Opinion
H031849.
2-27-2009
TERRI LYNN CURTIS, Plaintiff and Appellant, v. SILICON VALLEY BANK, Defendant and Respondent.
Not to be Published in Official Reports
Appellant Terri Curtis was terminated from her position as a compensation manager for respondent Silicon Valley Bank (SVB). Curtis, who was 41 years old at the time of her termination and had returned from maternity leave five months prior to her discharge, brought an action against SVB for age discrimination, gender discrimination, and wrongful termination in violation of public policy. The trial court granted summary adjudication of each of Curtiss causes of action and, hence, SVBs motion for summary judgment.
On appeal, we conclude that SVB presented sufficient evidence of nondiscriminatory reasons for terminating Curtis and that Curtis failed to present substantial responsive evidence demonstrating the existence of a material factual dispute with regard to pretext or discriminatory animus on the part of SVB. We therefore hold that the court properly granted summary adjudication of Curtiss causes of action for age and gender discrimination. We also hold that Curtis cannot state a claim for wrongful termination in violation of public policy. We therefore affirm the summary judgment.
Facts
Curtis began working for SVB as a temporary compensation consultant in April 2003. On May 14, 2003, SVB offered Curtis permanent at-will employment in the human resources department as its compensation manager. Curtis accepted the offer and was hired in the latter part of May 2003, at a base salary of $125,000 per year. She was 40 years old at the time. When she was hired as a permanent employee, SVB gave Curtis a $5,000 signing bonus, told her she was eligible to participate in the companys Incentive Compensation Plan, and told her that it would recommend that the board of directors award her 3,500 stock options.
The record is inconsistent with regard to Curtiss date of hire and includes the following dates of hire: May 20, 2003, May 22, 2003, and May 27, 2003.
Curtis has a bachelors degree in organizational communications. Prior to her employment at SVB, she worked in human resources at two technology companies.
During Curtiss tenure with SVB, the bank had a number of compensation programs that tied employee compensation to performance, including the share stock option program, the Incentive Compensation Program, the Retention Program, and the carried interest plan. The human resources department advised SVB how to use "money as an incentive to retain people and drive the right performance." Curtis was responsible for developing or administering some of these programs. SVBs Board of Directors Compensation Committee and its Steering Committee reviewed the compensation programs and made decisions regarding bonus awards and stock option awards. The Steering Committee consisted of senior SVB executives who met weekly to define company strategy.
On November 3, 2003, the Compensation Committee approved a grant of options for Curtis to buy 4,000 SVB shares. The shares were to vest annually over four years and expire in five years.
On March 1, 2004, Ken Wilcox, the chief executive officer (CEO) of SVB, sent Curtis a letter presenting her with her 2003 Incentive Compensation Program award of $49,950 for work done in 2003.
When SVB offered Curtis her job, Leilani Gayles was the Head of Human Resources. Gayles left in 2003 or 2004 and Derek Witte, SVBs General Counsel, became the acting Head of Human Resources. SVB experienced considerable turnover with its Head of Human Resources position. Prior to October 2004, the previous five heads of the department lasted an average of 11 months each.
On April 1, 2004, Curtis received a merit increase in her base salary to $143,750 per year. Later that month, the acting Head of Human Resources, Witte, prepared Curtiss first performance review, covering the period May 2003 through December 2003. During that time, Curtis conducted a "comprehensive review" of the compensation program. Witte noted that this goal was something that would have been very difficult for most human resources departments to accomplish without a lot of consulting expense and time and that Curtis "made it look effortless," which was a "testament to her skill and experience." Curtis formulated a compensation philosophy and strategy, which the bank did not have before she arrived, and developed compensation programs. Witte noted that this was a "huge effort" and that Curtis and her team were able to do it without the system support they originally expected. Curtis educated internal committees, board committees, and management regarding the new program. Witte also noted that Curtis was very helpful to him in heading up the department, since he did not have a background in human resources.
Although "very pleased" with Curtiss contribution, Witte stated that there were three areas that needed attention and opined that they would hold Curtis back in her career progression if she did not address them. They included: (1) failing to state her opinions, speak up in meetings, and share her expertise with the company; (2) failing to communicate information about the programs she is responsible for to employees and managers; and (3) failing "to deliver what she promises when she says she will." The last area of concern had "been a particular problem for [Witte] in getting materials ready for the Board and Compensation Committee."
After the performance reviews were done, SVB divided the employees into three groups: those that "need improvement," "successful contributors," and "distinguished performers." Curtis was among the 20 percent of employees who were ranked as "distinguished performers." On May 3, 2004, CEO Wilcox sent Curtis a letter advising her of this distinction and thanking her for her commitment to the bank. About this time, Wilcox also sent Curtis a card thanking her for putting together a compensation program for Alliant, an SVB subsidiary.
From June 6, 2004 until September 3, 2004, Curtis was on maternity leave related to the birth of her third child. While she was on leave, Sue Garcia, the compensation advisor, covered Curtis workload. When Curtis went on leave, she was working on the "carried interest plan," a program that is unique to the banking industry. Her staff and management team were not familiar with the program, so they hired a consultant to develop it while Curtis was on maternity leave. According to Curtis, the consultant took the program in a "different direction" than SVB would have taken it had she been there, which resulted in extra work "reigning that back in."
In September 2004, Witte did a second performance evaluation on Curtis. In the evaluation, Witte discussed 11 goals and projects that Curtis had worked on in the six months prior to the review. In his summary of the review, Witte stated: "[Curtis] played a huge role during the first half of the year as we rolled out a new and comprehensive approach to employee evaluation and compensation. Her understanding of the principles of compensation and management as well as her experience in implementing systems was instrumental to the success of the system. Her role was naturally diminished during the summer while she was on maternity leave." Witte suggested Curtis focus on two areas: "1) simple employee communication around compensation programs and 2) meeting commitments and deadlines, especially for deliverables to the Compensation and Steering Committees." After this evaluation, Curtis was rated a "successful contributor."
On October 18, 2004, approximately six weeks after Curtis returned from her maternity leave, SVB hired Lynda Ward Pierce as its new Head of Human Resources. Pierce had a masters degree in human resources and 18 years experience as a human resources professional. Pierce was one year older than Curtis.
Before she was hired, CEO Wilcox, Witte, and other members of the Steering Committee told Pierce that the human resources department had a poor reputation within SVB and that one of her challenges would be to improve the departments performance and reputation. Before starting with the company, Pierce reviewed the performance evaluations for the human resources staff, including Curtiss evaluations.
Pierce "never developed confidence in Curtis." Pierces first contact with Curtis was at a board of directors meeting in Boston on Pierces first day on the job in mid-October 2004. During the meeting, Curtis failed to adequately communicate compensation issues to the Compensation Committee and Pierce had to intervene to clarify the issues that Curtis had failed to explain adequately. In follow-up discussions, Witte and Wilcox told Pierce they were concerned about Curtiss ability to effectively administer SVBs complex compensation program and communicate with the Compensation Committee and the Steering Committee regarding the program.
