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Cozzi v. McCain, Inc.

California Court of Appeals, Fourth District, First Division
Apr 13, 2009
No. D053347 (Cal. Ct. App. Apr. 13, 2009)

Opinion


JEANETTE COZZI, Plaintiff and Appellant, v. McCAIN, INC., et al., Defendants and Respondents. D053347 California Court of Appeal, Fourth District, First Division April 13, 2009

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of San Diego County No. 37-2007-00065355- CT-WT-CTL, Michael M. Anello, Judge.

NARES, Acting P. J.

Plaintiff Jeanette Cozzi asserts she was discriminated against, harassed, and ultimately terminated because of her age. Her employer, McCain, Inc. (McCain), in turn contends Cozzi was laid off as part of a company restructuring.

Cozzi sued McCain and a supervisor, William Brown (together defendants), stating causes of action for intentional discrimination, disparate treatment discrimination, harassment, breach of express and implied contract not to terminate without cause, and wrongful termination in violation of public policy. McCain and Brown filed motions for summary judgment, which the court granted.

On appeal Cozzi asserts the court erred in granting summary judgment because (1) triable issues of fact exist on her discrimination, harassment and public policy claims; (2) the court erred in considering statistical evidence concerning the age of McCain employees set forth in the declaration of defendants' lay witness; (3) the court erred in excluding the declaration of her psychiatrist expert stating she suffered emotional distress as a result of the alleged discrimination and harassment; and (4) the court should have granted Cozzi's request for a continuance to rebut the statistical evidence and gather additional evidence in support of her claims. We affirm.

Cozzi does not appeal the court's dismissal of her implied and express contract claims.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Complaint

In April 2007 Cozzi filed a complaint against McCain, Brown, and McCain's human resources manager, Jo Ann Mills. The complaint stated causes of action for intentional age discrimination in violation of the Fair Employment and Housing Act (FEHA), Government Code section 12941, disparate impact age discrimination in violation of FEHA, harassment based on age, breach of implied contract not to terminate employment without cause, breach of express contract not to terminate employment without cause, and wrongful termination in violation of public policy.

Cozzi later voluntarily dismissed Mills from the action.

In support of her claims, Cozzi alleged that she, an employee over the age of 40, received a series of e-mails from Brown threatening that if new directions he had given were not followed, "changes were to be made." Thereafter, Cozzi attended a meeting of the sales department called by Brown, who indicated the department had failed to meet sales goals, and they would have to cut labor costs. Cozzi was then called in to a meeting with Mills, who informed her she was being laid off because of "company restructuring." According to Cozzi, after the layoffs of "mostly older employees," McCain put new employees in their positions. "Leanne Arnold, a younger employee who had been with McCain only a few years," was given her job.

In support of her intentional discrimination and disparate impact discrimination claims, Cozzi alleged McCain "discharged older employees with greater frequency than younger employees, hired fewer employees who were older than 40, and gave better jobs and benefits to younger employees." She alleged McCain replaced her with a worker younger than 40, and its managers and supervisors made a number of comments to and about Cozzi that exhibited "ageist motivations, intentions, and consciousness." In support of her harassment claim, Cozzi alleged McCain and Brown "directed numerous comments to plaintiff... shunned her in daily activities, refused to involve her in various projects, and took other actions directed toward [her]."

Cozzi alleged that based upon oral promises made by McCain, as well as its actual practices, there was an implied and express agreement not to terminate her except for good cause. Finally, Cozzi alleged that in violating the statutes prohibiting discrimination and harassment based upon age, her termination was in violation of public policy.

B. McCain and Brown's Summary Judgment Motion

1. Cozzi's employment with McCain

Cozzi began working for McCain as an "at will" employee in 1996 in the position of sales assistant. At the time she was hired she was 49 years old. Over the course of her employment, Cozzi was promoted to the position of sales coordinator and sales estimator. In her position as sales estimator, Cozzi was responsible for selling traffic signal components and software to cities and other governmental entities. McCain never denied Cozzi a promotion while she worked for the company.

2. No complaints about harassment/discrimination

In support of the motion for summary judgment, McCain submitted the declaration of Jo Ann Mills, its vice president of human resources for 12 years. According to Mills, McCain informed its employees of its policies and procedures, including options for making complaints about harassment or discrimination. Cozzi admitted in her deposition she received McCain's employee handbook that described its antidiscrimination and antiharassment policies. The handbook included detailed provisions for immediate reporting of any harassment and discrimination to any member of management or human resources. Cozzi admitted she was aware of the policies regarding reporting of harassment and discrimination.

Cozzi was questioned in her deposition about alleged statements by her supervisor Brown at a group meeting that there were employees that were too old. Cozzi admitted that she never told anyone at McCain, whether management, human resources or coworkers, about these alleged comments. She also admitted she never told anyone at the California Department of Fair Employment and Housing (DFEH) about the alleged statements by Brown. She admitted she never told her supervisor she believed she was being discriminated against because of her age.

