustained defendant’s objection to admission of parts of a transcribed interview attached as exhibits to the declaration of a third party witness, Wendy Helms, on the grounds of hearsay and lack of personal knowledge.

A. Trial Court Background

On November 22, 2005, in support of her opposition to defendant’s summary judgment motion, plaintiff filed the “Declaration of Wendy Williams Helms.” This was the only new evidence plaintiff submitted in support of her opposition to defendant’s summary judgment motion.

Helms worked for defendant as operations manager for the northwest region of California for a total of approximately 16 months, between July 2002 and October 2003. In the declaration, Helms stated that on November 8 and 11, 2005, she appeared as a witness at a reporting service in Concord, California, that her responses to questions asked of her then were true and correct, and that copies of pages from the transcripts of the two interviews were attached to the declaration as exhibits A and B. Helms then signed the declaration, after declaring “under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this Declaration was executed on November 18, 2005 at Walnut Creek, California.” The exhibits consisted of selected pages from the interviews, as well as copies of documents. Following the transcribed pages was a document, signed by Helms and dated November 18, 2005, in which Helms declared “under penalty of perjury that the foregoing testimony is true and correct.” The interviews, which took place without notice to defendant and without any indication that Helms was under oath, consisted of plaintiff’s attorney’s questions and Helms’s responses.

The trial court sustained defendant’s objection to the declaration in its entirety, on the grounds of hearsay and lack of personal knowledge.

B. Legal Analysis

Section 437c, subdivision (b)(2), provides that any opposition to a motion for summary judgment, “where appropriate, shall consist of affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.” Section 437c, subdivision (d), provides in relevant part: “Supporting and opposing affidavits or declarations shall be made by any person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavits or declarations.”

Section 2015.5 requires that unsworn declarations include a recitation “that it is certified or declared by him or her to be true under penalty of perjury, is subscribed by him or her, and . . ., if executed within this state, states the date and place of execution . . . .”

Here, plaintiff has attempted to sidestep the hearsay problem of the Helms interviews by attaching the partial interview transcripts as exhibits to a declaration and by stating under penalty of perjury, after the fact, that her answers during the interviews were true and correct.

Defendant cites Stockinger v. Feather River Community College (2003) 111 Cal.App.4th 1014 (Stockinger), in which the trial court excluded as hearsay transcripts of telephone conversations between the plaintiff’s investigator and third-party witnesses, “during which the witnesses verbally declared their statements were true under penalty of perjury, and which plaintiff’s investigator authenticated via her own declaration attesting the transcripts were true reproductions of her conversations.” (Id. at p. 1025.) The appellate court held that the transcripts could not qualify as declarations, first, “because they contained no statement that the information contained therein was based upon personal knowledge.” (Id. at pp. 1025-1026, citing § 437c, subd. (d).) In addition, there was nothing “ ‘subscribed by’ ” the witnesses, as required by section 2015.5. (Stockinger, at p. 1026.) Finally, the transcripts were inadmissible hearsay evidence, that is, “ ‘evidence of a statement that was made other than by a witness testifying at the hearing and that is offered to prove the truth of the matter stated.’ (Evid. Code, § 1200, subd. (a).)” (Stockinger, at pp. 1026-1027.) That the investigator authenticated the transcripts did not overcome the hearsay rule since “authentication of a writing is independent of the question of whether the content of the writing is inadmissible as hearsay. [Citation.]” (Stockinger, at pp. 1027-1028; cf. Gatton v. A.P. Green Services, Inc. (1998) 64 Cal.App.4th 688, 693, 695 [in which a panel of this Division found that deposition testimony from another action—which plaintiffs argued should be treated as a declaration—was inadmissible in opposition to summary judgment because, inter alia, “[a] deposition from another case differs greatly from a declaration from the same witness saying that, if called to trial in the current case, the witness would testify in a particular manner on specified subjects”]; People v. Sundlee (1977) 70 Cal.App.3d 477, 482-483 [appellate court held that recording and transcript of radio conversations between members of a surveillance team were improperly admitted at trial because members of team were not under oath or subject to cross-examination, explaining that “[t]he recording could not make their inadmissible statements admissible”].)