In her first day at the Santa Clara office, Pierce told the human resources staff that they needed to improve the way the department was perceived within the company. On October 22, 2004, Pierce sent her management team, including Curtis, an e-mail about the need to improve the "departments quality, accuracy, and reliability." She told them that she had heard the department lacks professionalism, that its work tends "to be a bit sloppy" and that its work product frequently contains errors. She also suggested specific ways the department could improve. Curtis described Pierce as a "stickler" regarding grammar and the accuracy of information provided in their communications.
On November 17, 2004, Pierce sent Curtis an e-mail complaining that there was a mathematical error in a spreadsheet Curtis had prepared for a presentation and stated "We need to fix that propensity." Curtis responded that some of the figures were "reported" rather than "calculated," and were not mathematical errors. However, she conceded that there were some math errors in the spreadsheet.
On November 19, 2004, SVB approved a grant of options for Curtis to buy 1000 SVB shares "as a way of recognizing her commitment and contributions." The shares were to vest annually over four years and expire in seven years.
Pierce decided that she would not have any input into the evaluation of employee performance for 2004 since she was new to the company and relied on Witte to evaluate the human resources employees.
In December 2004, Pierce hired her former colleague Robert Coleman to oversee SVBs payroll, compensation, benefits, and "HR Information Systems" (HRIS). She told her staff that she hired Coleman because she believed SVB needed "a more sophisticated compensation and benefits expert with a strong systems orientation who could manage its extremely complicated compensation and benefits programs." Colemans title was "Director of Total Rewards and Accountability." He started work at SVB on January 18, 2005. At that time, he was 37 or 38 years old. Curtis reported to Coleman, who reported to Pierce. Curtis told both Pierce and Coleman that she was concerned that Colemans arrival would be viewed as a demotion of Curtis.
In December, a subcommittee of the Steering Committee met to review the Retention Program bonus awards for 2004. Pierce was on the subcommittee. The subcommittee met for one to two hours, during which time they reviewed a spreadsheet which contained bonus recommendations for 112 employees in four different employment categories. Five to seven percent of SVB employees were eligible for these bonuses, based on their titles or positions. The Retention Program bonuses were paid out of a pool of funds; each eligible employee was allocated a percentage of the pool. Curtis was in the lowest tier of employees. Based on her "successful" rating in her mid-year review, the subcommittee recommended that she receive a bonus of .05 percent of the pool. On January 4, 2005, the subcommittee circulated the proposed figures to the Steering Committee for comment. A Steering Committee member proposed one change, which did not involve Curtis, and the allocations were final as of January 5, 2005.
A series of events during the latter half of January and early February 2005 caused Pierce to further question Curtiss competency.
First, Curtis was responsible for preparing a budget estimate for the Incentive Compensation Program for 2005 for Pierce to present at the Compensation Committee meeting in January 2005. Curtiss estimate was $19,000,000. The finance department also prepared a budget estimate for the meeting. Its estimate was $20,006,440. Curtis was responsible for reconciling the two estimates and making sure that they matched, but failed to do so prior to the committee meeting. As a result, Pierce and Coleman had to "scramble" to revise the document that human resources had prepared for the meeting so that their figures matched the figures from the finance department and had to ask the Compensation Committee to ignore a prior submission from human resources. Pierce was embarrassed by the incident and concerned about how it reflected on her department.
Second, Curtis neglected to update funding information in documents she prepared for the January 25, 2005 Compensation Committee meeting regarding the 2004 Retention Program despite having been provided updated information on December 29, 2004. The figures, which were to be used to prepare a proxy statement, were off by $150,000. Fortunately, the legal department caught the error before the proxy statement was prepared. Pierce described this as an "embarrassing error."
Third, according to Pierce, a draft memorandum that Curtis prepared on January 25, 2005, regarding compensation for a new board member was vague and incomplete because it failed to state that the board members compensation, which was expressed in annual figures, would be prorated for service prior to April 21, 2005, when the "new term starts" and failed to include compensation for participating in telephone meetings. Curtis had submitted the draft memorandum to Pierce, Coleman, and general counsel Witte for their review; Witte suggested the changes. Curtis revised the memorandum after consulting with Witte and Pierce.
Fourth, according to Pierce, Curtis failed to follow the schedule that she (Curtis) had established for communicating with managers and employees regarding the distribution of the Retention Program bonuses at the end of January 2005. According to the schedule, letters regarding the bonuses were to be distributed to the managers on January 25, 2005, the managers were to give the letters to their employees and advise their employees of the bonus awards between January 26 and January 28, 2005, and the bonuses would appear in the January 30, 2005 paychecks. According to Pierce, Curtis failed to provide the information to the managers on schedule, but the bonuses went out on time via direct deposit into employee bank accounts. On Saturday, January 29, 2005, an employee noticed an unexpected deposit into his bank account and reported it to the SVBs chief information officer, who became concerned that there was a payroll malfunction and contacted Pierce. Pierce investigated and confirmed that the bonuses had been paid before the managers could tell their employees about them. As part of her investigation, Pierce called Curtis at home that Saturday. Curtis testified that Pierce was "overly apologetic" about disturbing her when she was at home with her family. Although Curtis reassured Pierce that she was available if Pierce needed her, she did not think that Pierce believed she was available if Pierce needed her off hours. Pierce was criticized by the Steering Committee for the breakdown in communication over the Retention Program bonuses.
Fifth, Pierce disagreed with the manner in which Curtis handled an inquiry from an employee who, although eligible for the Retention Program bonus, did not receive one. The employee contacted Curtis on February 4, 2005, and asked why he was not nominated for a bonus and whether the bonus had been guaranteed in his offer letter. She told him that his offer letter said he was eligible for the bonus but that it was not guaranteed. She told him that the Steering Committee makes the decision each year and that he needed to ask his managers why he had not received a bonus. Curtis then sent a memo to Pierce and Coleman, advising them of the situation so they could give the managers a "Heads up." Pierce concluded that Curtis had exercised "extremely poor judgment" by confirming to the employee that he had not received a bonus, telling him his managers had decided not to give him a bonus, and suggesting he talk to them. Both Pierce and Coleman stated that Curtis should have told the employee she would look into the situation and then called his managers, to give them "the opportunity to communicate with [the employee] proactively," rather than "[c]reate a situation in which they could . . . have been blindsided" by a disappointed or disgruntled employee.
According to Pierce, Curtis also made mathematical errors, did not understand the formula for valuing stock options, misspelled "Black-Scholes" (a term of art for compensation professionals), "prepared sloppy and difficult to read compensation documents for [the] Steering Committee," and was late in submitting compensation information on more than one occasion. Pierce testified that Curtis gave the consultant for the carried interest plan bad data that resulted from a mathematical error Curtis had made. Chris Edmonds-Waters, the Director of Organization Effectiveness, who was part of the human resources department, testified that Curtis was often the last to respond to requests for information and that he would have to contact her after she had missed a deadline. Wilcox, the CEO, thought Curtiss work product was sloppy and that the compensation portion of human resources was ineffective in the fall of 2004. He complained that there was no clearly defined document defining SVBs compensation programs and had the impression that Curtis did not understand their programs to the extent they were documented.
SVB awarded Curtis a Retention Program bonus of $5,253.67 on January 28, 2005. The bonus was for work done in 2003 and 2004. The purpose of the Retention Program bonuses was to reward good performance, with the goal of retaining good employees.