Forty-seven-year-old Brown had been McCain's vice president of sales since 2003. According to Mills and Brown, they were never aware of any complaint by Cozzi of any discriminatory or harassing behavior by anyone at McCain, including Brown.

3. McCain's "cultural shift"/alleged statements by Brown

In 2004 McCain underwent a significant cultural shift of increased accountability for results. Brown distributed to employees copies of the book Good to Great to convey its renewed commitment to staying competitive and to assist employees in understanding the company's core principles of excellence. Cozzi did not consider the book discriminatory.

Brown held monthly group sales meetings with members of Cozzi's sales department to inform, motivate, and inspire the sales employees. During those meetings, according to Cozzi, Brown made statements that some employees "were too slow" and "too entrenched in their ways." However, she admitted the alleged statements were made to a group of approximately 20 salespersons and were directed to the group as a whole, not to her individually.

4. Layoffs

In June 2006 McCain determined it was necessary to restructure the company and reduce its workforce due to changing market conditions. All departments were told to evaluate their personnel to see where costs could be cut. According to Brown and Mills, the sales department was the hardest hit because it was considered the most dispensable during times of financial challenge.

According to Brown, the employees McCain laid off were selected based upon their skills, experience, and value to the newly restructured company. Cozzi and five other members of her sales department were laid off. Brown declared that Cozzi was selected for lay off because "she had more limited skills and experience than some of the other employees who would be remaining, and overall added less value to the organization. Further, because [Cozzi's] sales volume was less than some of the other employees, her responsibilities could more easily be absorbed by remaining employees." According to Brown, the sale employees who remained "absorbed [Cozzi's] responsibilities." According to Mills, between June and December 2006 approximately 24 employees were laid off or voluntarily left McCain. None of the laid off employees was rehired or replaced.

After Cozzi's layoff, a number of additional employees unexpectedly voluntarily left their employment with McCain. This required McCain to further restructure its workforce. As a result, about three to four months after Cozzi was laid off, McCain employee Leanne Arnold was asked to absorb some of Cozzi's responsibilities.

5. Age of McCain workers before and after layoffs

According to Mills, at the time Cozzi was laid off, McCain had approximately 120 employees in California. At that time, McCain had a total of 38 people in its California sales department, of which fifty-three percent were over 40 years old. Brown himself was over 40 years old when the layoffs occurred. Cozzi was 49 when she was hired.

According to Mills, in the previous 10 years over 59 percent of new hires were over 40 years old. Before Cozzi's layoff 63 percent of McCain employees nationwide were over 40, and 53 percent of employees in the California sales department were over 40. After the layoffs approximately 60 percent of McCain employees were over 40, and approximately 41 percent of the California sales department were over the age of 40.

C. Cozzi's Opposition

1. Cozzi's tenure with McCain

Cozzi was employed by McCain for 10 years and was 60 years old at the time she was laid off. She was promoted twice, and her last position was sales estimator.

During her tenure her work record was excellent and her reviews uniformly positive.

In 2004 Brown became Cozzi's supervisor. According to Cozzi, when Brown took over, he began talking about putting a "younger gung-ho" face on the company. However, a review of the cited evidence, Cozzi's deposition testimony, shows Cozzi was not talking about statements made by Brown, but rather it was her opinion as to why the book Good to Great was circulated, and what McCain's "shift in philosophy" was at the time. Cozzi also claims in her appellate brief that "under Brown, the department began to hire only younger employees and to treat older workers very poorly," again citing Cozzi's deposition testimony. However, in that deposition testimony she only stated that she thought after circulation of Good to Great that McCain's actions discriminated against older workers in the sales department because "[t]here was [sic] a lot of people hired that were very young" and because of McCain's "treatment of older employees." She did not say all workers hired were younger, nor describe the treatment of older workers.

According to Cozzi, Brown "repeatedly stated in meetings that some workers were 'too old' and 'too entrenched in their ways' to stay at McCain─often looking at Cozzi when he made these derogatory remarks." However, a review of the cited deposition testimony shows the comments were made in group sales meetings where around 20 people were present and were directed at the group, not at her individually. She did testify Brown would look at her "occasionally" when he made the comments (5AA 1203-1204)! and that " 'I thought he glanced at me.' " She also testified Brown would engage younger workers in conversation, but not the older ones.

Cozzi claims that the day before she was laid off, she and two coemployees went to McCain's human resources department "to complain about Brown's actions, his ageist attitude, and his discriminatory comments." However, her deposition testimony only states that she attended a meeting with two coworkers, and they, not she, complained. Further, their only complaint was about "the way that information was coming from [Brown]." Further, as detailed in McCain's moving papers, she admitted in her deposition she never complained about any alleged discriminatory actions to human resources or any other person at McCain while she was employed there.

