Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 1-08-CV130756.
PREMO, J.
Defendant Institute for the Future (hereafter, sometimes, IFTF) is a nonprofit research organization that is funded, in part, by the sale of memberships in different interest groups. Plaintiff Lea Gamble had a contract with defendant under which she sold memberships and provided marketing services. Defendant terminated plaintiff’s contract and plaintiff sued, alleging causes of action for wages withheld, sexual harassment, and retaliatory discharge. The trial court granted defendant’s motion for summary judgment. Plaintiff appeals from the judgment.
We conclude that the undisputed facts show that plaintiff has no claim for unpaid wages, the alleged harassment is not actionable sexual harassment, and plaintiff failed to raise a triable issue of fact related to defendant’s legitimate, nondiscriminatory reason for terminating her contract. Accordingly, we shall affirm.
I. Procedural Background
The operative complaint contains six causes of action. The first through third pertain to unpaid compensation in various forms. Plaintiff’s theory in the first cause of action is that defendant intentionally misclassified her as an independent contractor, thereby avoiding payment of the employer’s share of Social Security and Medicare taxes (31 U.S.C. § 3101), employee welfare benefits, and retirement contributions. Plaintiff claims damages of $17,465 for self-employment taxes and $19,148 in medical and dental premiums she paid during the relevant time periods. She seeks an additional $60,000, the amount she claims defendant would have contributed to a retirement plan on her behalf if she had been considered an employee. The second cause of action alleges that defendant had failed to pay a commission that came due after termination. The third cause of action under Business and Professions Code section 17200 relates solely to the first two claims.
Plaintiff’s fourth, fifth, and sixth causes of action pertain to plaintiff’s sexual harassment claim. The fourth cause of action alleges that plaintiff’s supervisor subjected her to unwanted attention, creating a hostile work environment in violation of the California Fair Employment and Housing Act. (Gov. Code, § 12900 et seq. (FEHA).) The fifth cause of action, also based upon the FEHA, alleges that defendant terminated plaintiff’s contract in retaliation for her complaints about harassment. The sixth cause of action alleges common law wrongful termination in violation of public policy.
In granting defendant’s motion for summary judgment, the trial court found that plaintiff could not prove her claim for taxes and benefits because her contracts did not call for such payments. As to the second cause of action, the trial court concluded that plaintiff’s contract did not entitle her to the commission she claimed. Because the third cause of action was based upon the first two, it failed as well.
With respect to the fourth cause of action, the trial court found that the conduct plaintiff described was not sufficiently severe or pervasive to rise to the level of actionable sexual harassment. (Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 142-145 (Mokler).) The fifth and sixth causes of action failed because plaintiff did not produce evidence to show that the person responsible for making the decision to terminate the contract was aware of her prior complaints of harassment and because defendant had established a legitimate, nondiscriminatory reason for termination. Judgment was entered December 28, 2009. This timely appeal followed.
II. Standard of Review
“The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) Summary judgment is properly 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).)
We review an order granting summary judgment under the de novo standard of review. (Coral Construction, Inc. v. City and County of San Francisco (2010) 50 Cal.4th 315, 326.) “It is axiomatic that we review the trial court’s rulings and not its reasoning.” (People v. Mason (1991) 52 Cal.3d 909, 944.) Thus, we will affirm a trial court’s decision granting summary judgment if the decision is correct, regardless of the trial court’s reason for it. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 18-19.)
In undertaking our de novo review, we identify the issues framed by the pleadings, determine whether the moving party has established facts justifying judgment in its favor, and 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.) A defendant moving for summary judgment establishes facts justifying judgment in its favor 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 it. (Code Civ. Proc., § 437c, subd. (o)(2); Aguilar, supra, 25 Cal.4th at pp. 849-850.) We view the evidence in a light most favorable to the losing party, resolving any doubts or ambiguities in her favor. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768-769.)
In the present case, because plaintiff’s complaint alleges different types of wrongdoing, we consider the factual and legal bases for each type of claim separately, beginning with the facts related to plaintiff’s first cause of action.
III. Taxes and Benefits
A. Facts
Plaintiff began working for defendant as a consultant in 1999 selling memberships in defendant’s Health Horizons group on a commission-only basis. In late 1999 or early 2000, the parties considered creating a position for her. In a proposal dated January 31, 2000, plaintiff suggested a compensation scheme that included a base salary and range of commissions. The proposal acknowledged, “With this proposal, I would still be an independent contractor not an FTE with all the benefits and other associated expenses to [defendant].”
FTE stands for “full time equivalent.” (A Dictionary of Public Health. Ed. John M. Last, Oxford University Press, 2007. Oxford Reference Online. Administrative Office of the California Courts. [as of Feb. 7, 2011].) The parties use the term as shorthand for “full time employee.”
A letter agreement dated February 7, 2000, set forth a one-year experiment. The letter commenced by stating, “Lea, we are committed to this experimental position for a one-year time frame to determine if this position meets both our needs but our expectation is that this would become a long-term relationship.” Plaintiff was to be engaged “on a non-exclusive basis” as “Director of Strategic Partnerships” with the “specific goal” of selling defendant’s programs, improving how defendant presented itself to clients, and providing feedback from clients. The letter went on: “You will be engaged as an independent contractor and your total compensation will consist of a combination of base compensation and commission as a percentage of sales. We agree to the compensation structure which you proposed....” There followed a compensation scheme showing plaintiff’s “target compensation” to be $150,000 per year with a “base salary” equal to 45 percent of target ($67,500) and commissions ranging from 9 percent to 15 percent, depending upon the amount of revenue generated. Plaintiff was to receive the base compensation in 12 equal monthly payments. She would receive commission compensation for any client that signed a letter of agreement during the term of the contract or within 30 days thereafter.