On Sunday, February 6, 2005, Pierce sent an e-mail to Coleman stating: "I have pondered all weekend the issue related to [Curtis] and in my view her performance will not improve, the reputation risk to the team is substantial, and I have no confidence in her ability. I am inclined to terminate her tomorrow but I want your input. My opinion is that Sue [Garcia] and Marla [Clark] can meet our needs with your leadership, but I want to make sure you support this decision." Coleman responded that he had also been thinking about terminating Curtis. He stated: "I think that if we were to let [Curtis] go, we would be ok. My sense is that Sue would feel that this would give her greater opportunity and visibility, that Marla would continue to develop, and that if we truly did find that we needed the additional hands in compensation (of which Im not convinced), we could easily hire a junior analyst for less than half of what were paying [Curtis]. Or we could use the headcount for additional support . . . in other areas." He also stated that he liked Curtis "very much personally," and that it is "always a sad day when it comes to this."
On Monday, February 7, 2005, Pierce and Coleman met with Curtis and terminated her employment with SVB. Pierce discussed terminating Curtis with Edmonds-Waters shortly before meeting with Curtis. He told her that if she wished to take that course of action, he would support it. Pierce set forth the following reasons for the termination in a memorandum: "failure to meet position requirements despite prior coaching sessions and feedback on issues," and failure to improve and meet expectations regarding "accuracy, attention to detail, leadership and customer service." The memorandum included specific examples of Curtiss performance deficiencies. With regard to leadership deficiencies, Pierce stated, "As the leader of the compensation team you are expected to lead discussions related to compensation programs and to serve as the company expert. Instead, you often defer to others such as finance (the recent Direct Drive meetings, the Stock Option meetings), legal (stock options), me (RP meetings) or consultants (the Carried Interest plan). The result is that you are not perceived as an expert or a valued source of information or strategic guidance." Pierce agreed that Curtis could stay through the end of the week; Curtiss last day was February 11, 2005.
According to Pierce and Coleman, during the termination meeting, Pierce asked Curtis what she would like Pierce to say to their team members about Curtiss departure. Pierce told Curtis that if she did not have a specific message, she (Pierce) would send out a general message saying that Curtis left to pursue other opportunities. Curtis stated that she was interested in scaling back to more flexible, part time consulting work. According to Curtis, after she asked Pierce how she was going to announce this to the department, Pierce suggested they tell the staff that Curtis had decided to spend more time with her family.
On February 10, 2005, Curtis sent an e-mail to her coworkers with "Farwell" in the subject line. She told them she was leaving SVB and stated, "The decision was rather sudden and has to do with family responsibilities. I am needed more at home right now than I am at work."
The following day, Pierce sent an e-mail to the human resources staff, stating "Terri has been pondering the question of work-life balance for some time and she is interested in returning to a consulting role that enables her more flexibility. . . . This will provide her more time with family, a chance to work on projects of substance while not managing the daily activities of a compensation team, and the opportunity to take longer breaks between projects than a full-time employee schedule permits."
Curtis was 41 years old when she left the company. After Curtis left, Sue Garcia, who was 56 years old, assumed most of Curtiss day-to-day responsibilities. Coleman, who was 37 or 38 years old at the time of the termination, assumed those duties that involved communications with the Board of Directors. In March 2006, Garcia was promoted to compensation manager, Curtiss old position.
Curtis testified that Pierce always assumed the worst about her. For example, with regard to the problems with the budget estimates, Pierce assumed Curtiss estimate was wrong, when it was actually more accurate than the finance departments estimate. Curtis got the impression that Pierce wanted someone available to her "24/7" and that Pierce believed that Curtis was not able to do that.
Procedural History
I. Pleadings
On February 1, 2006, Curtis filed a discrimination charge with the Department of Fair Employment and Housing. She alleged that SVB had discriminated against her on the basis of her age and gender. After receiving a right to sue letter, Curtis filed the instant action in the superior court.
On April 12, 2006, Curtis filed a complaint alleging three causes of action: (1) gender discrimination; (2) age discrimination; and (3) wrongful termination in violation of public policy. In her third cause of action, Curtis alleged that she was terminated to avoid paying her a performance bonus and to prevent her stock options from vesting. Curtis alleged that SVB "committed the acts described in [the] Complaint oppressively, fraudulently and maliciously," and claimed that she was therefore entitled to an award of punitive damages. The sole named defendant was SVB.
SVB filed its answer on May 1, 2006.
II. SVBs Motion for Summary Judgment/Summary Adjudication
On March 1, 2007, SVB moved for summary judgment or summary adjudication. The motion was accompanied by the declarations of Pierce, Coleman, Garcia, and SVBs counsel, who authenticated excerpts from the depositions of Curtis and Coleman, and some of the exhibits to the depositions.
SVB argued that Curtis could not establish a prima facie case of age or gender discrimination because she could not prove that she was competently performing her job at the time of discharge and because she could not prove that SVB acted with a discriminatory motive. SVB argued that an age discrimination case typically entails a showing that the employee was replaced by a significantly younger person and that there was no such evidence in this case. SVB contended that there was no evidence of gender discrimination since Pierce had hired several women who were on maternity leaves, numerous other employees had had uneventful maternity leaves, and Pierce routinely made scheduling accommodations for employees with children. SVB told the court that Curtis had testified that she was not aware of any facts that caused her to believe that her age or gender were factors in her termination.
SVB also argued that it had legitimate non-discriminatory reasons for firing Curtis because Pierce "found her to be someone who made repeated, serious and embarrassing mistakes, and who showed inattention to detail, inaccuracy, poor leadership and bad judgment in a way that hurt the . . . departments reputation." SVB relied on the reasons for the termination set forth in Pierces termination memo, as well as the evidence from the depositions, declarations, and documents, and argued that Pierce "reasonably concluded that she could not afford to retain a highly compensated senior manager who could not be relied upon to perform and who repeatedly tarnished [the departments] reputation among senior SVB executives."
SVB argued that Curtis lacked the specific and substantial evidence needed to show that SVBs reasons for firing her were a pretext for discrimination. SVB repeated many of the arguments it made when discussing this prong of Curtiss prima facie case. SVB also asserted that there is no evidence that it had a motive to discriminate and that Curtis relied on her perceptions of the situation, had no facts that supported her discrimination claims, and never complained of age or gender discrimination while employed by SVB. SVB argued that Curtiss perceptions of gender discrimination were speculative and that Curtis could not rely on speculation to sustain her claims.
With regard to Curtiss third cause of action, SVB argued that her termination was not a violation of public policy because it did not affect the public at large and did not fit within one of the recognized categories of wrongful termination in violation of public policy claims. It argued that no public policy discouraged employers from terminating at-will employees simply because doing so might preclude certain forms of compensation or benefits.
SVB also argued that Curtis was not entitled to punitive damages.
III. Curtiss Opposition to Motion for Summary Judgment
On May 1, 2007, Curtis filed her opposition. It consisted of a memorandum of points and authorities, her response to SVBs separate statement, her own separate statement of additional undisputed evidence, and declarations from Curtis and her counsel, the latter authenticating excerpts from the depositions of Curtis, Pierce, Coleman, Garcia, Wilcox, Edmonds-Waters, and Marc Verissimo, as well as documents obtained through discovery.