2. Evidence of alleged discriminatory motive

According to Cozzi, all but one of the "six employees laid off [by McCain] company-wide were more than 40 years old." However, Cozzi provided no evidentiary support for the proposition that only the six sales persons in her department were laid off by the company, which is contrary to Mills's declaration concerning the number of layoffs company-wide. She claims her work load and duties were absorbed by two other workers, one 36 years old and one 50 years old. According to Cozzi, some time after her termination "two new hires were brought into the company to replace Cozzi; both were 'less than 40' years old." However, the cited deposition testimony of Brown actually states that those two people were two of four people who took over Cozzi's responsibilities, and they were hired after two others who originally took over her responsibilities voluntarily left McCain.

Cozzi also claims she was given conflicting reasons for her termination. McCain first told her she was laid off because it was "restructuring" its sales department. McCain then claimed she was let go because "[s]ales were not at a level that [McCain] need[ed] to be to sustain business with the employees that we had...." According to Cozzi, however, "Brown could not claim that sales had dropped even 'one percent' in the year in which Cozzi's employment was terminated." However, a review of Brown's deposition testimony reveals he only testified that he did not know by what percentage sales were off.

Citing Brown's deposition testimony, Cozzi also asserts sales had actually increased every year from 2004 to her termination in 2006. However, that is a misstatement of Brown's deposition testimony. Rather, he stated sales increased in 2007, after the restructuring, not from 2004 to Cozzi's termination date.

Cozzi claims Brown "conceded that no layoffs were mandated by any budget cut in 2006. Brown, in fact, was never directed to cut his payroll in 2006." However, Cozzi again misstates Brown's deposition testimony. He actually testified in his deposition he was told by the head of the company "that we as a company needed to find a way to cut expenses, which... could and did include personnel."

3. Objections to defendants' evidence/request for continuance

Cozzi filed a written objection to Mills's declaration, asserting it lacked foundation and was hearsay. In particular, Cozzi objected to Mills's statements about the reasons for the layoffs, and the statistical evidence she submitted concerning the percentage of employees who were over 40 years of age before and after the layoffs.

Alternatively, Cozzi requested that the court grant her a continuance to take the deposition of Mills regarding the statistical evidence. In support of the request, counsel for Cozzi submitted a declaration stating that an attorney with whom he was a partner on 10 cases had been shot, he had taken over that attorney's case load, and that had prevented him from completing the deposition of Mills and filing a motion to obtain statistical evidence he had previously requested from McCain.

However, counsel for McCain pointed out in response that Cozzi had brought a motion to compel production of documents, which the court denied due to counsel's failure to meet and confer. In that order the court noted, "Plaintiff's counsel has never identified, although invited to do so by Defendants, the precise deficiencies it claims exist in Defendants['] responses." Moreover, counsel for Cozzi unilaterally cancelled the deposition of Mills the day before it was set to go forward, and never attempted to reschedule the deposition, either before or after the filing of the summary judgment motion.

D. Defendants' Objection to Milgrim Declaration

In support of her opposition, Cozzi submitted a declaration from psychiatrist Franklin Milgrim, M.D. According to Cozzi, the declaration was intended to show Cozzi suffered emotional distress as a result of the alleged harassment by Brown and her ultimate termination. Dr. Milgrim opined that "[a]s a result of [McCain's] actions against [Cozzi], [she] suffered severe adjustment disorder with mixed anxiety and depressed mood. [Cozzi] has endured severe depression, shame, embarrassment, anger, hurt and loss of self-confidence as a result of the harassment and discrimination she endured."

Defendants objected to the declaration on the basis that it was irrelevant to the legal issues presented in the summary judgment motion because they did not move for summary judgment on the basis that that there was a lack of harm or damages.

E. Court's Ruling

In May 2008, after hearing oral argument and taking the matter under submission, the court granted McCain and Brown's motions for summary judgment. The court first found good cause did not exist to grant Cozzi's request for a continuance. The court also overruled her objections to Mills's declaration, stating, "The facts stated in her declaration are matters as to which she might reasonably be expected to have personal knowledge, given she avers she has been the VP of Human Resources for twelve (12) years, and thus should be accepted as admissible evidence in support of [McCain and Brown's] Motion for Summary Judgment." The court sustained defendants' objection to the declaration of Milgrim, finding it was irrelevant "to the legal issues presented in [defendants'] motions for summary judgment."

The court granted Brown's motion as to the harassment cause of action, finding "[i]ndividual supervisors are not personally liable for age harassment/discrimination claims under the FEHA." Moreover, the court found that even if Brown could be held individually liable on the harassment cause of action, Cozzi had failed to show any of his conduct was "severe and pervasive enough to alter the condition of [Cozzi's] employment." The court noted that Cozzi "conceded in her deposition that his comments about people being too slow or too entrenched were not directed at her but were made to a group of twenty at sales meetings." The court granted McCain's motion as to the harassment claim on the same grounds.