During negotiations for the 2001 contract, plaintiff again submitted a proposal with a compensation schedule that did not include benefits. In a March 6, 2001 email to defendant’s management personnel she wrote: “While I am sensitive to the concern that ‘I am making more money than anyone else at IFTF, ’ I think it is important to factor in the fact that I do not receive a pension, medical insurance, paid vacation, paid holidays, or paid sick leave.” A couple weeks later she wrote, “As an independent contractor, I do not receive benefits....”
Plaintiff signed letters of agreement each year from 2001 through 2007. Each agreement repeated that plaintiff was engaged “on a non-exclusive basis” as “Director of Strategic Partnerships” and that she was to be “engaged as an independent contractor” and that her “total compensation” was to consist of base pay and commission. Like the first letter, each subsequent letter set forth a detailed compensation schedule. The last agreement in the series applied to the 2007 calendar year and included the specification that the “contract will be self renewing unless either party takes exception to the terms before the annual renewal.” Base compensation was to be $81,000 with commission rates for Health Horizons projects ranging from 10 percent for sales up to $599,999 to 15 percent for sales of $1 million or more. Plaintiff’s total compensation under the contracts for the years 2002 through 2007 ranged from $155,673 to $288,025. She did not receive any employee benefits and paid her own self-employment taxes.
A fellow worker, Sean Ness, was also engaged by defendant on a base salary and commission basis. His compensation included medical, dental, and vision benefits and employer contributions to a tax deferred retirement plan. (26 U.S.C. § 403(b).) Ness testified that “all full-time employees” received retirement benefits after one year of service.
Defendant’s executive director, Marina Gorbis, terminated plaintiff’s contract effective June 20, 2008.
B. Issues
Plaintiff argues that there is a material factual dispute over whether she was properly classified as an independent contractor. Defendant maintains that the status issue is immaterial. We agree with defendant. As to the claim for taxes, the first question is whether a private party may sue an employer directly for the failure to pay payroll taxes. As to the claim for benefits, since defendant argues that plaintiff waived benefits when she signed the contracts, the threshold question is whether an employee may waive the right to fringe benefits. Both questions may be decided as a matter of law without reference to plaintiff’s classification.
C. Discussion
1. Taxes
Plaintiff cannot prove her claim to amounts she paid in self-employment taxes because the federal tax laws preempt such claims. In Umland v. PLANCO Financial Services, Inc. (3rd Cir. 2008) 542 F.3d 59, 64 (Umland), the plaintiff made the same claim plaintiff makes here, namely, that the defendant had wrongly classified her as an independent contractor, causing her to be liable for two times the amount of Social Security and Medicare taxes for which she would have been liable had defendant paid its share as her employer. The appellate court noted that the Internal Revenue Service (IRS) has a detailed administrative scheme for dealing with such claims. There is a process by which a taxpayer may require the IRS to determine whether a person is an employee or an independent contractor. (Id. at p. 65.) There are also processes for filing an administrative claim for a refund of self-employment taxes (26 U.S.C. § 6511(a)) or a tax refund suit against the government (28 U.S.C. § 1346). The plaintiff had done neither. (Umland, supra, at p. 65.) The appellate court concluded that permitting the plaintiff to proceed with her suit would interfere with the administrative scheme for handling such disputes. “Individuals would have less incentive to follow IRS procedures if they could simply bring common-law claims for misclassification as an independent contractor in state court (or in federal court sitting in diversity). We therefore hold preempted by IRS regulations state-law claims for damages based on classification as an independent contractor rather than an employee.” (Ibid.; see also McDonald v. Southern Farm Bureau Life Ins. Co. (11th Cir. 2002) 291 F.3d 718, 726.)
The parties did not raise the preemption doctrine below or on appeal. Because we find the issue to be dispositive, we have requested and received supplemental briefing on the point.
Plaintiff argues that Umland was wrongly decided because the state and federal tests for determining who is an employee are substantially the same. The argument is beside the point. As Umland observed, state laws are preempted when they actually conflict with federal law. (Umland, supra, 542 F.3d at p. 64.) State laws that stand as an obstacle to the accomplishment and execution of the full purposes and objectives of the federal law, or those that interfere with a comprehensive administrative scheme, are examples of actual conflicts. (Ibid.) A patchwork of state court decisions pertaining to employers’ federal tax obligations would undoubtedly interfere with the established administrative scheme for resolving such disputes. Finding no basis for distinguishing Umland, we conclude that plaintiff’s claim for taxes is preempted by federal law.