These cases show that a party may not selectively introduce otherwise inadmissible material by way of a declaration as a means of defeating summary judgment. As one commentator has stated, “The ability to use declarations is a great convenience, but the trade-off is that strict compliance with the statute [(§ 2015.5)] is required and one cannot invent procedures which seem similar and call the result a ‘declaration.’ ” (Younger on Cal. Motions (2004 ed.) § 2:34, pp. 29-30.) Here, Helms’s declaration may itself have technically satisfied the requirements of section 2015.5. However, there is no showing that Helms was under oath when she answered the questions during the interview. Hence, adding the declaration could not serve to magically transform the inadmissible hearsay contained in the partial transcript of unsworn interviews with a third-party witness into admissible evidence. (Cf. Stockinger, supra, 111 Cal.App.4th at pp. 1027-1028; Gatton v. A.P. Green Services, Inc. supra, 64 Cal.App.4th at pp. 693, 695; People v. Sundlee, supra, 70 Cal.App.3d at p. 483.)

Plaintiff cites Kulshrestha .v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 612, in which the California Supreme Court explained that “courts do not find compliance with section 2015.5 to be both substantial and sufficient unless all statutory conditions appear on the face of the declaration in some form.” We do not find persuasive plaintiff’s assertion that because her declaration satisfied the statutory conditions of section 2015.5, the interview transcript was admissible. Again, using the correct language in a declaration does not transform inadmissible hearsay in an exhibit into admissible evidence.

In addition, the declaration and exhibits did not satisfy the personal knowledge requirement of section 437c, subdivision (d). (See Stockinger, supra, 111 Cal.App.4th at pp. 1025-1026; accord, Witchell v. DeKorne (1986) 179 Cal.App.3d 965, 975.) Here, not only did Helms’s declaration fail to aver that the information contained in the interview transcripts was based on personal knowledge, but most of Helms’s interview responses fail to demonstrate, among other things, that they were in fact based on her personal knowledge. (See, e.g., Snider v. Snider (1962) 200 Cal.App.2d 741, 753-754 [form allegation in declaration that facts are stated within personal knowledge of affiant is insufficient to show competency without evidentiary facts showing such personal knowledge]; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2007) ¶¶ 10:109-10:112, 10:119 (Rev. #1 2007), pp. 10-43 to 10-44, 10-46 [same].) Thus, as we shall discuss in part III., post, of this opinion, even if we did not find the Helms interview transcripts inadmissible in their entirety for the reasons previously stated, we nonetheless would find that the majority of the responses given were inadmissible in that they do not contain evidentiary facts based on personal knowledge but, instead, consist of hearsay, opinions, conclusions, and speculation. (See, e.g., Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1240; Hayman v. Block (1986) 176 Cal.App.3d 629, 638-639.)

III. Age, Race, and National Origin Discrimination

Plaintiff contends the trial court erred when it granted summary adjudication in favor of defendant on her causes of action for age, race, and national origin discrimination.

In deciding claims of discrimination, we utilize the three-part test developed in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 (McDonnell Douglas). Under the McDonnell Douglas test: “ ‘(1) The complainant must establish a prima facie case of discrimination; (2) the employer must offer a legitimate reason for his actions; (3) the complainant must prove that this reason was a pretext to mask an illegal motive.’ ” (Clark v. Claremont University Center (1992) 6 Cal.App.4th 639, 662; accord, St. Mary’s Honor Center v. Hicks (1993) 509 U.S. 502, 506-507.) “By applying McDonnell Douglas’s shifting burdens of production in the context of a motion for summary judgment, ‘the judge [will] determine whether the litigants have created an issue of fact to be decided by the jury.’ (Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248, 254, fn. 8.)” (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 806.)

Here, the trial court concluded, in granting summary adjudication as to the three discrimination causes of action, that “defendant, JP Morgan Chase, cited evidence showing it had legitimate, non-discriminatory reasons for failing to promote the plaintiff to the position of processing assistant.”