In granting McCain's motion as to the intentional age discrimination claim, the court found that Cozzi's "alleged evidence is that supervisor Brown made stray comments about employees being too slow or too entrenched and that six of seven lay-offs in the sale[s] department were of people were over forty (40).... First, [Brown's] comments are not enough to raise an inference that a comment is age based. [Citation.] [Cozzi] conceded in her deposition that such comments were not directed at her but were made to a group of twenty at sales meetings. [Citation.] Moreover, [Cozzi] presents no evidence [McCain] acted with animus. While she presents statistics (i.e., that 6 of the 7 lay-offs in sales were of people over forty) this statistic is too miniscule to show a statistically reliable discriminatory pattern, particularly when such lay-offs did not significantly change the average age of the workforce of the number of those over forty... who remained."

As to the cause of action for disparate impact age discrimination, the court found again that the statistical evidence presented by Cozzi was too miniscule to show a "stark pattern" of discrimination. "The percentage of people laid off who are over forty (40) does not show age discrimination where it does not significantly change the average age of the workforce or the number of those over forty (40) who remained."

The court also granted McCain's motion as to the causes of action alleging an express and implied contract not to terminate except for good cause on the grounds there was an express "at will" clause in her employment agreement. The court dismissed the termination in violation of public policy claim as it was based upon the age discrimination claim, which it had already ruled failed as a matter of law.

DISCUSSION

I. STANDARDS GOVERNING SUMMARY JUDGMENT MOTIONS

A defendant moving for summary judgment bears the burden of persuasion to show either (1) one or more elements of the plaintiff's cause of action cannot be established or (2) there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subds. (o), (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 (Guz).) When the motion is based on the assertion of an affirmative defense, the defendant has the initial burden to demonstrate that undisputed facts support each element of the affirmative defense. (Anderson v. Metalclad Insulation Corp. (1999) 72 Cal.App.4th 284, 289.) "The defendant must demonstrate that under no hypothesis is there a material factual issue requiring trial. [Citation.] If the defendant does not meet this burden, the motion must be denied. Only if the defendant meets this burden does 'the burden shift[] to plaintiff to show an issue of fact concerning at least one element of the defense.' " (Id. at pp. 289-290.)

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

On appeal, we independently review the trial court's decision, considering all of the evidence in the supporting and opposing papers and apply the same standard as the trial court. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037; Guz, supra, 24 Cal.4th at p. 334.) We liberally construe the evidence in support of the opposing party, resolving doubts concerning the evidence in its favor (Yanowitz, at p. 1037; Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142), and assess whether the evidence would, if credited, permit the trier of fact to find in its favor under the applicable legal standards. (Cf. Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.) We do not weigh the evidence and inferences, but merely determine whether a reasonable trier of fact could find in the opposing party's favor, and we must reverse the order granting summary judgment when there is some evidence that, if believed, would support judgment in its favor. (Alexander v. Codemasters Group Limited (2002) 104 Cal.App.4th 129, 139.)

II. ANALYSIS

A. Age Discrimination

In order to prevail on a claim of employment discrimination, a plaintiff bears the ultimate burden of showing the employer took adverse action against the plaintiff because of the plaintiff's sex, race, religion, age, disability or sexual orientation. (See Guz, supra, 24 Cal.4th at p. 356; St. Mary's Honor Center v. Hicks (1993) 509 U.S. 502, 508-509 [113 S.Ct. 2742]; Price Waterhouse v. Hopkins (1989) 490 U.S. 228, 251 [109 S.Ct. 1775]; Heim v. State of Utah (10th Cir. 1993) 8 F.3d 1541, 1545-1547.) Where an employer has presented credible evidence the employment decision was made for lawful reasons and there is no direct evidence of discrimination, the plaintiff opposing a motion for summary judgment faces a difficult burden. In those circumstances "the great weight of federal and California authority holds that an employer is entitled to summary judgment if, considering the employer's innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that the employer's actual motive was discriminatory." (Guz, supra, 24 Cal.4th at p. 361, fn. omitted.)

"Because of the similarity between state and federal employment discrimination laws, California courts look to pertinent federal precedent when applying our own statutes." (Guz, supra, 24 Cal.4th at p. 354.)