2. Employee Benefits
Plaintiff seems to acknowledge that she purported to waive any claim to fringe benefits when she signed her several contracts with defendant. She argues only that employee benefits are not waivable, citing the rule of Civil Code section 3513: “Any one may waive the advantage of a law intended solely for his benefit. But a law established for a public reason cannot be contravened by a private agreement.” In support, plaintiff cites Henry v. Amrol, Inc. (1990) 222 Cal.App.3d Supp. 1, Supp. 6-7, which held that Labor Code section 227.3, which prohibits use-it-or-lose-it vacation policies, was a statute “ ‘established for a public reason’ ” and, therefore, Civil Code section 3513 precluded its waiver. She also refers to Grier v. Alameda-Contra Costa Transit Dist. (1976) 55 Cal.App.3d 325, 335-336, which held that the right granted by Labor Code section 2928 (prohibiting employers from docking a worker’s pay in excess of the time the worker actually missed) made penalty provisions in a collective bargaining agreement invalid. (See also De Haviland v. Warner Bros. Pictures (1944) 67 Cal.App.2d 225, 234-235 [statutory limits on personal service contracts not waivable]; Benane v. Internat. Harvester Co. (1956) 142 Cal.App.2d Supp. 874, Supp. 878-879 [statutory right to paid time off to vote not waivable].) Not one of these cases supports plaintiff’s point because plaintiff has not identified any statute granting employees the right she claims here.
Plaintiff cites 29 United States Code section 1052(a)(1)(A), which states: “No pension plan may require, as a condition of participation in the plan, that an employee complete a period of service with the employer or employers maintaining the plan extending beyond the later of the following dates [¶] (i) the date on which the employee attains the age of 21; or [¶] (ii) the date on which he completes 1 year of service.” Plaintiff claims that this provision means that any employee who completes a year of service is entitled to participate in the plan. That is not what the section says. The section refers to the specific plan requirements. In the present case there is no evidence of what the plan requirements were, let alone that plaintiff was excluded based upon her years of service. Rather, the evidence is that plaintiff waived benefits in exchange for higher pay, which she was entitled to do under the Employee Retirement Income Security Act (ERISA), the federal law of which 29 United States Code section 1052 is a part. (See Laniok v. Advisory Committee (2nd Cir. 1991) 935 F.2d 1360 [ERISA does not prohibit an individual from waiving the right to participate in a pension plan provided the waiver is knowing and voluntary].) Indeed, it is well established that employers may exclude categories of employees from their ERISA plans. (Capital Cities/ABC, Inc. v. Ratcliff (10th Cir. 1998) 141 F.3d 1405, 1409.)
Plaintiff cites Daughtrey v. Honeywell, Inc. (11th Cir. 1993) 3 F.3d 1488, in support of her argument that the matter must be remanded for resolution of the classification issue. The case does not assist her. In Daughtrey, the plaintiff had worked as an employee for Honeywell, was laid off, and then signed a consulting agreement which stated that she was an independent contractor, that she was not an employee, and that she was not “entitled to any benefits or privileges provided by Honeywell to its employees.” (Id. at p. 1490.) After Honeywell terminated the consulting agreement, the plaintiff sued, claiming that she was entitled to certain ERISA benefits because she was, in fact, an employee. The appellate court held that status issue was a material factual dispute because plaintiff would have been entitled to employee benefits if she had actually been an employee. (Id. at p. 1493.) The Ninth Circuit resolved a similar case the same way. In Vizcaino v. Microsoft Corp. (9th Cir. 1997) 120 F.3d 1006, 1012, the court held that the plaintiffs would have been entitled to the benefits of all other employees if they were, in fact, employees and not independent contractors. In both cases, however, waiver was not an issue.
In both Daughtrey and Vizcaino, the defendants had withheld benefits based upon the plaintiffs’ classification as independent contractors. The Vizcaino court recognized that it “could, perhaps, be argued” that statements in the contracts stood on their own as a waiver of benefits, regardless of the plaintiffs’ true status as employees. (Vizcaino v. Microsoft Corp., supra, 120 F.3d at p. 1012.)The court concluded, however, that that would have been an incorrect interpretation of the agreements. Indeed, Microsoft assured the court that it was not asserting waiver as a defense. (Ibid.) The exact opposite is true here.
Defendant did not withhold benefits based upon plaintiff’s purported classification as an independent contractor. It withheld benefits based upon its individually negotiated agreements with plaintiff by which she agreed to forego benefits in exchange for higher commissions. Plaintiff implicitly concedes as much, contending only that her waiver was invalid as contrary to law or public policy. Since we know of no law or policy to support the contention, we reject it. Accordingly, the trial court properly granted defendant’s motion for summary adjudication of the first cause of action.
Plaintiff had originally claimed four years of taxes and benefits but the trial court granted defendant’s motion to strike claims barred by the three-year statute of limitations. (Code Civ. Proc., § 338, subd. (a), Lab. Code, § 201.) Because we find no triable issue of fact with respect to the first cause of action, we need not reach plaintiff’s statute of limitations argument.
IV. Withheld Commission and Unfair Business Practices
A. Facts
The agreement in force when plaintiff received notice of termination gave plaintiff credit for commissions, “upon invoicing the client or during the period of thirty days after your contract terminates with no continuation contract.” On June 11, 2008, plaintiff wrote to executive director Gorbis and chief financial officer Lynne Postlethwaite, setting forth the projects for which she believed commissions were owed or would be owed within 30 days following her termination date of June 20, 2008. Among the projects she listed was an American Heart Association (AHA) project with projected revenue of $277,000. Postlethwaite responded with a letter describing four categories of projects. The first category listed sales for which defendant agreed that plaintiff was due a commission. The second category “recognizes your initial efforts but also takes into account the fact that much additional client work has and will need to be done to bring the actual work in. It also allows for you to receive commission on work that will come more than 30 days after your contract termination date.” That second category included the AHA sale, for which Postlethwaite indicated that defendant would pay the full commission if the sale came in by June 30, 2008, and half the commission if it came in thereafter. The AHA sale was completed but not until November 2008. Plaintiff received no commission for this sale.
