Opinion
H050645
12-27-2023
MICHELLE HOCKER, Plaintiff and Appellant, v. VARIAN MEDICAL SYSTEMS, INC., et al., Defendants and Respondents.
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 20CV369668)
BROMBERG, J.
Plaintiff Michelle Hocker sued her former employer, defendant Varian Medical Systems, Inc. (Varian), for age discrimination and related claims. The trial court granted Varian's motion for summary judgment and entered judgment in its favor. We affirm.
We take the following facts from the parties' separate statements of undisputed facts and the evidentiary materials submitted or admitted and uncontested in the parties' pleadings. (See Thompson v. Ioane (2017) 11 Cal.App.5th 1180, 1186, fn. 4; Gibbs v. Consolidated Services (2003) 111 Cal.App.4th 794, 797, fn. 3.)
A. Hocker's Employment at Varian
In July 2017, Varian hired Hocker, then 57 years old, as a marketing communications specialist. At the end of the 2018 fiscal year, Hocker's then manager, Kathy Bettman, rated Hocker as demonstrating either "proficiency" or "strength" across all areas in her performance review. In or around March 2019, Bettman retired, and Hocker began reporting to Maye Chua, a senior marketing manager.
In or around April 2019, while discussing the hiring of another employee, Chua reportedly told Hocker, "I like to hire younger people because they have better ideas." Hocker was offended by this statement but did not immediately report it. However, the working relationship between Hocker and Chua was apparently strained, with both parties voicing complaints to Rosemarie Smith-Wood, a senior director of marketing and brand, regarding each other's performance.
On July 3, 2019, Chua sent an email to Tiffany Yu, a human resources business partner, with the subject line "managing out," evidently referring to Hocker. Yu responded that "the first step would be to create a Performance Improvement Plan [PIP] for the employee" and directed Chua to draft PIP documentation for review by her manager and approval by HR and Legal prior to meeting with Hocker.
Chua did not follow these directions. Instead, on July 12, 2019, Chua sent Hocker an email with the subject line "Performance improvement plan: Michelle Hocker." The email stated, "as discussed during our 1:1 yesterday, we'll start a performance improvement plan with the goal of helping you perform up to the expectations of your role in the marketing communications group at Varian." Chua forwarded a copy of this email to Smith-Wood. This PIP was not reviewed or approved by either HR or Legal, and a few days later Yu and Chua informed Hocker that she had not been placed on an "official PIP."
On July 15, 2019, Hocker met with Yu to voice concerns regarding her relationship with Chua and to get clarity regarding the PIP. During that meeting, Hocker informed Yu that Chua had said that Hocker was "too old/old-fashion[ed]." Afterwards, Smith-Wood proposed to Yu that Hocker report to her (Smith-Wood) rather than Chua to "help [Hocker] be more efficient while providing [Chua] a reprieve from the less than productive interactions."
On August 12, 2019, Hocker met with both Yu and Smith-Wood. During this meeting Hocker discussed her concerns about Chua's management and her difficulty working with Chua, as well as Chua's alleged comment that she liked to hire younger people. Hocker said that she no longer wanted to report to Chua and that she felt Chua discriminated against her based on age. Following this meeting, Yu forwarded Smith-Wood a copy of the July 2019 "managing out" email exchange between Yu and Chua.
Subsequently, Smith-Wood asked Chua about her alleged age-related statements, which Chua denied making. Smith-Wood also asked members of Chua's staff whether they had experienced any age-related comments, which they stated they had not. Although Smith-Wood informed her manager, Kathy Conner, about Hocker's complaint, Varian did not conduct any further investigation into Hocker's allegations.
In August 2019, Hocker began informally reporting to Smith-Wood instead of Chua. Smith-Wood acknowledged that she remained "cognizant" of the gaps in Hocker's performance, as documented by Chua, but did not implement a PIP during her supervision of Hocker. No formal change to the reporting structure or applicable organization chart was implemented, due in part to other pending changes in the marketing group.