Curtiss primary contention was that she performed competently and that the errors that Pierce complained of were not errors at all. She argued that SVB fired her because she was an easy target since she had just returned from maternity leave. She also argued that Pierce did not follow good human resources practices, since she failed to document the issues with Curtiss performance and failed to discuss Curtiss termination with anyone other than Coleman. She asserted that Pierces "self-serving" statement that she had lost faith in Curtis was false and a pretext. She argued that six out of seven employees that took family leave from their duties in SVBs human resources department were terminated or voluntarily left shortly after returning from leave.
IV. SVBs Reply
SVB filed its reply on May 10, 2007, which included a separate statement responding to Curtiss separate statement. The reply brief reiterated the arguments that Curtis failed to demonstrate a prima facie case because she could not show that her performance was competent or that SVB acted with a motive to discriminate illegally. SVB argued that it did not have to follow any protocol in firing Curtis because she was an at-will employee and argued that Pierce had discussed her decision to discharge Curtis with Edmonds-Waters. SVB argued that Curtis had returned from maternity leave before Pierce was hired and that absent evidence of discrimination, its actions should not be second-guessed.
V. Trial Court Ruling on Motion for Summary Judgment/Summary Adjudication
The court granted summary adjudication of each of Curtiss causes of action and consequently granted summary judgment. The court concluded that SVB had presented evidence that Curtis was discharged for a legitimate nondiscriminatory reason and that Curtis had not presented evidence from which a trier of fact could permissibly infer that the termination of Curtiss employment was motivated by her gender, her pregnancy, "her taking maternity leave," or her age. The court also held that Curtis had not identified a public policy that SVB had violated that was "both `substantial and `fundamental and rooted in constitutional or statutory law."
Discussion
I. Governing Legal Principles
We begin by summarizing the legal principles that govern motions for summary adjudication and summary judgment. We then discuss rules that are unique to summary adjudication and summary judgment in employment discrimination cases.
A. Standard of Review
We review an order granting summary judgment de novo, considering all the evidence set forth in the moving and opposition papers, except that to which objections have been made and sustained. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860 (Aguilar); Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 (Guz).) The trial courts ruling on a motion for summary adjudication, like that on a motion for summary judgment, is subject to this courts independent review. (Certain Underwriters at Lloyds of London v. Superior Court (2001) 24 Cal.4th 945, 972.) In determining whether summary judgment was proper, we analyze the propriety of granting summary adjudication with regard to each of Curtiss causes of action.
In undertaking our independent review, we apply the same three-step analysis used by the trial court. First, we identify the issues framed by the pleadings. Second, we determine whether the moving party has established facts justifying judgment in its favor. Finally, in most cases, if the moving party has carried its initial burden, we decide whether the opposing party has demonstrated the existence of a triable issue of material fact. (Varni Bros. Corp. v. Wine World, Inc. (1995) 35 Cal.App.4th 880, 886-887.)
In ruling on the motion, we must consider the evidence and inferences reasonably drawn from the evidence in the light most favorable to the party opposing the motion. (Aguilar, supra, 25 Cal.4th at p. 843.) In performing our de novo review, we view the evidence in a light favorable to the losing party (Curtis), liberally construing her evidentiary submission while strictly scrutinizing the moving partys (SVBs) own showing and resolve any evidentiary doubts or ambiguities in the losing partys favor. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768-769.)
B. General Rules Regarding Summary Judgment and Summary Adjudication
"A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty." (Code Civ. Proc., § 437c, subd. (f)(1).) The statute thus authorizes motions for summary adjudication that "reduce the costs and length of litigation" by limiting the substantive areas of dispute. (Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848, 1852; see also, Catalano v. Superior Court (2000) 82 Cal.App.4th 91, 97.)
Summary judgment motions serve a similar purpose — "to identify those cases in which there is no factual issue which warrants the time and cost of factfinding by trial." (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1735 (Martin).) Thus, the object of both procedures is "to cut through the parties pleadings" to determine whether trial is necessary to resolve their dispute. (Aguilar, supra, 25 Cal.4th at p. 843.)
Beyond their common purposes, summary adjudication motions are "procedurally identical" to summary judgment motions. (Dunn v. County of Santa Barbara (2006) 135 Cal.App.4th 1281, 1290.) A summary judgment motion "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).) To be entitled to judgment as a matter of law, the moving party must show by admissible evidence that the "action has no merit or that there is no defense" thereto. (Id., subd. (a).) A defendant moving for summary judgment meets this burden by presenting evidence demonstrating that one or more elements of the cause of action cannot be established or that there is a complete defense to the action. (Id., subd. (o)(2); Aguilar, supra, 25 Cal.4th at pp. 849-850, 853-854.) Once the defendant makes this showing, the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action or defense. (Code Civ. Proc., § 437c, subd. (o)(2); see Aguilar, at p. 850.) Material facts are those that relate to the issues in the case as framed by the pleadings. (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67.) There is a genuine issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. (Aguilar, supra, 25 Cal.4th at p. 845.)
C. Summary Judgment/Summary Adjudication in Employment Cases
Both federal and state laws prohibit employers from discriminating against employees on the basis of age or gender. (Gov. Code, §§ 12940, subd. (a), 12941, subd. (a); 42 U.S.C. § 2000e et seq. [Title VII of the Civil Rights Act of 1964, which prohibits gender-based discrimination]; 29 U.S.C. § 621 et seq. [Age Discrimination in Employment Act].)
It is undisputed that Curtis was an at-will employee of SVB. "An at-will employment may be ended by either party `at any time without cause, for any or no reason, and subject to no procedure except the statutory requirement of notice." (Guz, supra, 24 Cal.4th at p. 335, quoting Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 680.) "A fortiori, the employer may act peremptorily, arbitrarily, or inconsistently, without providing specific protections such as prior warning, fair procedures, objective evaluation, or preferential reassignment." (Guz, at p. 350.) "`While an at-will employee may be terminated for no reason, or for an arbitrary or irrational reason, there can be no right to terminate for an unlawful reason or a purpose that contravenes fundamental public policy." (Silo v. CHW Medical Foundation (2002) 27 Cal.4th 1097, 1104 (Silo).)
In cases alleging employment discrimination, we analyze the trial courts decision on a motion for summary judgment using a three-step process that is based on the three-stage burden-shifting test that was established by the United States Supreme Court for trying employment discrimination claims in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. (See, e.g., Guz, supra, 24 Cal.4th at pp. 354-355; Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 111 (Reeves).) The McDonnell Douglas test "reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially. Thus, by successive steps of increasingly narrow focus, the test allows discrimination to be inferred from facts that create a reasonable likelihood of bias and are not satisfactorily explained." (Guz, supra, 24 Cal.4th at p. 354.)