B. Issue
The trial court concluded that plaintiff’s contract did not provide for commissions on work that came in after 30 days following termination and, since the AHA work came in well beyond that limit, defendant did not owe plaintiff anything for it. Plaintiff argues that the trial court erred in disregarding the Postlethwaite letter, which plaintiff claims is a modification of the contract. Defendant argues that the letter is not an enforceable obligation because there was no consideration. Thus, the issue is whether the evidence could support a finding that the statement in the Postlethwaite letter--that plaintiff would receive half the commission for work that came in after the date specified in the contract--was an enforceable modification of the contract terms.
C. Discussion
To be enforceable as a contract a promise requires consideration (Civ. Code, § 1550, subd. 4.), or a substitute such as promissory estoppel (C & K Engineering Contractors v. Amber Steel Co. (1978) 23 Cal.3d 1, 7). Consideration in the usual sense means something that is bargained for and given in exchange for the promise. (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 249.) “ ‘ “In the words of section 75 of the Restatement of Contracts (com. b): ‘Consideration must actually be bargained for as the exchange for the promise.... The existence or non-existence of a bargain where something has been parted with by the promisee or received by the promisor depends upon the manifested intention of the parties.’ ” ’ ” (Saks v. Charity Mission Baptist Church (2001) 90 Cal.App.4th 1116, 1135.)
The Postlethwaite letter states that defendant will pay plaintiff something to which she was not entitled under her contract, namely, a partial commission on work that came in beyond the deadline specified in the contract. There is no evidence that the parties had bargained for a modification to the contract or that plaintiff gave anything in exchange for the extra payment. Thus, the half-commission described in the letter is not legally enforceable because it was not given in a bargained-for exchange of consideration.
Plaintiff argues that the Postlethwaite letter shows that the extra payment was intended to be given in exchange for past consideration. Citing Haase v. Cardoza (1958) 165 Cal.App.2d 35, 38, plaintiff maintains that past consideration is sufficient to make a promise enforceable. The argument fails on both points. The letter does not state that any exchange was intended. It merely states that the commission schedule set forth in the letter “allows for you to receive commission on work that will come more than 30 days after your contract termination date.” While the payment “takes into account” work plaintiff had already done, there is no dispute that work was part of the work expected by the unmodified contract. The extra half-commission described in the letter was a nice gesture but it was not given in exchange for past consideration.
As to the second point, past consideration cannot support a contract. (See Leonard v. Gallagher (1965) 235 Cal.App.2d 362, 373 [“It appears to be the universal rule throughout the United States that past consideration will not support a promise which is in excess of the promisor’s existing debt or duty.”]; accord Passante v. McWilliam (1997) 53 Cal.App.4th 1240, 1247.) Haase v. Cardoza is not to the contrary. The case recites a rule that “past consideration” may make an informal promise enforceable. But the court was not required to consider what that rule meant because it found that the promise sought to be enforced stood utterly alone and was not enforceable. (Haase v. Cardoza, supra, at p. 38.) “A case is not authority for points not decided.” (Paterno v. State of California (1999) 74 Cal.App.4th 68, 88.)
Since plaintiff has failed to produce evidence of an enforceable modification of her contract, the trial court correctly granted summary adjudication of the second cause of action. And, since the third cause of action is premised solely upon the first two, the trial court properly granted summary adjudication of it, as well.
V. Sexual Harassment, Retaliation, and Wrongful Discharge
A. Facts
1. Problems with Defendant’s Health Program
We now turn to the facts related to plaintiff’s fourth, fifth, and sixth causes of action, viewing the evidence in the light most favorable to plaintiff.
On March 31, 2008, Gorbis held a meeting with all health program personnel. In the memo that was discussed at the meeting Gorbis explained that “the team has not been functioning well.” Problems identified in November 2007 had not been resolved and, as a consequence, Gorbis decided to “re-start” the team. Among other changes, Gorbis appointed Melodie McBride acting director of the team. McBride was to evaluate the team, all contracts, and all ongoing projects with health clients. McBride would be making recommendations for changes in staffing to improve sales. Her review was to include a review of plaintiff’s contract.
Gorbis’s memo explained, “I do not know what the final structure of the Health practice will look like and who will lead the Health team. All possibilities are on the table at this point. I do not have any preconceived ideas or plans and am confident that the right solution will emerge as the result of the assessment process.” Gorbis warned: “I do not know what positions and roles will evolve as a part of the new team. All I can guarantee is that there will be a Health team and a Health practice at IFTF. [¶] I appreciate that the last few months have not been easy for some of you and you may not want to go through another three months of uncertainty. If that is the case, please let me know.... [¶] Similarly, if you decide to stay through the process, and after the assessment it is determined that your position is either substantially re-structured or eliminated, we will work out a separation agreement at that time. I want to emphasize that at this point we do not have plans to eliminate any positions and I hope that we will be able to keep all of you at IFTF, but I cannot make any guarantees.”
Following review of plaintiff’s contract, McBride told Gorbis that she thought plaintiff’s commission structure was excessive. Plaintiff’s sales for 2008 were lower than they had been in the past. In late April or early May 2008, McBride told plaintiff, who was still working under the 2007 contract, that she was “an aberration” and that they needed to discuss her compensation.