A. Prima Facie Case

To establish a prima facie case of discrimination, plaintiff had to show that (1) she is a member of a protected class, (2) she was qualified for the position to which she wished to be promoted, (3) she was denied a promotion to that position, and (4) the job went to someone outside the protected class. (See St. Mary’s Honor Center v. Hicks, supra, 509 U.S. at p. 506, citing McDonnell Douglas, supra, 411 U.S. at p. 802; Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 149.) Only if a plaintiff produces sufficient evidence to establish a prima facie case does the burden shift to the employer to present evidence showing it had a legitimate, nondiscriminatory reason for the employment action. (St. Mary’s Honor Center v. Hicks, at pp. 506-507.)

Here, defendant argues that plaintiff did not even establish a prima facie case of discrimination because she failed to show she was qualified for the position to which she wished to be promoted. (See St. Mary’s Honor Center v. Hicks, supra, 509 U.S. at p. 506.) However, we will give plaintiff the benefit of the doubt and assume, solely for purposes of satisfying her initial burden, that she made a prima facie showing that she was at least minimally qualified for the processing assistant position.

B. Defendant’s Legitimate, Nondiscriminatory Reasons

In support of its summary judgment motion, defendant produced evidence to satisfy its burden of showing that it had a legitimate, nondiscriminatory reason for failing to promote plaintiff. (See St. Mary’s Honor Center v. Hicks, supra, 509 U.S. at pp. 506-507.) Specifically, defendant submitted undisputed evidence showing that plaintiff was not qualified for the processing assistant position, based on her prior job performance. This evidence included documentation of numerous instances of verbal counseling and written warnings regarding, inter alia, excessive errors in work product, failure to complete work in a timely manner, low productivity, unscheduled absences, disruptive behavior, and unprofessional behavior towards coworkers and supervisors during the period of January 2000 to September 2003. Several of these warnings were given after plaintiff was assigned, at her request, to the position of junior processing assistant in January 2003, and several were given after she was assigned to the HMDA desk in the shipping department in April 2003. Notably, Wendy Helms verbally counseled plaintiff at least three times during August 2002 regarding multiple errors in plaintiff’s work and Helms signed off on a written warning to plaintiff regarding performance errors in September 2002; the warning stated that plaintiff “must exhibit immediate and sustained improvement or further disciplinary actions, up to and including termination, will be taken.”

The evidence also included documentation of plaintiff’s performance reviews, in which she received numerous ratings of “needs improvement” and a rating of “unacceptable” on teamwork.

In addition to documentary evidence regarding plaintiff’s performance problems while she was a junior processing assistant, defendant also submitted evidence, in the form of supervisor Sharlee Stemmons’s declaration, that “[i]n February and March 2003, our Processing Assistant Team experienced constant problems with Ms. Burke’s unprofessional behavior towards multiple members of the team. I received complaints from the Processing Assistants that Ms. Burke was not completing her assigned work in a timely manner and made incorrect notations in the computer database that confused the Processing Assistants or delayed their work. On numerous occasions, I verbally counseled Ms. Burke regarding specific conflicts with her Processing Assistants. Other Processing Assistants did not want to work with her. I verbally counseled Ms. Burke multiple times regarding her mistakes and defensive or argumentative behavior toward her co-workers; however, despite these discussions, she continued to make errors and behave in a rude and disruptive manner.”

Regarding the failure to promote plaintiff to the processing assistant position in March 2003, Stemmons declared that she did not promote plaintiff to that position “because she lacked the required qualifications and also because of her demonstrated poor performance and disruptive and unprofessional interactions with her co-workers and supervisors.” Similarly, Joanne Fabiano, regional manager for defendant, declared that “the ultimate decision not to promote Ms. Burke to the P.A. [processing assistant] position was based exclusively on the observations of the entire management team—that based on Ms. Burke’s five year history of performance in less demanding positions, she was simply not qualified to be promoted to a P.A. position at that time.”

Regarding plaintiff’s move in April 2003 to a data processing position in the shipping department that required no coworker interaction, Stemmons declared that, “[b]ecause Ms. Burke’s errors caused financial loss to the company and she refused to take any input or correction from me, I informed her that I could no longer give her the opportunity to support a Team as a Junior Processing Assistant and would move her to another position.”