Under the first step of the McDonnell Douglas framework, the plaintiff may raise a presumption of discrimination by presenting a "prima facie case," the components of which vary depending upon the nature of the claim, but typically require evidence that "`(1) [the plaintiff] was a member of a protected class, (2) [the plaintiff] was qualified for the position he [or she] sought or was performing competently in the position . . . held, (3) [the plaintiff] suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance [that] suggests discriminatory motive." (Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 112, quoting Guz, supra, 24 Cal.4th at p. 355.) "A satisfactory showing to this effect gives rise to a presumption of discrimination which, if unanswered by the employer, is mandatory — it requires judgment for the plaintiff." (Ibid., citing Guz, supra, at pp. 355-356.) However, under the second step of the McDonnell Douglas test, "the employer may dispel the presumption merely by articulating a legitimate, nondiscriminatory reason for the challenged action. [Citation.] At that point the presumption disappears." (Ibid.) Under the third and final step of the McDonnell Douglas test, the "plaintiff must have the opportunity to attack the employers proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive." (Guz, supra, at p 356.)
As we recently stated in Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994, in a summary judgment motion in "an employment discrimination case, the employer, as the moving party, has the initial burden to present admissible evidence showing either that one or more elements of plaintiffs prima facie case is lacking or that the adverse employment action was based upon legitimate, nondiscriminatory factors. [Citations.] [¶] In meeting its initial burden the employer need not rely upon the premise that the plaintiff cannot demonstrate a prima facie case if the employer can set forth admissible evidence of its reasons, unrelated to unlawful discrimination, for the adverse employment action." (Hicks, supra, 160 Cal.App.4th at p. 1003, citing Guz, supra, 24 Cal.4th at p. 357.)
As this court explained in Martin, supra, 29 Cal.App.4th at page 1735, "[T]o meet an employers sufficient showing of a legitimate reason for discharge the discharged employee, to avert summary judgment, must produce `substantial responsive evidence that the employers showing was untrue or pretextual." "[T]o avoid summary judgment, an employee claiming discrimination must offer substantial evidence that the employers stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination." (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1004-1005 (Hersant).)
At this stage, it is not sufficient for an employee to make a bare prima facie showing or simply to deny the credibility of the employers witnesses or speculate as to discriminatory motive. (Hersant, supra, 57 Cal.App.4th at p. 1004; Wallis v. J.R. Simplot Co. (1994) 26 F.3d 885, 890; Martin, supra, 29 Cal.App.4th at p. 1735; Compton v. City of Santee (1993) 12 Cal.App.4th 591, 595-596.) Rather it is incumbent upon the employee to produce "substantial responsive evidence" demonstrating the existence of a material triable controversy as to pretext or discriminatory animus on the part of the employer. (University of Southern California v. Superior Court (1990) 222 Cal.App.3d 1028, 1039; Martin, supra, 29 Cal.App.4th at p. 1735.) "[S]peculation cannot be regarded as substantial responsive evidence." (Martin, supra, 29 Cal.App.4th at p. 1735; Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162.)
II. Analysis
A. Causes of Action for Age and Gender Discrimination
1. SVBs Evidence of Nondiscriminatory Reasons for Curtiss Termination
Like the trial court, we begin our analysis of the age and gender discrimination causes of action by reviewing SVBs evidence of its nondiscriminatory reasons for terminating Curtis. "[I]f nondiscriminatory, [the employers] true reasons need not necessarily have been wise or correct. [Citations.] While the objective soundness of an employers proffered reasons supports their credibility . . ., the ultimate issue is simply whether the employer acted with a motive to discriminate illegally. Thus, `legitimate reasons [citation] in this context are reasons that are facially unrelated to prohibited bias, and which, if true, would thus preclude a finding of discrimination." (Guz, supra, 24 Cal.4th at p. 358.) Examples of legitimate reasons are a failure to meet performance standards (Trop v. Sony Pictures Entertainment Inc. (2005) 129 Cal.App.4th 1133, 1149 (Trop)) or even a loss of confidence in an employee (Arteaga v. Brinks, Inc. (2008) 163 Cal.App.4th 327, 352.)
In its moving papers, SVB presented evidence that its reasons for terminating Curtis were unrelated to her age or gender and set forth several examples of deficiencies in Curtiss performance that led to her termination.
First, SVB produced evidence that Curtis was responsible for reconciling the human resources and finance department budgets for the Incentive Compensation Program prior to the January 2005 Compensation Committee meeting and failed to do so. Although Curtis attempted to create a factual dispute with regard to this reason for her termination by arguing that her estimate, not the finance departments, was correct, it was Curtiss undisputed failure to reconcile the two numbers that required Pierce and Coleman to scramble to revise the human resources estimate immediately before the meeting and that embarrassed the department. In addition, Curtiss failure to reconcile the budgets put Pierce in the position of potentially presenting erroneous information to the committee.
Second, SVB presented evidence that Curtis neglected to update funding information in documents she prepared for the same Compensation Committee meeting regarding the 2004 Retention Program, which were also used to prepare a proxy statement. As noted previously, the legal department caught the error.
Third, SVB produced evidence that Curtis made mathematical errors in her work. In her declaration, Pierce stated that Curtis made mathematical errors in "several reports" and "demonstrated a disturbing lack of attention to detail." In November 2004, Curtis sent Pierce a spreadsheet. Curtis attempts to dispute the assertion that she made mathematical errors in the spreadsheet by arguing that Pierce had looked at a reported field rather than a calculated field on the spreadsheet. However, in her e-mail response, Curtis agreed that there were mathematical errors "[i]n the Deferred Comp example" and "the market data" and stated, "I take both of these errors seriously as I know credibility is the price of entry for the Comp Function." SVB also produced evidence that Curtis made mathematical errors in the data she submitted to the consultant for the carried interest plan.
Fourth, SVBs showing included evidence that Curtis was late in submitting compensation information on more than one occasion. In her declaration, Pierce stated that Curtis was late in providing information to Edmonds-Waters for a training project. Edmonds-Waters testified that there were "various instances" where Curtis was the last to respond to requests for information and that he would have to contact her after she had missed a deadline. In Curtiss first performance review, Witte complained that Curtis failed "to deliver what she promises when she says she will" and stated that this had "been a particular problem . . . in getting materials ready for the Board and Compensation Committee." In her second performance review, Witte noted that Curtis still had problems "meeting commitments and deadlines, especially for deliverables to the Compensation and Steering Committees."
Fifth, there was evidence that Curtis lacked leadership and the necessary expertise for her position. In her termination memo, Pierce advised Curtis that "[a]s the leader of the compensation team, you are expected to lead discussions related to compensation programs and to serve as the company expert." Pierce complained that Curtis often deferred to others, including the finance department, the legal department, Pierce, and consultants, and that as a result, Curtis was "not perceived as an expert or a valued source of information or strategic guidance." According to Pierce, Curtis did not understand the correct formula for valuing stock options. Wittes first performance evaluation, which was done before Curtis went on maternity leave, contained similar criticisms of Curtiss leadership skills. Witte stated that Curtis failed to state her opinions, failed to speak up in meetings, failed to share her expertise with the company, and failed to communicate information about the programs she was responsible for to employees and managers. Pierce testified that when she (Pierce) was new to the company, she asked Curtis to explain the Retention Program to her so she could discuss it intelligently in a board meeting. Pierce repeated what Curtis had told her back to Curtis and Curtis assured her that she was correct. At the meeting, the CEO and one of the board members told Pierce that her representations about the program were incorrect. SVB also relied on evidence that Curtis misspelled "Black-Scholes," a term of art used by compensation professionals. Although a relatively minor point, it supports SVBs contentions that Cutis lacked expertise and exhibited a lack of attention to detail.