Although the precise nature of the problems to which Gorbis referred in her memo to staff is not spelled out in the record, it is clear that, in addition to financial concerns, Gorbis was concerned about avoiding conflicts of interest and improving relationships within the health team. Her memo reminded those who decided to stay on that there were “essential principles of collaborative work” that applied to everyone, including that they, “Share in good faith all information related to projects, budgets, clients, etc., ” and “Refrain from back channel communications about team or personnel issues.” The conflict of interest theme is reflected in the fact that, on March 19, 2008, defendant had sent all its workers a form employment agreement, which, among other things, conditioned further employment on the employee’s agreement to certain provisions relating to intellectual property, conflicts of interest, and outside consulting. Plaintiff received that agreement and sent it on to her attorney for review. On May 2, 2008, plaintiff received a nearly identical form entitled “Consultant Agreement.” Postlethwaite’s accompanying email informed plaintiff that execution of the agreement was required by May 9, 2008. Plaintiff never signed either agreement.
2. Plaintiff’s Work to Create AccelusHealth
During her review of the health team projects, McBride learned about an entity called AccelusHealth. AccelusHealth came out of a contract defendant had with the Centers for Disease Control and Prevention (CDC). The CDC had contracted with defendant for a number of services, including the creation of a public health “collaboratory.” The purpose of the so-called collaboratory was to bring together corporate expertise and funding with CDC expertise and resources to focus on public health issues. The collaboratory was intended to be a separate nonprofit entity focusing upon accelerating innovation in the global health economy.
Plaintiff worked with Jody Ranck and Cesar Castro to create the collaboratory, which they named AccelusHealth. In an AccelusHealth concept paper, plaintiff was listed as the “Managing Director--Strategic Relations.” Ranck was president. On October 1, 2007, plaintiff mentioned AccelusHealth in an email to a friend at New England Healthcare Institute (NEHI). Plaintiff explained that the new entity would be separate from defendant and that plaintiff would soon be raising funds with the new entity full time. Since she and Ranck did not want funds to go through IFTF, she asked if they could funnel money bound for AccelusHealth through NEHI. An AccelusHealth strategic plan dated February 6, 2008, lists possible collaborators and business partners, nine of which were then defendant’s clients.
3. Gorbis’s Response When She Learned About AccelusHealth
The collaboratory envisioned by the CDC contract was always presumed to be a separate entity. Workshops were held at IFTF where AccelusHealth was mentioned. At the February 2008 board meeting, the plan to create a separate entity was described in the board materials. Nevertheless, after McBride learned about AccelusHealth, she asked plaintiff if she knew anything about it and plaintiff said “no.” McBride asked her if she had a business plan and plaintiff directed her to Ranck.
On May 8, 2008, Gorbis telephoned board member Ellen Marram and expressed concern that she, Gorbis, did not know the details of the CDC project. On May 9, McBride obtained a copy of the AccelusHealth concept paper. She passed the paper along to Gorbis who, in turn, wrote to Ranck, noting that she was “surprised to find out that this is something you and [plaintiff] have been discussing with clients without previously discussing it with me....” Gorbis directed Ranck to disclose all the details of the project.
On May 12, 2008, McBride obtained a copy of an AccelusHealth strategic plan listing defendant’s clients as collaborators and business partners. She forwarded it to Gorbis, whereupon Gorbis directed McBride to tell plaintiff to cease all communication about the CDC collaboratory and AccelusHealth absent approval from Gorbis or McBride. Also on May 12, Gorbis contacted others on the leadership team, alerting them to what was going on and noting, “This may also affect [plaintiff] and her relationship with IFTF as she and [Ranck] were working hand-in-hand on this [AccelusHealth].” Ranck resigned the following day.
By now plaintiff knew her contract was in jeopardy. During the month of May 2008 she told two or three people that she was concerned that defendant was “getting ready to fire” her. On May 14, plaintiff mused in an email to Ranck, “Think [McBride’s] going to give me notice today?” The following day, May 15, plaintiff contacted board member Marram to report that McBride had been sexually harassing her.
4. The Alleged Sexual Harassment
Defendant had hired McBride in or about March 2008. Within weeks, McBride was appointed acting director of the Health Horizon’s team and became plaintiff’s supervisor. McBride singled plaintiff out shortly after McBride was hired when she sent plaintiff an email stating that she was “excited” to be working with her. According to plaintiff, the first time McBride sexually harassed her was in April 2008. McBride telephoned plaintiff “late in the evening” before defendant’s 40th anniversary party and, after discussing some business, asked plaintiff what she would be wearing to the party. McBride said, “I wish we could preen in front of a mirror for an hour before the party.” Plaintiff understood this to mean that McBride wanted to stand in front of a mirror and look at what each other was wearing “as if we were girl friends.”
The second incident occurred the night of the party. During dinner McBride turned to plaintiff and mouthed the words, “Let’s go to the bathroom.” Plaintiff was “really uncomfortable with that” and thought it was inappropriate. Plaintiff admitted that her female friends had made the same request at times in the past. Plaintiff got up and followed McBride to the ladies room, which, she was “relieved” to discover, was a single restroom so that the two never entered it together. Plaintiff had “no idea” if McBride had a romantic interest in her but it had “crossed [her] mind.”