In reaching this conclusion about a plaintiff's burden in responding to a motion for summary judgment in a discrimination case, the court in Guz adapted for use in summary judgments a three-stage burden shifting test which was established by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 [93 S.Ct. 1817] (McDonnell Douglas) for use at trial. Under the McDonnell Douglas test, the plaintiff must first establish a prima facie case of discrimination by showing (1) she is a member of a protected class, (2) she was qualified for the position she held or was attempting to obtain, (3) she either lost her job or promotion, and (4) some other circumstance, such as the fact the job in question was given to someone who was not in a protected class or remained open, suggests a discriminatory motive. (See Guz, supra, 24 Cal.4th at p. 355.) Once the plaintiff has established a prima facie case of discrimination, a presumption of discrimination arises and the employer has the burden of showing there were legitimate, nondiscriminatory reasons for its employment action. (Id. at p. 356.) However, if the employer meets that burden, "the presumption of discrimination disappears." (Ibid.) At that point the plaintiff must then "have the opportunity to attack the employer's proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive." (Ibid.) Importantly, the ultimate burden of persuasion "on the issue of actual discrimination remains with the plaintiff." (Ibid.)

In Guz the court found that in the context of a motion for summary judgment, and notwithstanding the plaintiff's prima facie case, an employer's evidence of lawful reasons for its decision about the plaintiff must be met by substantial contrary evidence of discrimination. The court stated: "[E]ven where the plaintiff has presented a legally sufficient prima facie case of discrimination, and has also adduced some evidence that the employer's proffered innocent reasons are false, the fact finder is not necessarily entitled to find in the plaintiff's favor.... 'Certainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational factfinder could conclude that the action was discriminatory. For instance, an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer's decision, or if the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred. [Citations.]... [¶] Whether judgment as a matter of law is appropriate in any particular case will depend on a number of factors. These include the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case....' [Citation.] [¶]... [S]ummary judgment for the employer may thus be appropriate where, given the strength of the employer's showing of innocent reasons, any countervailing circumstantial evidence of discriminatory motive, even if it may technically constitute a prima facie case, is too weak to raise a rational inference that discrimination occurred." (Guz, supra, 24 Cal.4th at pp. 361-362, fn. omitted, some italics added.)

In Guz, the plaintiff alleged he was terminated from his employment because of his age. In its summary judgment motion, his employer offered evidence the plaintiff's work unit was eliminated and its tasks were transferred to another office. The employer also offered unrebutted testimony that in selecting certain members of the discontinued unit for transfer to the new unit and in filling other open positions in the new unit, the employer did so based on supervisors' assessments of the retained employees' particular skills and not on the basis of their age. In response to this motion, the plaintiff offered evidence most of the employees who were not transferred from the discontinued unit were older than the two employees who were transferred and that two of the three vacant positions in the new unit were filled with younger employees of the company. Because the employer presented a strong, credible case the plaintiff's dismissal was for reasons unrelated to age, and the inferences to be drawn from the data he relied upon were relatively weak, the court in Guz found the employer was entitled to summary judgment. (Guz, supra, 24 Cal.4th at pp. 369-370.)

Because the parties in this matter focus on the final two steps in the age discrimination analysis, we shall exercise our discretion to bypass the issue of whether Cozzi initially made a prima facie of discrimination and focus on the issues of whether McCain demonstrated a nondiscriminatory basis for her termination and whether Cozzi in response has submitted sufficient evidence to create a triable issue of fact that McCain intentionally discriminated against her based upon her age. (See Guz, supra, 24 Cal.4th at p. 357 [court bypassed the prima facie case step because "[i]n its summary judgment motion, [the employer] did not stand mute, relying solely on the premise that [plaintiff] failed to demonstrate a prima facie case of age discrimination" but "proceeded... to the second step of the McDonnell Douglas formula"].)

As will be detailed post, we conclude that McCain met its burden of showing a nondiscriminatory basis for Cozzi's termination. We further conclude, as did our Supreme Court in Guz, Cozzi's evidence presented in opposition to defendants' summary judgment was insufficient to overcome defendants' evidence they had a legitimate, nondiscriminatory reason for Cozzi's layoff.

1. McCain showed a nondiscriminatory basis for Cozzi's termination

Because we are assuming that Cozzi has established a prima facie case, "the burden shifts to [McCain] 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." (Guz, supra, 24 Cal.4th at pp. 355-356, quoting Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248, 254-255.)

McCain must do more than simply state that Cozzi was laid off because of a restructuring or reduction in force; it must specifically explain why her position became subject to the reduction. "[A]n employer may very well implement an economically necessary reduction in force and still, at the same time, violate antidiscrimination laws because the selection of who is to be laid off is based on some illegal criteria." (O'Mary v. Mitsubishi Electronics America, Inc. (1997) 59 Cal.App.4th 563, 580.) Where, as here, the employer identifies a reduction in force as the nondiscriminatory reason for the termination, "[i]nvocation of a right to downsize does not resolve whether the employer had a discriminatory motive for cutting back its work force, or engaged in intentional discrimination in deciding which individual workers to retain and release. Where these are issues, the employer's explanation must address them." (Guz, supra,24 Cal.4th at p. 358.)