Sixth, SVBs showing included evidence that Pierce and Coleman disagreed with the manner in which Curtis handled the inquiry from the employee who, though eligible, did not receive a Retention Program bonus. Both Pierce and Coleman testified that Curtis exhibited poor judgment in the way she handled the incident.
Pierce stated that Curtis prepared "sloppy and difficult to read compensation documents for Steering Committee executives." Coleman found Curtiss reports "to be written at a level below what [he] would expect of a highly paid Compensation Manager" and complained that her work was "sloppy and/or disorganized." SVB also relied on evidence that Curtis made errors in her draft memorandum regarding the compensation for a new board member and that there were problems with the notices that were sent to eligible employees about the Retention Program bonuses distributed at the end of January 2005.
In her declaration in support of the summary judgment motion, Pierce stated that she "never gained confidence in Curtiss ability to perform consistently, reliably, or professionally." Pierce also stated, "I have no tolerance for any form of discrimination in carrying out my duties as Head of Human Resources and as a matter of personal belief. Curtiss age was not a factor in my decision to discharge her. Neither Curtiss family or marital status nor the fact that she had been out on maternity leave contributed in any way to my decision."
In our view, this evidence was sufficient to meet SVBs burden of presenting "evidence of such nondiscriminatory reasons that would permit a trier of fact to find, more likely than not, that they were the basis for the termination." (Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th 1088, 1097-1098 (Kelly).) The burden then shifted to Curtis to present substantial responsive evidence demonstrating the existence of a material factual dispute with regard to pretext or discriminatory animus on the part of SVB. (Martin, supra, 29 Cal.App.4th at p. 1735; see Guz, supra, 24 Cal.4th at p. 360.)
2. Curtiss Evidence of Pretext or Discriminatory Animus
Next, we determine whether Curtis has presented substantial evidence that SVBs stated nondiscriminatory reasons for terminating her were untrue or pretextual, or evidence that SVB acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude that SVB engaged in intentional discrimination. (Hersant, supra, 57 Cal.App.4th at pp. 1004-1005.)
"It is not enough for the employee simply to raise triable issues of fact concerning whether the employers reasons for taking the adverse action were sound. What the employee has brought is not an action for general unfairness but for . . . discrimination. . . . [That] an employee is [a] member of a protected class and has demonstrated triable issues concerning the appropriateness of the adverse action taken does not so readily demonstrate a discriminatory animus that is alone sufficient to establish the fact of discrimination or alone sufficient to avoid summary judgment." (Hersant, supra, 57 Cal.App.4th at p. 1005.) The employee "`cannot simply show that the employers 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. [Citation.] Rather the [employee] must demonstrate such weaknesses, implausibilities, inconsistencies, incoherences, or contradictions in the employers 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."" (Ibid.) In addition, "an employees subjective personal judgments of her competence alone do not raise a genuine issue of material fact." (Bradley v. Harcourt, Brace & Co. (9th Cir. 1996) 104 F.3d 267, 270.)
As this court observed in Hicks, supra, 160 Cal.App.4th at page 1005, that the employers "assessment was based upon subjective criteria does not, by itself, demonstrate pretext. It is true, . . ., that subjective evaluations may lend themselves to discriminatory abuse and should, therefore, be closely scrutinized. [Citation.] But there is nothing inherently suspect in the use of subjective criteria. `"Indeed, subjective evaluations of a job candidate are often critical to the decisionmaking process, and if anything, are becoming more so in our increasingly service-oriented economy.... Personal qualities ... factor heavily into employment decisions concerning supervisory or professional positions. Traits such as `common sense, good judgment, originality, ambition, loyalty, and tact often must be assessed primarily in a subjective fashion, [citation], yet they are essential to an individuals success in a supervisory or professional position." We find this authority pertinent, since Curtis was a human resources professional who was employed as a compensation manager. Moreover, Pierce testified that she never developed confidence in Curtis. However, that does not end our inquiry.
In this part of our analysis, we shall address Curtiss causes of action for age discrimination and gender discrimination separately, since each of these claims is based on a different set of facts.
a. Age Discrimination
To prevail on her cause of action for age discrimination, Curtis must prove that: (1) at the time of the adverse employment action, she was 40 years of age or older; (2) some adverse employment action was taken against her; (3) at the time of the adverse action she was satisfactorily performing her job; and (4) she was replaced by a significantly younger person. (Hersant, supra, 57 Cal.App.4th at p. 1003, citing Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 195-200.)
Curtis relies on two pieces of evidence to establish her age discrimination claim. First, Curtis argues that her job duties were taken over by Coleman, "a younger male." Second, Curtis relies on the following statement from Colemans e-mail responding to Pierces e-mail about terminating Curtis: "[w]e could easily hire a junior analyst for much less than half of what were paying [Curtis]."
Curtiss first assertion is not supported by the record. After Curtis left, Garcia assumed the bulk of Curtiss duties as the compensation manager. Coleman assumed those duties that involved communications with the board of directors. Curtis did not present any evidence that disputed this allocation of her former duties. Prior to Curtiss termination, Garcia was the compensation advisor and reported directly to Curtis. Garcia was 56 years old (15 years older than Curtis) when Curtis was discharged in February 2005. Garcia retained the title "compensation advisor" until March 2006, when she was promoted to compensation manager. At the time of Curtiss discharge, Coleman was 37 or 38 years old, three or four years younger than Curtis. Thus, the bulk of Curtiss duties were assumed by an older woman and some of her duties were assumed by a slightly younger man. There was no evidence that she was replaced by a "significantly younger person." (Hersant, supra, 57 Cal.App.4th at p. 1003.) In our view, this evidence does not give rise to an inference that Curtis was discriminated against because of her age.
With regard to the statement from Colemans e-mail that SVB "could easily hire a junior analyst for much less than half of what" it paid Curtis, we begin by reviewing the statement in context. In the e-mail, Coleman stated: "I think that if we were to let [Curtis] go, we would be ok. My sense is that [Garcia] would feel that this would give her greater opportunity and visibility, that Marla would continue to develop, and that if we truly did find that we needed the additional hands in compensation (of which I am not convinced), we could easily hire a junior analyst for less than half of what were paying [Curtis]. Or we could use the headcount for additional support that we know is needed in other areas. . . ." Thus, Coleman advised Pierce that they could cover Curtiss workload with existing staff. In fact, SVB did just that. There is no evidence that SVB hired a younger analyst to replace Curtis. In our view, the isolated comment about supplementing existing staff with a junior analyst is not "substantial responsive evidence" demonstrating the existence of a material triable controversy regarding pretext or discriminatory animus based on Curtiss age. We therefore conclude the trial court did not err when it granted summary adjudication of Curtiss second cause of action for age discrimination.
b. Gender Discrimination
Curtis contends both that there was direct evidence of gender discrimination and that gender discrimination could be inferred under the McDonnell Douglas test. We address each theory separately.
i. Direct Evidence of Gender Discrimination
Direct evidence is "evidence that directly proves a fact, without an inference or presumption, and which in itself, if true, conclusively establishes the fact." (Evid. Code, § 410.) For example in Godwin v. Hunt Wesson, Inc. (9th Cir. 1998) 150 F.3d 1217, 1221, a case cited by Curtis, one of the defendants managers stated that "he did not want to deal with another female" and thus directly suggested discrimination. In Trop, supra, 129 Cal.App.4th at page 1147, another case cited by Curtis, the court discussed direct evidence in the context of a pregnancy discrimination case. The court stated, "`Direct evidence is that which, "if believed by the trier of fact, will prove the particular fact in question without reliance upon inference or presumption." [Citations.] Direct evidence of discriminatory intent in pregnancy discrimination cases generally is in the form of an admission by a supervisor or decision maker that the employee was suspended because she was pregnant. [Citation.] To rise to the level of direct evidence of discrimination, . . . "isolated comments must be contemporaneous with the discharge or causally related to the discharge decision making process."" (Ibid., citing Kennedy v. Schoenberg, Fisher & Newman, Ltd. (7th Cir. 1998) 140 F.3d 716, 723.)