Also on the night of the 40th anniversary party, plaintiff overheard McBride say to another woman, “You have legs” or “Look at your legs. They’re so athletic.” Plaintiff admitted that the remark was not sexually harassing to her. She did not know if McBride had a sexual interest in the other woman.
Other instances plaintiff claims were sexually harassing were McBride’s “periodic comments” about what plaintiff was wearing. The comments “seemed to be too frequent” and made plaintiff uncomfortable. Plaintiff could not recall the precise comments but generally they were about how nice plaintiff looked. Plaintiff admitted that she was a good dresser but insisted that McBride was not complimenting her.
There were other comments that plaintiff characterized as harassing, although they were not made directly to her. One time after defendant’s annual retreat, plaintiff and McBride were chatting with Rod Falcon and Paul Gerrard. Gerrard, who was from England, worked for Humana, an IFTF client. Gerrard asked Falcon how he had come to be familiar with London. Falcon responded that he had been there doing research and “had shadowed young British--Londoners, children. And Melodie McBride basically said, Well, isn’t that illegal?” Plaintiff understood that McBride was accusing Falcon of being a pedophile. Also at that meeting, Gerrard was talking about going out that night. McBride remarked, “If you’re interested in a place with women--you know what I mean--I can tell you where to go.” Plaintiff was “shocked, mortified, horrified, speechless.”
The last incident allegedly occurred on May 15, 2008. It was a hot day and plaintiff was wearing a skirt with heels. McBride looked at plaintiff, then “sidled up” to her and said, “You have legs.” Plaintiff was offended and “got the hell away.” She thought McBride “might be coming on” to her. Plaintiff could not recall if she had worn a skirt in McBride’s presence before.
5. Plaintiff’s Report to Marram and Termination
On May 15, 2008, plaintiff sent an email to Marram saying that she wanted to talk about “a situation” with Humana. She called Marram that night and told her that McBride had made “sexual innuendos and inappropriate comments” to Gerrard and “inappropriate suggestive comments” toward plaintiff, too. Plaintiff said she believed McBride was jeopardizing defendant’s relationship with Humana. She also communicated the latter concern to Lawrence Wilkinson, president of defendant’s board.
On May 16, 2008, McBride discovered that plaintiff had registered the AccelusHealth domain name and apprised Gorbis of the discovery. Gorbis contacted plaintiff on May 18 and asked to speak with her about the CDC project and potential conflicts of interest. Plaintiff was not then available.
The next day, May 19, 2008, Gorbis decided to terminate plaintiff’s contract. Gorbis believed plaintiff had acted improperly with respect to the AccelusHealth project. Although she should have know that the CDC collaboratory was intended to be a separate entity, Gorbis viewed the entity described by the AccelusHealth documents as a potential IFTF competitor and was concerned that plaintiff had not kept her apprised of her work on the project. Gorbis also questioned plaintiff’s cost to the organization and she was concerned about plaintiff’s failure to sign the consulting agreement.
Postlethwaite arranged for a conference call with plaintiff for May 20, 2008. Prior to the scheduled call, Postlethwaite emailed a letter to plaintiff giving her notice that her contract was being terminated. At the beginning of the call, plaintiff immediately recited her complaints about McBride. Gorbis told her, “That’s not the purpose of the call, ” and then said, “We are terminating your contract.”
B. The Fourth Cause of Action--Sexual Harassment
1. Issue
Under the FEHA, it is unlawful for an employer, because of “sex..., to harass an employee or applicant.” (Gov. Code, § 12940, subd. (j)(1).) There are two types of sexual harassment. The first is quid pro quo harassment, where a term of employment is conditioned upon submitting to unwelcome sexual advances. (Mogilefsky v. Superior Court (1993) 20 Cal.App.4th 1409, 1414.) The second, which is the type at issue here, is hostile work environment. (Ibid.) The trial court held that the acts of harassment plaintiff described were not sufficiently severe or pervasive to constitute the hostile work environment form of sexual harassment. Plaintiff disagrees with the ruling. The issue is whether the undisputed facts could support a finding that plaintiff suffered the hostile work environment form of sexual harassment.
2. Discussion
A hostile work environment is 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.’ ” (Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17, 21.) “ ‘ “[W]hether an environment is ‘hostile’ or ‘abusive’ can be determined only by looking at all the circumstances [including] the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” [Citation.]’ [Citation.] Therefore, to establish liability in a FEHA hostile work environment sexual harassment case, a plaintiff employee must show she was subjected to sexual advances, conduct, or comments that were severe enough or sufficiently pervasive to alter the conditions of her employment and create a hostile or abusive work environment.” (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 283.) Moreover, “[t]o be actionable, ‘a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.’ ” (Id. at p. 284.)
Sexual harassment is also prohibited by title VII of the federal Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.). Since the antidiscriminatory objectives and overriding public policy purposes of title VII and the FEHA are identical, it is appropriate to consider federal cases interpreting title VII when analyzing sexual harassment claims under the FEHA. (Mogilefsky v. Superior Court, supra, 20 Cal.App.4th at p. 1416, fn. 5; Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, 516-518.)