Here, McCain met its burden of showing a legitimate nondiscriminatory reason for Cozzi's termination. McCain explained the specific grounds for eliminating Cozzi's position, and the legitimate, nondiscriminatory means by which it selected her for layoff. As the declarations of Mills and Brown detailed, the sales department was targeted for a reduction because it was considered the most dispensable in times of financial challenge. Further, Brown detailed the reasons Cozzi was selected for layoff: her "limited skills and experience" and because her "sales volume was less than some of the other employees." This evidence was sufficient to meet McCain's burden on the second step of the McDonnell Douglas analysis. (Guz, supra, 24 Cal.4th at pp. 355-356.)

Accordingly, we now discuss whether Cozzi has identified direct or circumstantial evidence sufficient to permit a finding that McCain nevertheless intentionally discriminated against her because of her age. (Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 112; Texas Dept. of Community Affairs v. Burdine, supra, 450 U.S. at p. 256.)

2. Direct evidence

Cozzi asserts she has direct evidence her termination was motivated by an ageist animus based upon Brown's statements made at sales meetings, that some employees were "too old" and "too entrenched in their ways" to remain at McCain.

However, such a general comment about unidentified employees, made to a group of workers, is insufficient to show a discriminatory intent in Cozzi's selection for layoff. (See Medina-Munoz v. R.J. Reynolds Tobacco Co. (1st Cir. 1990) 896 F.2d 5, 9-10) [comment about sale staff getting to old was in the context of productivity study; summary judgment affirmed]; Simmons v. McGuffey Nursing Home, Inc. (5th Cir. 1980) 619 F.2d 369, 371 [comment that "we want a younger man this time" did not contradict lawful nondiscriminatory reasons established by record; summary judgment affirmed]; Merrick v. Farmers Ins. Group (9th Cir. 1990) 892 F.2d 1434, 1438-1439 [employer's comment that plaintiff's replacement was a "bright, intelligent, knowledgeable young man" insufficient to prevent summary judgment].) Such "stray comments," made to a group of people, are insufficient to create a triable issue of fact. (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 809 [" 'stray' ageist remark... entitled to virtually no weight in considering whether the firing was pretextual or whether the decisionmaker harbored discriminatory animus"]; Smith v. Firestone Tire and Rubber Co. (7th Cir. 1989) 875 F.2d 1325, 1330 ["remarks,... when unrelated to the decisional process, are insufficient to demonstrate that the employer relied on illegitimate criteria, even when such statements are made by the decision-maker in issue"].)

Cozzi asserts there was additional direct evidence of discrimination in addition to the content of Brown's statements, asserting he "employed a hostile tone, attitude, and manner in delivering his ageist messages targeting Cozzi." However, as discussed, ante, the record does not support this contention. Cozzi never testified Brown exhibited a "hostile tone, attitude, and manner," nor that he was "targeting" her. Rather, she admitted his statements were made to a large group, not her personally, and that he only may have "occasionally" looked in her direction. There is nothing in the record concerning a hostile tone, attitude and manner exhibited by Roberts when he made the alleged statements. Cozzi's alleged "direct" evidence of discrimination is insufficient to raise a triable issue of fact one her discrimination claim.

3. Indirect evidence of discrimination

In support of her position she presented substantial circumstantial evidence that the stated reasons for her termination were pretextual, Cozzi contends (1) McCain gave differing reasons for her layoff; (2) McCain's sales figures did not in fact drop off; (3) her job responsibilities were absorbed by others not in her protected class; (4) the timing of events suggests discrimination; (5) all but one of the laid off workers were over 40; and (6) her job performance was excellent. These contentions are unavailing.

As detailed ante, McCain did not change the stated reason for her termination. The stated reason for her layoff was always that there was a need for a restructuring because of economic pressures. Indeed, in her own complaint she describes a meeting of the sales department wherein Brown told the department it "would not meet its goals by the end of the year, so he would have to cut labor costs." Cozzi testified in her deposition that the sales department was told there were going to be cuts because of economic pressures. Indeed, in her application for unemployment benefits Cozzi stated she was told the reason for her layoff was that "the company is going to restructure because they are not making the sales dollars they expected." Thus, there was no discrepancy between Cozzi being told she was laid off because of a "restructuring" and because of "low sales."

Cozzi also asserts there is circumstantial evidence of discriminatory intent because the evidence shows sales increased as opposed to decreased "in each of the four years from 2004 through 2007...." However, as detailed, ante, this misstates the evidence. Brown only stated that after Cozzi was terminated and the restructuring took place, the sales department performed better.