B. The MarCom Reorganization
Smith-Wood began working at Varian in April 2019, and her manager Kathy Conner began a few months later, around June 2019. Shortly after Conner's hiring, around July 2019, Smith-Wood proposed restructuring the marketing and communications, or MarCom, group to "be more efficient." Those plans were placed on hold until January or February 2020, when Smith-Wood and Conner began discussing restructuring roles in the MarCom group, with the goal of adding more "strategic thinkers." In furtherance of this, Smith-Wood and Conner presented a reorganization model to Varian's executive leadership, which approved the reorganization in early 2020. As originally conceptualized, this reorganization did not include a reduction in force. It also retained Hocker in her role as MarCom specialist, reporting to Chua.
In or around the spring and summer of 2020, Smith-Wood began implementing the restructuring of the MarCom group, including creating a new Strategic Marketing Advisor role. Smith-Wood determined that Hocker was not a good fit for this new role because she possessed tactical, rather than strategic, skills. When Smith-Wood told Hocker about this assessment, Hocker disagreed, believing that she possessed strategic skills but had not had opportunities to demonstrate them.
C. The Reduction in Force
About a week after discussing her strategic skills with Smith-Wood, Hocker was laid off. During the same time frame but separate from the MarCom reorganization, Varian had begun implementing a reduction in force to reduce expenses because of the impact of the COVID-19 pandemic.
On May 1, 2020, Varian distributed a "Discussion Guide" to Yu and select others regarding the need to engage in cost-savings actions, including preparing for a reduction in force. Later that month, Smith-Wood learned that she needed to layoff four individuals in her group. To help select these individuals, Varian distributed an "RIF ID Tool." This tool directed decision-makers to "identify 3-5 criteria you will look at to rank employees" and noted that such criteria may include "Skill Set Requirements for the current or job or redefined organization," "Performance Requirements," and "Behavior/Conduct Requirements."
In selecting employees for layoff, Smith-Wood evaluated their skill sets and the goals of her reorganization. Smith-Wood ranked Hocker and three other employees using the criteria of "strategic thinker," "strategic planner," and "adaptability." In so doing, she did not consult with anyone else, including Chua. Instead, Smith-Wood based her rankings on her own observations and conversations with the employees throughout the year and into May 2020. Conner, Smith-Wood's manager, agreed with these assessments.
After ranking the strategic and adaptability skills of Hocker and three other employees, Smith-Wood selected Hocker as one of the four employees to layoff. On June 24, 2020, Smith-Wood and Hocker discussed Hocker's strategic skills, but Smith-Wood did not disclose that she had already selected Hocker for layoff. On July 1, 2020, Varian informed Hocker that she was being laid off as part of Varian's reduction in force due to cost-cutting measures, rather than her performance.
D. The Proceedings Below
Following her termination, Hocker sued Varian and various Doe defendants asserting claims of age discrimination, retaliation, failure to prevent discrimination, and wrongful termination in violation of public policy. Broadly, Hocker alleged that a supervisor (Chua) made an ageist comment to her and that Varian subsequently selected Hocker for inclusion in layoffs in violation of the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.).
Varian subsequently moved for summary judgment on all claims. On July 21, 2022, the trial court granted Varian's motion. As to the age discrimination and retaliation claims, the court found that Varian had met its initial burden of establishing a legitimate, nondiscriminatory and non-retaliatory rationale for Hocker's termination and that Hocker had not raised a triable issue of material fact rebutting this rationale. In light of Hocker's failure to establish unlawful age discrimination or retaliation, the court also ruled that Hocker failed to raise any triable issues concerning her claim for failure to prevent discrimination or retaliation. Similarly, because Hocker's first three causes of action failed, the court ruled that Hocker's final claim for wrongful termination failed as well.
The trial court entered judgment on October 13, 2022, and Hocker filed a timely notice of appeal on December 5, 2022.
II. Discussion
We review orders granting summary judgment de novo, applying the same rules and standards that govern a trial court's evaluation of summary judgment motions. (See, e.g., Hobbs v. City of Pacific Grove (2022) 85 Cal.App.5th 311, 321.) We conclude that the trial court correctly granted summary judgment on each of Hocker's claims.