In light of the considerable amount of evidence of plaintiff’s ongoing and serious performance and attitude problems in less demanding positions with defendant, we conclude that defendant has satisfied its burden of demonstrating a legitimate, nondiscriminatory reason for failing to promote plaintiff to the position of processing assistant.

C. Pretext

Once defendant satisfied its burden of showing that it had a nondiscriminatory reason for failing to promote plaintiff—i.e., that, based on her prior job performance, she was not qualified for the processing assistant position—the burden shifted to plaintiff to raise a triable issue of fact as to whether this reason was pretextual. This is because, once an employer fulfills its burden of production by offering a legitimate, nondiscriminatory reason for its employment decision, the McDonnell Douglas framework “simply drops out of the picture.” (See St. Mary’s Honor Center v. Hicks, supra, 509 U.S. at pp. 510-511.)

1. The Helms Interviews

In support of her opposition to the summary judgment motion, plaintiff submitted the declaration of Wendy Helms, with the attached interview transcripts. In the interviews, Helms stated that she was hired by defendant as operations manager for the northwest region of California on July 1, 2002. She took a maternity leave in late May 2003, and left defendant’s employ at the end of October 2003. She was initially plaintiff’s supervisor, and told plaintiff she would not hold plaintiff’s past job performance against her because she believed the comments in her personnel file were petty and lacking in credibility. From what Helms could remember, the comments did not involve plaintiff’s work performance, but rather her inability to get along with other employees. Helms believed plaintiff was overqualified for the position of document drawer, in light of her educational background. Helms also believed that Sharlee Stemmons’s complaints about plaintiff’s job performance were based on the fact that clients liked plaintiff better than her. Helms also believed Stemmons was deflecting possible criticisms of her own performance onto plaintiff. Helms felt that Joanne Fabiano was not a fair manager because her decisions were based more on emotions than on facts and she would take the side of whoever brought their opinion to her first. With respect to plaintiff, Fabiano adopted Stemmons’s views.

In September 2002, Helms signed off on a written warning to plaintiff, based on documentation showing that plaintiff was making continuous errors in her work. Helms agreed plaintiff should be issued the warning and thought it would be a good opportunity to put her in a position where she could get some formalized training. Once assigned to the registration department, Helms was no longer plaintiff’s direct supervisor, but she claimed to know that plaintiff did a “commendable” job. Helms acknowledged that she had never witnessed any of plaintiff’s outbursts with other employees or supervisors, stating, “people will do a lot of different things without me seeing everything. Eventually I had 160 employees at one point . . ., so I would not be able to see all of the actions that were actually taking place.”

Helms did not believe that plaintiff was given fair consideration for the processing assistant position that came open in March 2003. She felt that Fabiano posted the position, as was her practice, with a pre-selected candidate in mind. She believed plaintiff was qualified for that position, based on her education and past experience. She was vastly more qualified for the position than Ronnie Tao, a younger employee who was hired; she had an equivalent educational background, but had more work experience, and also had her broker’s license. Helms was bypassed in terms of making the promotion decision by Fabiano and Stemmons, who was Fabiano’s agent. Helms believed, generally, that she was not given full autonomy in recruiting and hiring while she worked for defendant and that Fabiano had taken away her authority to recruit and hire.

Helms further stated, regarding why Ronnie Tao was chosen for the processing assistant position, “What Ronnie exemplated [sic]—or what they got from Ronnie is that he was very young, and he was very sweet and always can I, you know, do anything? Very vocal about helping out. And they felt that was an upbeat positive attitude, which they didn’t feel that Elsie exemplified.” When plaintiff’s attorney asked if Helms felt that Tao’s age was a factor in the promotion decision, given that she had said he was very young, Helms responded, “Young, upbeat, vibrant. Again, not speaking from them, I would take it as such.”

Helms also believed plaintiff was more qualified than four other younger employees who were promoted to processing assistant positions later in 2003.