Nor is there any merit to Cozzi's claim that there is an inference of discrimination based upon the fact her job responsibilities were absorbed by others who were not within her protected class. Her job responsibilities were absorbed by two employees, one 51 years old and another 37 years old, who were in positions similar to Cozzi. The additional employees hired by McCain that she alleges took over her job were actually hired to replace other employees who voluntarily left McCain after the restructuring. It is undisputed that no employee replaced Cozzi. Her job responsibilities were absorbed by a number of employees and her position no longer exists at McCain.

Nor does the "timing" of her layoff show discriminatory intent. According to Cozzi, it was at the time the book Good to Great was distributed that McCain allegedly announced it wanted a "younger gung-ho" face on the company. However, the book was distributed to employees in 2004, two years before her termination.

Further, as described, ante, Cozzi was not, as she claims, terminated "within 24 hours of her complaining to human resources about Brown's ageist comments." In fact, she admitted she never complained to anyone at McCain about any alleged discriminatory acts. Her cited deposition testimony merely states she attended a meeting where other employees complained about Brown's mode of communication.

The fact that six of the seven people laid off in her sales department were over the age of 40 also does not show an age bias. As the court noted, these numbers were statistically too small to support an inference of discrimination. (Guz, supra, 24 Cal.4th at p. 367 ["where alleged numerical favoritism of younger workers arose within an extremely small employee pool, courts have rejected any consequent inference of intentional bias on grounds, among others, that the sample was too miniscule to demonstrate a statistically reliable discriminatory pattern"]; id. at p. 375 (conc. opn. of Chin, J.); Rode v. Wells Fargo & Co. (9th Cir. 1990) 902 F.2d 1417, 1423.) This is particularly true where, as here, the reduction in force did not significantly change the average age of workers that remained at McCain. (Stidham v. Minnesota Mining & Manufacturing, Inc. (8th Cir. 2005) 399 F.3d 935, 938.)

4. Admissibility of McCain's statistical evidence

Cozzi asserts the court erred in relying upon the statistical evidence submitted by Mills showing there was no significant change in the age of workers at McCain after the restructuring. Specifically, Cozzi asserts (1) the statements in Mills's declaration lacked foundation; and (2) she was not an expert witness qualified to provide such statistics. These contentions are unavailing.

We review a court's decision to admit or exclude evidence under the abuse of discretion standard. (People v. Alvarez (1996) 14 Cal.4th 155, 201.) This " 'discretion is only abused where there is a clear showing [it] exceeded the bounds of reason, all of the circumstances being considered.' " (People ex rel. Lockyer v. Sun Pacific Farming Co. (2000) 77 Cal.App.4th 619, 639-640.)

Section 437c, subdivision (d) provides that declarations filed in conjunction with summary judgment motions "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...." "The requirement of this section is not that the declarant recite the conclusion that he can competently testify but that he allege facts showing his competence." (Roy Brothers Drilling Co. v. Jones (1981) 123 Cal.App.3d 175, 182.)

In Mills's declaration she stated that she was McCain's vice president of human resources and had been in the human resources department for 12 years. Moreover, she averred that the facts in her declaration were within her personal knowledge. She thereafter testified as to the number of McCain employees, the numbers of employees laid off, and the percentage of employees before and after the layoffs that were over 40 years old.

The court did not abuse its discretion in determining that Mills, as the vice president of human resources for McCain, was competent to provide such evidence. As the court found, the statistical evidence to which she testified is the type of which a person in her position would reasonably be expected to have personal knowledge. Cozzi provides no evidence or authority that a vice president of human resources would not be competent to provide such evidence concerning her company's workforce.

Nor are her statements improper expert opinions. She did not render an opinion, but only recited numerical facts.

Further, it is not the type of evidence that required expert testimony. Evidence Code section 800 provides that "[i]f a witness is not testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is permitted by law, including but not limited to an opinion that is: [¶] (a) rationally based on the perception of the witness; and [¶] (b) helpful to a clear understanding of his testimony." Thus, to the extent Mills's declaration could be considered opinion testimony it was not inadmissible because it was "rationally based on the perception of the witness" and was "helpful to a clear understanding of [her] testimony."

5. Denial of request for continuance

Section 437c, subdivision (h) provides that "[i]f it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication or both that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make any other order as may be just."

"The nonmoving party seeking a continuance 'must show: (1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain these facts. [Citations.]' [Citation.] The decision whether to grant such a continuance is within the discretion of the trial court." (Frazee v. Seely (2002) 95 Cal.App.4th 627, 633.)

The record here shows no abuse of discretion in refusing to continue the hearing on the summary judgment motions. As discussed, ante, (1) the court had previously denied Cozzi's motion for production of statistical evidence, and counsel for Cozzi unilaterally cancelled Mills's deposition, never attempting to reschedule it prior to the court's ruling on the summary judgment motions. On this record, we cannot say the court abused its discretion to refusing to continue the hearing on the motion for summary judgment.