A. Age Discrimination
Although Hocker makes out a prima facie case of age discrimination, Varian presented evidence of a legitimate, nondiscriminatory reason for terminating Hocker, and Hocker failed to raise a triable issue of pretext rebutting that reason.
1. The McDonnell Douglas Framework
FEHA makes it unlawful for an employer to discharge a person from employment "because of . . . age." (Gov. Code, § 12940, subd. (a).) In determining whether employment discrimination has been proven through circumstantial evidence, California has adopted the burden-shifting framework established in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 (McDonnell Douglas). (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 214; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 (Guz) [age discrimination].)
Analysis under the McDonnell Douglas framework proceeds in three stages. First, the plaintiff bears the burden of establishing a prima facie case of discrimination. (Guz, supra, 24 Cal.4th at p. 354.) Because the prima facie case is intended only to eliminate the "most patently meritless claims," this burden is" 'not onerous,'" and plaintiffs need merely raise an inference that the employer's actions, if not explained, likely reflect discriminatory intent. (Id. at pp. 354-355.) In particular, a plaintiff must present evidence that "(1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive." (Id. at p. 355)
Second, if a prima facie case of discrimination is established, the burden shifts to the employer-defendant to rebut the presumption. The employer may do this by producing evidence "that its action was taken for a legitimate, nondiscriminatory reason." (Guz, supra, 24 Cal.4th at pp. 355-356.)
Third, if the employer meets its burden and produces evidence of a legitimate, non-discriminatory reason for its action, the burden shifts back to the plaintiff, who may "attack the employer's proffered reasons as pretexts" or offer other evidence of discriminatory intent. (Guz, supra, 24 Cal.4th at p. 356.) For example, "evidence of dishonest reasons, considered together with the elements of the prima facie case, may permit a finding of prohibited bias." (Ibid.) However, to rebut evidence of a legitimate, non-discriminatory reason, a plaintiff" 'cannot simply show that the employer's decision was wrong or mistaken'" because the ultimate issue is" 'whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent.'" (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1005 (Hersant).) In other words, "there must be evidence supporting a rational inference that intentional discrimination, on grounds prohibited by the statute, was the true cause of the employer's actions." (Guz, at p. 361, italics omitted.)
2. Prima Facie Case
Varian did not dispute that Hocker can establish a prima facie case of age discrimination, and it is clear that she can do so. Because she was born in 1959, Hocker was over 60 years old when laid off in July 2020, and therefore within the class protected against age discrimination. (See Gov. Code, § 12926, subd. (b) [defining age to mean "the chronological age of any individual who has reached a 40th birthday"].) Hocker presented evidence that she was qualified for her position and, indeed, earned positive performance reviews. She was laid off. And similarly situated younger workers with less experience at Varian were retained.
3. Nondiscriminatory Reason
Varian, however, presented evidence of a legitimate, non-discriminatory reason for laying off Hocker during the reduction in force. In particular, Varian submitted evidence that, as early as the spring and summer of 2019, Smith-Wood and Conner were contemplating a reorganization of the MarCom group to focus on strategic planning, rather than project management and implementation. This proposed reorganization, which was approved in early 2020, originally did not contemplate any reduction in force and included a place for Hocker. However, shortly after the reorganization was approved, the COVID-19 pandemic hit, and Smith-Wood was directed to select four employees for inclusion in a reduction in force. Smith-Wood included Hocker in that group after determining that Hocker ranked significantly lower on the strategic thinker, strategic planner, and adaptability criteria that Smith-Wood used to force rank Hocker and other similarly situated employees. Varian presented evidence that Smith-Wood chose these criteria based on the group's contemplated shift towards a more strategic focus and applied the criteria based on her personal observations of Hocker's performance, having begun supervising her the previous August, as well as conversations with Hocker and other employees regarding their respective skillsets.
By presenting this evidence that Hocker was included in the reduction in force because of her relative lack of strategic skills, Varian satisfied its burden of producing a legitimate, non-discriminatory reason for the adverse employment action against Hocker.
Hocker argues that Varian failed to demonstrate a legitimate, non-discriminatory reason for her termination because it relied on inadmissible evidence. In particular Hocker contends that the documents submitted by Varian in its summary judgment motion were not properly authenticated. Hocker admits, however, that Varian authenticated the documents in its reply papers, and the trial court overruled Hocker's objections. We find no abuse of discretion in this ruling.