With respect to plaintiff’s being assigned to sit at a small portable desk in 2003 when she worked in the shipping department, in Helms’s opinion, plaintiff was put at that desk, “not necessarily based on age or race, but based on the fact that almost as if it was a child that had done wrong that you wanted to kind of put there.”

Plaintiff argues that Helms’s interview responses provide evidence of pretext on defendant’s part sufficient to preclude the grant of summary judgment. According to plaintiff, the statement by Helms that Tao was promoted because he was young, upbeat, and vibrant, constitutes direct evidence of discrimination. However, Helms’s response to counsel’s question whether she felt that age was a factor in his promotion was, “not speaking from them, I would take it as such.” This is expressly Helms’s subjective opinion, without any foundation, based on speculation, rather than on something anyone else said. As such, it does not provide any evidence, direct or otherwise, of age discrimination. As we observed in Horn v. Cushman & Wakefield Western, Inc., supra, 72 Cal.App.4th 798, 807, “an issue of fact can only be created by a conflict of evidence. It is not created by speculation or conjecture. [Citation.]” (Accord, Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist., supra, 106 Cal.App.4th at pp. 1240-1241; see also Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1733-1735 [“speculation cannot be regarded as substantial responsive evidence” that an employer’s reason was pretextual].)

In addition, Helms’s various comments regarding plaintiff’s job performance are, for the most part, not based on her personal knowledge or are otherwise without foundation. In light of the documentary evidence in the record of plaintiff’s ongoing work errors—including verbal counseling and a written warning signed by Helms—Helms’s statement that plaintiff’s problems had to do with her inability to get along with coworkers, rather than her job performance, plainly is unsupported and without foundation. Also, Helms’s statements about Stemmons’s and Fabiano’s motives and intentions are merely opinion and speculation, not based on personal knowledge. (See Martin v. Lockheed Missiles & Space Co., supra, 29 Cal.App.4th at pp. 1733-1735.)

Moreover, while the motives Helms attributes to Stemmons and Fabiano are perhaps unprofessional, they do not reflect discriminatory attitudes. Helms believed that Stemmons may have deflected her own performance problems onto plaintiff and that Fabiano may have taken the opinion of whoever came to her first, and also that Fabiano did not give Helms full autonomy in hiring. These suggested motives, however, plainly do not even hint at discriminatory animus. “As several federal courts have stated: ‘The [employee] cannot simply show that the employer’s decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent. [Citations.] 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.” [Citations.]’ [Citations.]” (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1005.)

Plaintiff points out, as evidence of “dissembling” that demonstrates pretext, that, in her declaration, Stemmons stated that she promoted a more qualified person to the processing assistant position. Then, in her deposition, Stemmons said that she was in a position to recommend a candidate for a position, but that Wendy Helms had the final authority to hire. In addition, in her declaration, Joanne Fabiano stated that she, Helms, and Stemmons were involved in consensus decision making regarding plaintiff’s qualifications for the processing assistant position. However, this evidence, if anything, merely supports Helms’s expressed belief that Stemmons was Fabiano’s agent and that Fabiano, in general, had taken away Helms’s authority to recruit and hire, which, while perhaps “wrong,” provides no evidence of pretext. (See Hersant v. Department of Social Services, supra, 57 Cal.App.4th at p. 1005.)

Finally, while Helms stated she believed that plaintiff was qualified for the position of processing assistant and was in fact more qualified than others who were promoted to that position, her opinion is explicitly based on plaintiff’s education and experience rather than plaintiff’s job performance while employed by defendant. Helms provided no foundation for her assumptions regarding what renders an employee qualified for a position with defendant, and the fact that she ignored plaintiff’s dismal record of poor evaluations, verbal counseling, and written warnings (some by her), makes her opinion on this crucial point of little value. Indeed, Helms had only been employed by defendant for some eight months at the time plaintiff expressed an interest in the processing assistant position, and had been plaintiff’s direct supervisor for only part of that eight-month period. Thus, she had limited experience with defendant’s hiring/promotion criteria and, moreover, had worked with plaintiff for only a small portion of plaintiff’s employment with defendant. (See Lopez v. University Partners (1997) 54 Cal.App.4th 1117, 1124-1125 [declarations must be based on personal knowledge]; Bowden v. Robinson (1977) 67 Cal.App.3d 705, 719-720 [same].) Furthermore, even were Helms’s disagreement regarding plaintiff’s qualifications not based on flawed reasoning, that disagreement does not show pretext. It merely shows a difference of opinion as to who would “better fit [defendant’s] needs.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 370; see also Hersant v. Department of Social Services, supra, 57 Cal.App.4th at p. 1005.)