B. Harassment

" ' "For [hostile work environment] sexual harassment to be actionable, it must be sufficiently severe or pervasive 'to alter the conditions of [the victim's] employment and create an abusive working environment. ' " [Citation.]' [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. [Citation.]' [Citation.]" (Muller v. Automobile Club of So. California (1998)61 Cal.App.4th 431, 446, overruled on other grounds in Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1031, fn. 6.)

1. The alleged conduct was not "severe" or "pervasive"

In support of her harassment claim, Cozzi points to Brown's alleged statements at sale meetings that people were too old or entrenched in their ways to remain at McCain. However, as detailed, ante, these comments were made to a large group, on approximately 10 occasions, and, even by Cozzi's admission, Brown would only occasionally look at her when making those remarks. Such isolated or sporadic conduct is not sufficiently severe to support a harassment claim. (Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 142-145.) The alleged statements do not demonstrate a workplace " 'permeated with "discriminatory intimidation, ridicule and insult," [citation] that is "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." ' " (Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, 517.)

Cozzi also claims Brown engaged younger people in conversation while acting differently toward older ones and would either walk by her without saying good morning or would only begrudgingly do so. Such conduct does not rise to the level of harassment as a matter of law. The FEHA "is 'not a "civility code" '." (Lyle v. Warner Bros. Television Productions (2006) 38 Cal.4th 264, 295.) Further, such alleged conduct, taken alone or in conjunction with the alleged comments by Brown, is not so "severe" or "pervasive" as to create a triable issue of fact on the harassment claim.

Based upon our conclusion that there is no triable issue of fact whether Brown's conduct was severe or pervasive enough to state a claim for harassment, we need not consider whether the court erred in finding Brown could be held individually liable on that claim. We do note, however, that the California Supreme Court has held that while supervisors cannot be held individually liable for discrimination, they can be held individually liable for harassment. (Reno v. Baird (1998) 18 Cal.4th 640, 644, 665.)

2. The court properly sustained McCain's objection to Dr. Milgrim's declaration

Cozzi asserts the court erred in sustaining defendants' objection to the declaration of Dr. Milgrim, arguing it was relevant to whether Cozzi perceived Brown's actions as harassment. This contention is unavailing.

The court did not abuse its discretion in sustaining McCain's objection to Dr. Milgrim's declaration. It is true that whether the environment created by an employer's alleged actions was perceived by the plaintiff as intimidating, hostile, abusive or offensive is an element of Cozzi's harassment claim. (See CACI No. 2521A; BAJI No. 12.05.) However, that element was irrelevant unless Cozzi first raised a triable issue of fact that the actions were so severe or pervasive that they actually created such an intimidating, hostile, abusive, or offensive working environment. (Ibid.) Cozzi's perception as to the defendants' actions, and her claimed damages as a result of defendants' conduct, were not before the court on the summary judgment motion.

C. Termination in Violation of Public Policy

1. Failure of discrimination/harassment claims dooms public policy claim

In order to state a claim for termination in violation of public policy, a plaintiff must show a public policy that is embodied by statute or constitutional provision. (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 890-891.) Here, Cozzi identified in her complaint the public policy at issue in this case as the FEHA's prohibition on age discrimination in employment. Because we have concluded that claim lacks merit as a matter of law, her claim for termination in violation of that public policy necessarily fails as well. (Rivera v. National Railroad Passenger Corp. (9th Cir. 2003) 331 F.3d 1074, 1079-1080.)

2. New claim for retaliation is without merit

For the first time on appeal Cozzi asserts that she was wrongfully terminated in violation of public policy because her termination was in retaliation for her "complaining to [human resources] about Brown's ageist comments and behavior." This contention is unavailing for two reasons.

First, Cozzi did not plead a retaliation claim in her complaint. Therefore, she could not raise such a claim in opposition to the summary judgment motion, nor for the first time on appeal. (Vournas v. Fidelity Nat. Title Ins. Co. (1999) 73 Cal.App.4th 668. 674.)

Further, even if Cozzi had properly pleaded such a claim, it would fail as a matter of law. As discussed in detail, ante, Cozzi admitted she never complained about any allegedly discriminatory conduct to McCain's human resources department or anyone else at McCain.

DISPOSITION

The judgment is affirmed. Respondents shall recover their costs on appeal.

WE CONCUR: McDONALD, J., O'ROURKE, J.


Summaries of

Cozzi v. McCain, Inc.

California Court of Appeals, Fourth District, First Division
Apr 13, 2009
No. D053347 (Cal. Ct. App. Apr. 13, 2009)
Case details for

Cozzi v. McCain, Inc.

Case Details

Full title:JEANETTE COZZI, Plaintiff and Appellant, v. McCAIN, INC., et al.…

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

Date published: Apr 13, 2009

Citations

No. D053347 (Cal. Ct. App. Apr. 13, 2009)