Turning to the case at hand, we conclude that none of the allegedly offensive conduct meets the requirements for a sexual harassment claim. The “isn’t that illegal” remark to Falcon was not directed to plaintiff and was not hostile or abusive toward plaintiff because of her sex. Plaintiff admits that the comment about a coworker’s legs was not harassing to her. Thus, the comments at issue are the “wish we could preen, ” “let’s go to the bathroom, ” and “you’ve got legs” comments, the offer to tell Gerrard where he could find a place with women, and nonspecific comments upon plaintiff’s appearance.
Objectively, the comments are not offensive. They are not severe in that they are not even remotely harassing, hostile, abusive, or vulgar. That which was said did not ridicule or insult plaintiff. The Gerrard comment aside, all the remarks were complimentary or non-sexual, friendly overtures one woman might make to another. The Gerrard comment is the only one that contains any objective sexual innuendo and that was mild, at best. The comments were not accompanied by physical touching and were not physically threatening. They did not pervade the workplace. There were at most three or four specific comments and some nonspecific comments on how nice plaintiff looked, spread out over two months. Thus, no reasonable person would find them hostile or abusive.
It is something of a stretch to conclude that the comments were subjectively offensive as plaintiff maintains. Plaintiff points out that McBride used a sexually suggestive tone of voice that makes the conduct more egregious than it appears in writing. But even so, there is no evidence that plaintiff actually understood that McBride intended the remarks to be taken in a sexual or sexually abusive way. Plaintiff had “no idea” if McBride was interested in her sexually. That she “might be coming on” to plaintiff was something that only “crossed [her] mind.” As to the remarks about plaintiff’s appearance, plaintiff was unable to recall any of the words McBride had used. Thus, in addition to the fact that the comments are objectively inoffensive and trivial, most of them were not subjectively offensive, either, since plaintiff admitted she had “no idea” what was intended. There is no evidence at all that any of the conduct interfered with plaintiff’s work performance or altered the conditions of her work relationship.
Plaintiff argues that the comments were particularly bothersome since McBride was plaintiff’s supervisor. We recognize that personal overtures from her newly appointed supervisor could have made plaintiff uncomfortable. Any unwanted personal attention can do that. But the attention plaintiff describes does not come close to the sexual harassment the FEHA was designed to remedy.
Our assessment of the evidence is in line with a number of cases finding alleged harassing conduct too trivial or sporadic to support a sexual harassment claim. In Hughes v. Pair (2009) 46 Cal.4th 1035, 1040, the defendant made several sexually suggestive comments during a single telephone conversation with the plaintiff. Later that night at a museum reception, the defendant told the plaintiff, “ ‘I’ll get you on your knees eventually. I’m going to fuck you one way or another.’ ” (Ibid.) The Supreme Court held that the conduct was not severe or pervasive. “To be pervasive, the sexually harassing conduct must consist of ‘more than a few isolated incidents.’ ” (Id. at p. 1048.) And, although “an isolated incident of harassing conduct may qualify as ‘severe’ when it consists of ‘a physical assault or the threat thereof, ’ ” the defendant’s remark, “made in the presence of other people attending a private showing at a museum, would not plausibly be construed by a reasonable trier of fact as a threat to commit a sexual assault on plaintiff.” (Id. at p. 1049.)
Another case reaching a similar result is Mokler, supra, 157 Cal.App.4th 121, upon which the trial court relied in this case. In Mokler, the defendant’s alleged harassment occurred on three occasions over a five-week period and involved no physical threats. The defendant called the plaintiff an “ ‘aging nun’ ” and pulled her to his body asking, “ ‘Did you come here to lobby me?’ ” (Id. at p. 144.) Later he told her that she had nice legs and looked her up and down. (Ibid.) Another time he put his arm around her, demanded her exact home address, and rubbed against her breast. When the plaintiff tried to discuss business, the defendant responded, “ ‘Why... do you have to do something special for Mexicans?’ ” (Ibid.) Mokler held, “[T]hese acts of harassment fall short of establishing ‘a pattern of continuous, pervasive harassment’ [citation], necessary to show a hostile working environment under FEHA.... [¶] Taken as a whole, the foregoing acts demonstrate rude, inappropriate, and offensive behavior” but not actionable sexual harassment. (Id. at p. 145; see also Haberman v. Cengage Learning, Inc. (2009) 180 Cal.App.4th 365 [affirming summary judgment where sexual harassment claim was based upon nonphysical, off-hand remarks with sexual overtones]; Quinn v. Green Tree Credit Corp. (2nd Cir. 1998) 159 F.3d 759, 768 [defendant’s statement that plaintiff had been voted the “ ‘sleekest ass’ ” and single deliberate act of touching plaintiff’s breasts with papers insufficient to establish title VII sexual harassment claim]; Weiss v. Coca-Cola Bottling Co. of Chicago (7th Cir. 1993) 990 F.2d 333, 337 [no actionable sexual harassment where supervisor told plaintiff how beautiful she was, repeatedly asked her out, tried to kiss her on three separate occasions, put “ ‘I love you’ ” signs on her work area, and touched her shoulder several times].)
There was no discriminatory intimidation, ridicule, or insult here. The trivial and sporadic comments plaintiff describes are not actionable sexual harassment. Thus, the trial court did not err in granting summary adjudication as to this cause of action.