This case thus differs from Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1045, a retaliation action in which our Supreme Court rejected the defendant’s argument that the plaintiff’s belief that a supervisor’s order was discriminatory rested “solely on her own subjective experience.” The court found that, “[i]nasmuch as [plaintiff] had been a regional sales manager for many years and presumably was familiar with the company’s job requirements for sales associates, we believe that a trier of fact properly could find that, in light of [plaintiff’s] experience, her assessment that [her supervisor’s] order represented disparate treatment on the basis of sex . . . was reasonable.” (Ibid.) In the present case, however, Helms was not an experienced manager with defendant and appeared to neither fully understand nor appreciate plaintiff’s prior troubled employment history with defendant.

This case is distinguishable from Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S. 133, 144, cited by plaintiff, in which the plaintiff provided strong, credible evidence that his employer’s reasons for discharging him were pretextual.

In conclusion, even were we to find that the Helms declaration is not inadmissible in its entirety, the majority of Helms’s statements are either based on speculation and hearsay, not based on personal knowledge, are opinions that lack foundation, or reflect a mere difference of opinion. The declaration thus fails to support plaintiff’s claim of pretext. Accordingly, because plaintiff failed to produce “substantial responsive evidence” to show that defendant’s articulated reasons for its actions were untrue or pretextual, we conclude the trial court properly granted summary adjudication in favor of defendant on the three discrimination causes of action. (See Martin v. Lockheed Missiles & Space Co., supra, 29 Cal.App.4th at p. 1735.)

IV. Retaliation

Plaintiff contends the trial court erred when it granted summary adjudication on plaintiff’s retaliation claim.

The three discrimination causes of action in plaintiff’s complaint included the following language: “During the time plaintiff was employed by CHASE, she was discriminated against with respect to the terms, conditions, and privileges of her employment because of her [age/race/national origin]. Such discrimination and harassment consisted of, but was not limited to, unfounded complaints made against plaintiff concerning plaintiff’s work; plaintiff’s assignment to perform menial and demeaning duties; demotion; repeated insults and slurs concerning plaintiff’s [age/race/national origin] in plaintiff’s presence and the presence of others, retaliation against plaintiff, denial of advancement, promotions and other benefits, and repeated acts of harassment and discrimination directed at plaintiff which for her created a hostile environment.” (Italics added.) The complaint also alleged: “CHASE knew or should have known of these harassing and discriminatory actions because plaintiff’s managers, supervisors and co-workers and others’, including defendant STEMMONS’, discriminatory and harassing behavior was brought directly to the attention of CHASE.” (Italics added.) The complaint contained no separate cause of action for retaliation.

In its summary judgment order, the trial court found that “plaintiff failed to allege retaliation as a separate cause of action, and the contentions needed to support a retaliation cause of action do not appear in the complaint.”

Plaintiff argues that the trial court incorrectly found that her retaliation claim had to be alleged as a separate cause of action, and also asserts that the necessary contentions to support the claim did appear in the complaint. (See Mathieu v. Norrell Corp. (2004) 115 Cal.App.4th 1174, 1188, fn. 12.) We need not decide whether the complaint adequately set forth a claim for retaliation because we conclude that, even had it done so, the evidence shows that plaintiff did not make a prima facie case of retaliation.

“To establish a prima facie case of retaliation, ‘ . . . the plaintiff must show that he engaged in a protected activity, his employer subjected him to adverse employment action, and there is a causal link between the protected activity and the employer’s action.’ [Citation.]” (Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th 803, 814.)