4. Pretext
Because Varian satisfied its burden of producing a legitimate, nondiscriminatory reason for its action, the burden shifted to Hocker "to rebut this facially dispositive showing by pointing to evidence which nonetheless raises a rational inference that intentional discrimination occurred." (Guz, supra, 24 Cal.4th at p. 357.) Hocker's arguments do not satisfy this burden.
Hocker objects that neither the restructuring of the MarCom group nor the company-wide reduction in force required Smith-Wood to select her for the layoff. Hocker points out that the contemplated restructuring did not call for any layoffs or terminations and, in fact, her name was included on an organizational chart of a "Future Global Corporate Marketing and Communications" group. Hocker also points out that the reduction in force was not intended to be based on a shift to "strategic" roles. Hocker is correct on both points, but they show only that Smith-Wood was not required to select Hocker for the lay off because she was not well-suited to a strategic role. They do not show that Smith-Wood's rationale was pretextual and thus do not satisfy Hocker's burden of presenting "evidence which . . . raises a rationale inference that intentional discrimination occurred." (Guz, supra, 24 Cal.4th at p. 357.)
Hocker also argues that, in selecting her for the reduction in force based on unsuitability for a strategic role, Smith-Wood "deviated substantially" from the selection criteria mandated by Varian. In fact, the identification and selection tool distributed by Varian gave decision-makers discretion over the criteria used: it directed them to "identify 3-5 criteria" for ranking employees and then noted that "[c]riteria may include" three examples. Pointing to a slide in an earlier presentation, Hocker asserts that the listed criteria were mandatory. That slide, however, referred to selection criteria "[g]uidelines," not requirements, and Hocker fails to explain how a reasonable jury could find those guidelines mandatory in light of the subsequent statements in the identification and selection tool.
Moreover, even if Smith-Wood had overstepped her authority by developing her own criteria, it would not follow that those criteria were pretextual. Undisputed evidence showed that for months prior to the reduction in force Smith-Wood had been seeking to reorganize the MarCom group to add more "strategic thinkers" and that in early 2020 this reorganization was approved. Consequently, even if Smith-Wood violated company policy by using the reduction in force to implement her reorganization plans, there is no reasonable basis for inferring that her desire for more strategic skills was not genuine and that in fact she was motivated by discriminatory animus. (See Hersant, supra, 57 Cal.App.4th at p. 1005 [an employee" 'cannot simply show that the employer's decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent.' "].)
Hocker also objects that the criteria used by Smith-Wood were subjective and, indeed, operated as a "code" favoring younger workers. We are not persuaded. Certainly, subjective criteria are more susceptible to abuse than objective criteria. However, the use of subjective criteria is not enough by itself to show pretext and support an inference of discriminatory intent. (See Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 1005.) Acknowledging this, Hocker asserts that the specific criteria that Smith-Wood chose-adaptability, strategic thinker, and strategic planner-"can be seen as ageist." But Hocker fails to explain how the criteria are ageist. Indeed, it might be thought that older employees, with the benefit of greater experience, are more likely to take a long-term perspective and in that way be more strategic thinkers and planners. It also might be thought that older employers are more likely to have experienced unexpected outcomes and changes in their careers and in that way be more adaptable than their younger, less experienced colleagues. As a consequence, we fail to see how the criteria used by Smith-Wood inherently favor younger workers.
Hocker argues as well that Smith-Wood erred in concluding that she lacked strategic skills. In particular, Hocker contends that she had work experience involving creative and strategic marketing, that she displayed creative skills in one project, and that it was unfair to assess her strategic skills based on the performance of her existing role, which was primarily tactical in nature. Hocker also argues that Smith-Wood's investigation of both her and other employees was inadequate. Notably, however, Hocker does not argue that under these criteria she should have been rated higher than her younger colleagues. As a consequence, while Hocker's arguments may suggest that Smith-Wood's decision to select her was unwise or incorrect, they do not suggest that Smith-Wood's reasons for that decision were pretextual and indicative of a discriminatory intent. (See Guz, supra, 24 Cal.4th at p. 358; see also Horn v. Cushman &Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 816 ["an employee's subjective personal judgments of his or her competence alone do not raise a genuine issue of material fact."]; Hersant, supra, 57 Cal.App.4th at p. 1005.) Moreover, in light of the undisputed evidence that Smith-Wood had decided to focus her group on strategic planning in the spring and summer of 2019, it cannot be inferred that Smith-Wood "just made the whole thing up as a cover" to justify Hocker' selection.