C. The Fifth and Sixth Causes of Action--Retaliation and Wrongful Discharge
1. Issue
Plaintiff’s theory on the fifth cause of action is that she was terminated in retaliation for reporting the sexual harassment. In order to establish a prima facie case of retaliation under the FEHA, plaintiff must show (1) she engaged in a “protected activity, ” (2) defendant subjected her to an adverse employment action, and (3) a causal link between the protected activity and defendant’s action. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) Although we have found that the conduct of which plaintiff complained is not actionable, her report of it was protected activity if she reasonably believed she was reporting a violation of the FEHA. (Id. at p. 1043.) We shall assume, for present purposes, that plaintiff could meet that test and establish the first element of her claim. The second element is undisputed. Accordingly, the only issue is whether there is a material factual dispute pertaining whether plaintiff’s report of harassment caused defendant to terminate her contract.
2. Discussion
The trial court found that plaintiff could not establish a prima facie case of retaliation because Gorbis did not know about plaintiff’s report of harassment before she made the decision to terminate. The court also found that defendant established a legitimate reason for its action.
Under the classic McDonnell Douglas analysis, the plaintiff’s presentation of a prima facie case of retaliation gives rise to a presumption that the employer acted unlawfully. The presumption affects the burden of production in that it requires the employer to dispel the presumption by articulating a legitimate, nondiscriminatory reason for its action. (Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 111-112.) If the employer does that, the presumption disappears and the plaintiff must prove, by a preponderance of the evidence, the existence of discriminatory animus and a causal link between it and the adverse action she suffered. (Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 715.)
McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802–804.
In the context of an employer’s summary judgment motion, the employer, as the moving party, “has the initial burden to present admissible evidence showing either that one or more elements of the plaintiff’s prima facie case is lacking or that the adverse employment action was based upon legitimate, nondiscriminatory factors.” (Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 1003.) Where, as here, the employer meets its initial burden by demonstrating a legitimate reason for the adverse action, “the plaintiff then has the burden to produce ‘substantial evidence that the employer’s stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination.’ ” (Ibid.) That is, in order to survive a summary judgment motion, the plaintiff must produce evidence that creates a material factual dispute pertaining to the employer’s asserted reason, evidence sufficient to support “a reasoned inference that the challenged action was the product of discriminatory or retaliatory animus.” (Mamou v. Trendwest Resorts, Inc., supra, 165 Cal.App.4th at p. 715; see also, Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S. 133, 148.)
We shall accept, for argument’s sake, that plaintiff was able to establish a prima facie case with respect to causation. Plaintiff produced evidence that she told Marram about the harassment, Marram then spoke with Wilkinson, and Wilkinson then spoke with Gorbis just days before Gorbis made the termination decision. This evidence, accepted as true, supports an inference that Gorbis had been told about the allegations just days before she decided to terminate plaintiff’s contract. But defendant produced evidence to show that the termination was for reasons completely unrelated to the harassment allegations. Gorbis had been concerned that plaintiff was not forthcoming with AccelusHealth details and that the project was not being developed with defendant’s best interests in mind. She was also concerned about plaintiff’s cost to the organization and her failure to sign the consulting agreement.
Plaintiff does not dispute that she had been working on AccelusHealth without giving Gorbis the details or that some of the details suggested that AccelusHealth might end up competing with defendant. Plaintiff does not dispute that her sales were low for 2008 or that she had delayed signing the consulting agreement. Plaintiff’s only evidence is that defendant’s management team knew that the CDC contract would result in a new and separate entity. Workshops were held at IFTF and board members had been apprised that the plan was to create a separate entity. But that does not controvert defendant’s evidence that Gorbis did not know the details of what plaintiff had been working on or that plaintiff had failed to share those details as she had been directed to do in March of 2008, when Gorbis warned all staff to be open about their projects and work with clients.
Plaintiff argues that, since Gorbis and defendant’s board knew that the CDC contract called for the creation of a separate entity, Gorbis’s concern with the AccelusHealth details was a pretext for the retaliatory termination. The argument works only if Gorbis’s concern arose after learning about the harassment. But the evidence shows that Gorbis expressed her concern, and the possibility that plaintiff’s contract would be terminated on account of it, before plaintiff mentioned the alleged harassment to Marram. Gorbis stated on May 9, 2008, that she was surprised plaintiff had been working on the project “without previously discussing it with me.” On May 12, she told defendant’s leadership team about what was going on and noted, “This may also affect [plaintiff] and her relationship with IFTF.” Plaintiff did not mention her allegations to Marram until May 15, which was the day after she wondered in an email to Ranck whether she was about to be fired.
Thus, the only evidence of causation is the temporal relationship between the termination and plaintiff’s report of harassment to Marram. Temporal proximity can justify an inference of causality in some cases but it does not do so here. In Reeves v. Sanderson Plumbing Products, Inc., supra, 530 U.S. at page 148, the United States Supreme Court explained that even where a plaintiff makes out a prima facie case of retaliation, “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.” This is such a case. The foregoing evidence shows that plaintiff’s relationship with defendant was well along the path to termination by May 12, 2008, three days before plaintiff allegedly reported harassment, and that plaintiff expressed her concern that she was about to be terminated just the day before she made that report. On these facts, no reasonable jury could find that defendant’s real reason for terminating plaintiff’s contract was retaliatory. Accordingly, the trial court did not err in granting summary adjudication of the fifth cause of action. Since the sixth cause of action is based upon the same facts, the court was correct in summarily adjudicating it, as well.
VI. Disposition
The judgment is affirmed. Defendant shall recover its costs on appeal.
WE CONCUR: Rushing, P.J., Elia, J.