With respect to the requirement that an employee engage in a protected activity, “an employee’s unarticulated belief that an employer is engaging in discrimination will not suffice to establish protected conduct for the purposes of establishing a prima facie case of retaliation, where there is no evidence the employer knew that the employee’s opposition was based upon a reasonable belief that the employer was engaging in discrimination. [Citation.]” (Yanowitz v. L’Oreal USA, Inc., supra, 36 Cal.4th at p. 1046.)

Here, the evidence shows that, on April 16, 2003, plaintiff sent an email to Stemmons, in which she questioned why Tao had been given the processing assistant position instead of her, and wrote that she felt she was receiving “unfair treatment with unfair reasons” from Stemmons and others. However, plaintiff acknowledged during her deposition that she had never complained of discrimination to anyone at her job.

While an employee is not required to use “legal terms or buzzwords” when opposing discrimination (Yanowitz v. L’Oreal USA, Inc., supra, 36 Cal.4th at p. 1047), plaintiff’s vague complaint of unfairness was insufficient to constitute a protected activity for purposes of establishing a prima facie case of retaliation. Accordingly, summary adjudication was properly granted as to that claim.

V. Intentional Infliction of Emotional Distress

Plaintiff contends the trial court erred when it granted summary adjudication on plaintiff’s cause of action for intentional infliction of emotional distress.

In its summary judgment order, the trial court found, as to the intentional infliction of emotional distress cause of action, that plaintiff “concedes that her claim for emotional distress is based on the same conduct which underlies the discrimination claims, and the plaintiff failed to identify any evidence to show extreme and outrageous conduct. Therefore, there are no facts to support the claim for Intentional Infliction of Emotional Distress.”

The elements of intentional infliction of emotional distress include: (1) outrageous conduct by the defendant; (2) intention to cause, or reckless disregard of the probability of causing, emotional distress; (3) severe emotional distress suffered by the plaintiff; and (4) actual and proximate cause. (Agarwal v. Johnson (1979) 25 Cal.3d 932, 946.) “Outrageous conduct” is defined as “ ‘conduct exceeding all bounds usually tolerated by a decent society, of a nature which is especially calculated to cause, and does cause, mental distress.’ [Citations.]” (Wallis v. Superior Court (1984) 160 Cal.App.3d 1109, 1120.)

In the present case, as the court stated, plaintiff’s claim for intentional infliction of emotional distress was based on the same facts supporting her discrimination claims. We have found her discrimination and retaliation claims to be without merit. Consequently, plaintiff may not now pursue a tort action based on defendant’s allegedly outrageous conduct since “[t]he kinds of conduct at issue (e.g., discipline or criticism) are a normal part of the employment relationship. Even if such conduct may be characterized as intentional, unfair or outrageous, it is nevertheless covered by the workers’ compensation exclusivity provisions.” (Shoemaker v. Myers (1990) 52 Cal.3d 1, 25.)

We also observe that the facts alleged would not satisfy the requirement of outrageousness. No matter how distressing the situation was for plaintiff, we do not believe that a reasonable juror could possibly find that the conduct complained of was “so extreme as to exceed all bounds usually tolerated in a civilized society.” (Trerice v. Blue Cross of California (1989) 209 Cal.App.3d 878, 883.)

Summary adjudication was properly granted as to the intentional infliction of emotional distress cause of action.

DISPOSITION

The judgment is affirmed. Costs on appeal are awarded to defendant, JP Morgan Chase & Company.

We concur: Haerle, J., Richman, J.


Summaries of

Burke v. JP Morgan Chase & Co.

California Court of Appeals, First District, Second Division
Mar 19, 2008
No. A113524 (Cal. Ct. App. Mar. 19, 2008)
Case details for

Burke v. JP Morgan Chase & Co.

Case Details

Full title:ELSIE BURKE, Plaintiff and Appellant, v. JP MORGAN CHASE & COMPANY…

Court:California Court of Appeals, First District, Second Division

Date published: Mar 19, 2008

Citations

No. A113524 (Cal. Ct. App. Mar. 19, 2008)