Finally, Hocker points to the age-based comments allegedly made by Chua in April 2019 and reported to Yu and Smith-Wood in July and August 2019. In the right context, age-based remarks, including "stray remarks" not made directly in an employment decision or uttered by a decision-maker, may provide circumstantial evidence of discrimination. (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 539.) However, "a slur, in and of itself, does not prove actionable discrimination." (Id. at p. 541.) Instead, a court must assess the probative value of such remarks in light of "the totality of evidence in the record." (Ibid.)
Here, in light of the totality of the evidence, Chua's remarks have little, if any, probative value. According to Hocker, Chua made two age-related comments in or around April 2019: that Chua preferred to hire younger people and that Hocker was "too old/old-fashion[ed]." Hocker brought these comments to Yu's and Smith-Wood's attention in July and August 2019, but Chua was not disciplined for them and, in fact, was subsequently promoted. However, it was not until May 2020, approximately nine months after these matters, that Smith-Wood selected Hocker for the reduction in force.
In so doing, Smith-Wood did not consult with Chua, who had stopped supervising Hocker the previous August and had not even talked to Smith-Wood about Hocker in 2020. Indeed, Chua did not learn of Varian's reduction in force until a company-wide email announcing it. In short, Hocker failed to show that Chua's age-related comments, interactions with Hocker, or subsequent promotion have any connection with Smith-Wood's selection of Hocker for layoff months later after the COVID-19 pandemic hit and Varian instituted a reduction in force. As a consequence, there is no rational basis for inferring that Chua or considerations relating to her influenced Hocker's selection.
We conclude that Hocker failed to raise a triable issue concerning pretext and that the trial court correctly granted Varian summary judgment on her age discrimination claim.
In her opening brief, Hocker responds to two arguments that Varian made in its summary judgment motion and has repeated on appeal: that Hocker's age at hiring and the ages of Smith-Wood and her manager Kathy Conner when Hocker was selected for the reduction in force show that Varian did not discriminate against Hocker based on age. Because neither of these arguments concerns the non-discriminatory reason advanced by Varian, we need not consider them.
B. Retaliation
In her second cause of action, Hocker alleges that Varian retaliated against her for her complaints about Chua's alleged ageist comments. (See Gov. Code, § 12940, subd. (h) [making it an unlawful employment practice to discriminate because a person has filed a complaint or "opposed any practices forbidden under this part"].) In particular, Hocker contends that she was selected for the reduction in force in retaliation for her complaints about Chua. As shown above, however, the reduction in force did not take place until almost a year after Hocker complained about Chua's comments, and Hocker failed to show that Chua or her complaints about Chu had any connection to Hocker's selection. As a consequence, there was no triable issue concerning retaliation, and the trial court correctly entered summary judgment on Hocker's retaliation claim.
C. Failure to Prevent Discrimination
In her third cause of action, Hocker alleges that Varian failed to take any reasonable steps to prevent discrimination. (See Gov. Code, § 12940, subd (k) [making it an unlawful employment practice for an employer "to fail to take all reasonable steps necessary to prevent discrimination and harassment"].) Because, as shown above, Hocker failed to raise any triable issue concerning age discrimination (or retaliation), there was no discrimination to prevent, and Varian is entitled to summary judgment on this claim. (Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1318.)
D. Wrongful Termination
Hocker's final cause of action is for wrongful termination in violation of public policy. As this claim is derivative of her first three claims, which we have found were appropriately dismissed, this claim fails as well.
III. Disposition
The judgment is affirmed.
WE CONCUR: BAMATTRE-MANOUKIAN, ACTING P.J.