When the plaintiff presents direct evidence of discrimination, the McDonnell Douglas test does not apply. (Trans World Airlines, Inc. v. Thurston (1985) 469 U.S. 111, 121; Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 150-151, fn. 7.) While circumstantial evidence of pretense must be "specific" and "substantial" to create a triable issue with respect to whether the employer intended to discriminate on an improper basis, "[w]ith direct evidence of pretext, `"a triable issue as to the actual motivation of the employer is created even if the evidence is not substantial." [Citation.] The plaintiff is required to produce "very little" direct evidence of the employers discriminatory intent to move past summary judgment." (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 69 citing Chuang v. University of California Davis (9th Cir. 2000) 225 F.3d 1115, 1128.)
Curtis argues that she presented direct evidence of gender discrimination. However, in her opening brief, she mixes her arguments regarding direct evidence with her arguments that the evidence created an inference of discrimination in such a way that it is difficult to determine what evidence she is relying on as direct evidence of discrimination. The only evidence that she clearly describes as direct evidence of discrimination was Pierces suggestion, after she terminated Curtis, that Curtis advise her co-workers that she was leaving SVB to spend more time with her family. In our view, this is not direct evidence of discrimination based on the fact that Curtis was female, had taken a maternity leave, or was a mother of young children.
ii. Circumstantial Evidence of Gender Discrimination
On summary judgment, we "may not weigh the plaintiffs evidence or inferences against the defendants as though [we] were sitting as a trier of fact." (Aguilar, supra, 25 Cal.4th at p. 856.) We "must nevertheless determine what any evidence or inference could show or imply to a reasonable trier of fact." If the party opposing the motion produces no evidence allowing a reasonable fact-finder to find in his or her favor, then there is no triable issue. (Id. at pp. 856-857.) A showing that only gives rise to speculation or unreasonable inferences about the employers motivation does not create a triable issue. (Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1038.)
As we noted previously, that an employee who is a member of a protected class "has demonstrated triable issues concerning the appropriateness of the adverse action taken does not so readily demonstrate a discriminatory animus that is alone sufficient to establish the fact of discrimination or alone sufficient to avoid summary judgment." (Hersant, supra, 57 Cal.App.4th at p. 1005.) The employee "`cannot simply show that the employers 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. [Citation.] Rather the [employee] must demonstrate such weaknesses, implausibilities, inconsistencies, incoherences, or contradictions in the employers 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."" (Ibid.)
Curtis contends that she has met her burden of demonstrating pretext by producing evidence that the purported reason for her termination (poor performance) was factually untrue. She argues that her performance was more than satisfactory, that Pierce failed to document any performance issues before firing her, and that Pierce failed to discuss the termination with anyone who had knowledge of Curtiss performance.
Curtis relies primarily on the fact that she received a merit-based retention bonus one week prior to her termination. She argues that the amount of the bonus was determined by the Steering Committee, based on recommendations that were made by a subcommittee, and that Pierce served on the subcommittee. The record reflects that the bonus decision was based on Curtiss mid-year review in September 2004; that Curtiss mid-year review, which was favorable overall, was prepared by her previous supervisor, Witte; that the subcommittee met for one hour at the end of December 2004, during which time it "rubber-stamped" most of the 112 bonus recommendations; and that the amounts awarded were final as of January 5, 2005. The notice that Curtis received with her Retention Program bonus payment indicates that it was for work done in 2003 and 2004. That Pierce did not challenge her predecessors evaluation of Curtiss performance, which was completed before Pierce was employed by SVB, and did not block the bonus award that was based on that evaluation does not give rise to the inference that Pierces stated reasons for firing Curtis were untrue, especially in light of the fact that many of Curtiss errors occurred after the bonus was approved.
Curtis also contends that Pierce had recommended Curtis for a merit-based Incentive Compensation Program bonus, that the bonus was approved by the CEO, and that it would have been paid to Curtis if she had not been terminated prior to its distribution. This argument is not supported by citations to the record. While there was evidence in the record that Curtis had received an Incentive Compensation Program bonus in March 2004, there was no evidence that the company had approved Curtis for such a bonus in 2005. The only evidence relating to the 2005 Incentive Compensation Program bonus was: (1) to be eligible for the bonus, an employee had to be employed at the time the bonus was distributed and (2) after her termination, Curtis asked Pierce about the Incentive Compensation Program bonus and Pierce told Curtis she would not be eligible for the bonus because she had been terminated for poor performance.
Any statement in an appellate brief concerning matters in the record, whether factual or procedural and no matter where the record reference appears in the brief, must be supported by a citation to the record. The purpose of this requirement is to enable appellate justices and their staff attorneys to locate relevant portions of the record expeditiously without thumbing through and rereading earlier portions of a brief or the entire record. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2005) ¶ 9:36, p. 9-11 to 9-12 citing Cal. Rules of Court, rule 14(a)(1)(C) and City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239 [record citations in statement of facts at beginning of brief do not cure failure to include pertinent record citations in the argument portion of brief].)
As further evidence of pretext, Curtis argues that Pierce did not review her termination decision with anyone other than Coleman, that she "did not consult with the HR representative," and that she "did not follow [human resources] protocol" by documenting performance issues before terminating Curtis. It is unclear from the record whether Pierce, the Head of Human Resources, needed to consult with an "HR Representative." Assuming she did, Edmonds-Waters testified that he was the person managers came to when they had performance issues with an employee and were contemplating termination, that Pierce discussed Curtiss termination with him before meeting with Curtis, and that he supported Pierces decision. Furthermore, Pierce documented some of the reasons for the termination in her memo to Curtis and some of the issues that led to Curtiss termination were documented by Witte in his performance evaluations. Moreover, the absence of documentation does not necessarily raise an inference of pretext. (Hicks, supra, 160 Cal.App.4th at p. 1010.) The issue is unlawful discrimination, not whether the employer followed internal procedures or the best employment practices in carrying out the termination.
Curtis relies on the following evidence to show discriminatory animus: (1) "the only negative reference in [Curtiss] performance evaluations concerns her unavailability during her maternity leave"; (2) Curtis was criticized for deferring to a consultant that was hired to develop the carried interest plan while Curtis was on maternity leave; (3) after she was terminated, Pierce suggested that Curtis advise her co-workers that she was leaving to spend more time with her family; (4) Pierce apologized to Curtis for calling her at home on a Saturday to inquire about the problem with the Retention Program bonuses; and (5) Pierce communicated with Coleman via e-mail on a Sunday, the day before she fired Curtis.
The evidence does not support Curtiss assertion that "the only negative reference in [her] performance evaluations concerns her unavailability during her maternity leave." In her first performance review, which was done before Curtis went on maternity leave, Witte criticized Curtis for (1) failing to state her opinions, speak up in meetings, and share her expertise with the company; (2) failing to communicate information about the programs she is responsible for to employees and managers; and (3) failing "to deliver what she promises when she says she will." Curtiss second performance review, which was done shortly after Curtis returned from maternity leave, suggested Curtis needed improvement in two areas: "1) simple employee communication around compensation programs and 2) meeting commitments and deadlines, especially for deliverables to the Compensation and Steering Committees." After the second evaluation, Witte downgraded Curtiss overall evaluation from a "distinguished performer" to a "successful contributor." In summary, both of Curtiss performance reviews were critical of things she did while at work: failing to communicate necessary information, failing to share her expertise, and failing to meet commitments and deadlines. Thus, the record does not support Curtiss assertion that "the only negative reference in [her] performance evaluations concerns her unavailability during her maternity leave."
The second performance evaluation contained the following comments regarding Curtiss maternity leave: (1) under the goal "Define Integrated Compensation Programs," Witte wrote: "This went well, though [Curtiss] maternity leave certainly impacted the progress of some of the non-critical initiatives"; (2) under the goal "Design and implement Long-Term Compensation Programs," Witte wrote: "While [Curtis] was involved in some discussions around this in the spring, most of the work . . . has taken place while she was on maternity leave" and (3) in his closing remarks, Witte wrote: "[Curtis] played a huge role during the first half of the year as we rolled out a new and comprehensive approach to employee evaluation and compensation. Her understanding of the principles of compensation and management as well as her experience in implementing systems was instrumental to the success of the system. Her role was naturally diminished during the summer while she was on maternity leave." We do not read these comments as "negative" or critical of Curtis for taking maternity leave. They merely comment on the fact that Curtis was absent for a period of time and was not involved in some of the programs her department implemented during her absence. In our view, the inference that Curtis would have us draw from the references to her maternity leave in her second performance evaluation is not reasonable.
Curtis was criticized for a lack of expertise in the compensation area, as exhibited by the need to defer to others within the company, including the consultant that was hired to develop the carried interest plan. That Curtis was criticized for deferring to a consultant who happened to have been hired to move the plan forward during her maternity leave does not support a reasonable inference of discriminatory animus against Curtis for taking a maternity leave.
There is a factual dispute whether Curtis suggested Pierce tell their coworkers Curtis was leaving to spend more time with her family or whether Pierce suggested they take that approach. In our view, a triable issue with regard to this point is not material. In deposition, Curtis testified that it "sounded good" to tell people that she was leaving to spend more time with her family and that she preferred that to telling everyone that she had been fired. Even assuming Pierce made the suggestion, that Pierce suggested they tell Curtiss coworkers that she wanted to spend more time with her family rather than that she was fired for poor performance, does not support the inference that Curtis was terminated because of her gender or because she had taken a maternity leave.
Although Curtis testified that she had the impression Pierce wanted her to be available "24/7," there was no evidence that Curtis was asked to work nights or weekends or that she was ever criticized for being unavailable to Pierce. There was no evidence regarding the type of work schedule Curtis maintained or that she was criticized for not working longer hours. The evidence that Pierce apologized to Curtis for disturbing her at home on a Saturday or that Pierce and Coleman communicated on a Sunday is too speculative to support the inference that SVB discriminated against Curtis because she was female or because she had taken a maternity leave.
For all these reasons, we conclude that Curtis has not met her burden of producing substantial evidence that SVBs stated reasons for terminating her were untrue or pretextual or substantial evidence that SVB acted with a discriminatory animus, or a combination of the two. Consequently, the court did not err when it granted summary adjudication of Curtiss cause of action for gender discrimination.
B. Cause of Action for Wrongful Termination in Violation of Public Policy
To the extent that Curtiss third cause of action for wrongful termination in violation of public policy relies on her claims of age and gender discrimination, it fails.
Curtis also based this claim on the assertion that by terminating her employment in early February 2005, SVB denied her a bonus she would otherwise have received and the benefit of stock options that were about to vest. Curtis does not cite any legal authority that supports a claim of wrongful termination in violation of public policy on these grounds. On appeal, the appellant has the burden to provide reasoned argument and authority on every point raised. If none is furnished on a particular point, this court may treat it as forfeited and pass it without consideration. (People v. Stanley (1995) 10 Cal.4th 764, 793.) We therefore conclude that Curtis has forfeited he claim of wrongful termination in violation of public policy on this ground.
Even if we were to address the issue, we would conclude that Curtis could not state a cause of action on this ground. First recognized by the California Supreme Court in Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 178, the tort cause of action for wrongful termination in violation of public policy allows an employee to bring a tort cause of action against an employer who terminates an at-will employee on a ground that violates fundamental public policy. (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 887.) The exception is based on the principle that, although an employer may terminate an at-will employee for no reason, or any arbitrary or irrational reason, the employer has no power to terminate the employee for a reason contrary to the law or fundamental public policy. (Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1094, overruled on other grounds as stated in Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 80, fn. 6.) Despite broad acceptance of the public policy exception, "[t]he difficulty ... lies in determining where and how to draw the line between claims that genuinely involve matters of public policy, and those that concern merely ordinary disputes between employer and employee. This determination depends in large part on whether the public policy alleged is sufficiently clear to provide the basis for such a potent remedy." (Gantt, supra, 1 Cal.4th at p. 1090.)
To support a wrongful discharge claim, the policy must be "`(1) delineated in either constitutional or statutory provisions; (2) "public" in the sense that it "inures to the benefit of the public" rather than serving merely the interests of the individual; (3) well established at the time of the discharge; and (4) substantial and fundamental." (Phillips v. St. Mary Regional Medical Center (2002) 96 Cal.App.4th 218, 225-226, citing Stevenson v. Superior Court, supra, 16 Cal.4th at page 894, Gantt v. Sentry Insurance, supra, 1 Cal.4th at p. 1090, and other cases.)
Curtis has not articulated any constitutional or statutory provision that prohibits discharging an employee who may be entitled to a bonus in the near future or who has stock options that may vest shortly after the termination. In our view, the "policy" that SVB is alleged to have violated merely involves an ordinary dispute between employer and employee; it does not inure to the benefit of the public rather than serving merely the interests of the individual. We therefore conclude that Curtis has failed to state a cause of action for wrongful termination in violation of public policy.
For these reasons, we hold the court did not err when it granted summary adjudication of Curtiss third cause of action for wrongful termination in violation of public policy.
D. Conclusion
Since the court properly granted summary adjudication of Curtiss three causes of action, it did not err when it granted summary judgment.
DISPOSITION
The summary judgment is affirmed.
WE CONCUR:
Mihara, Acting P.J.
Duffy, J.