Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County No. GIC838375, Steven R. Denton, Judge.
O'ROURKE, J.
Sandra Nagy appeals a summary judgment granted to her former employer, Pfizer, Inc. (Pfizer). Nagy resigned her job and subsequently filed a complaint alleging she was constructively discharged, and pleading causes of action for wrongful termination in violation of public policy, disability discrimination, and retaliation. Nagy contends triable issues of material fact exist regarding whether: (1) Pfizer gave her negative performance reviews after she took disability leave; (2) she suffered adverse employment actions; (3) Pfizer unlawfully retaliated against her because she filed a disability claim; and (4) she was entitled to punitive damages. Affirmed.
Summary judgment was also granted on Nagy's claim of negligent hiring retention and supervision. However, Nagy does not challenge this portion of the trial court's ruling in her appellate briefs, and therefore we regard the claim as waived. " 'Appellate courts will notice only those assignments pointed out in the brief of an appellant, all others are deemed to have been waived or abandoned.' " (Wheeling v. Financial Indem. Co. (1962) 201 Cal.App.2d 36, 44; accord, Tiernan v. Trustees of Cal. State University &Colleges (1982) 33 Cal.3d 211, 216, fn. 4.)
FACTUAL AND PROCEDURAL SUMMARY
On appeal from the grant of summary judgment, we set out the undisputed evidence and other evidence in the light most favorable to Nagy, the party opposing summary judgment. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar); Alexander v. Codemasters Group Limited (2002) 104 Cal.App.4th 129, 139 (Alexander).) However, we disregard evidence to which the court sustained Pfizer's objections. "[F]or purposes of reviewing a motion for summary judgment, we do not consider evidence 'to which objections have been made and sustained.' [Citation.] Where the [non-moving party] does not challenge the superior court's ruling sustaining [the moving party's] objections to evidence offered in opposition to the summary judgment motion, 'any issues concerning the correctness of the trial court's evidentiary rulings have been waived. [Citations.] We therefore consider all such evidence to have been "properly excluded." ' " (Alexander, at pp. 139-140.) Nagy has not challenged any of the trial court's rulings on Pfizer's evidentiary objections, and thus we do not consider that evidence stricken by the trial court.
In March 2001, Pfizer hired Nagy as a sales representative. Her job was to meet with doctors and other health care professionals to discuss and explain Pfizer's products and sell the products. Pfizer acknowledges Nagy had a successful sales record, despite working in a difficult territory. Based on her sales record, Nagy received bonuses and raises throughout her career at Pfizer and qualified for award trips given out to the highest achieving sales representatives, including to New Orleans, Jackson Hole, and Puerto Vallarta.
In June, 2002, Nagy injured her back in an automobile accident while on a sales call. She was on disability leave from September 19, 2002, to December 6, 2002. Nagy's doctor wrote a January 30, 2003 letter recommending that Nagy use an SUV vehicle because of her back injury. On March 10, 2003, Pfizer approved a minivan with lumbar support for Nagy. Nagy developed another medical condition and went back on disability leave from March 27 to June 19, 2003. Following that leave, she worked part-time. At the end of July, 2003, Pfizer gave Nagy a minivan for her use. Nagy admitted in her deposition that Sam Ball, her immediate supervisor, helped her get approval for the minivan.
Pfizer's sales representatives are required to successfully complete an 8-phase training program. Phase 6 is one of the most important phases, and entails a 2-day evaluation dealing with critical presentation skills and technical product knowledge. Success in meeting sales quota does not determine success in the phase 6 evaluation. Nagy originally was scheduled to take her phase 6 evaluation in August 2002. Pfizer granted her requests to postpone it, and she took it in January 2003, but did not pass it.
One of Nagy's phase 6 examiners was Stephen Yurick, Pfizer's regional sales manager. Nagy admitted in her deposition that Yurick informed her she faced termination if she failed the phase 6 evaluation a second time. Ball contacted Yurick several times to postpone Nagy's retake of the evaluation to ensure she would be prepared to pass it. Eventually, the evaluation was rescheduled for December, 2003.
Throughout Nagy's employment, Ball evaluated her performance through both field trip coaching guides, in which he documented his observations and suggestions when he accompanied her on sales trips; and, in semester progress reviews, which he prepared every six months. Both before and after Nagy's disability, Ball's evaluations mentioned positive things, but also several times pointed out that Nagy needed to improve her technical knowledge of products.
On July 17, 2003, Nagy wrote Yurick an email stating she had spoken to Yurick about her problems with Ball in January; she added, "[Ball] has been treating me differently because I filed a worker's compensation claim and my injury." Yurick stated in a declaration, "I am aware of the fact that Ms. Nagy complained that she believed that Mr. Ball was 'harassing' her and 'retaliating' against her because of her disability leaves. I did look into the complaint."
On September, 20, 2003, Ball sent Nagy an email stating, "Pfizer [can] no longer accommodate part time work and [you need] to go back on disability." Ball requested a follow-up meeting with Nagy. On November 7, 2003, Nagy wrote a letter informing a Pfizer executive, "I hereby tender my resignation from Pfizer, Inc. effective December 2, 2003. I have returned all Pfizer property today . . . prior to taking my entitled remaining paid vacation days for this year."
Nagy's second amended complaint — the operative pleading — alleged causes of action against Pfizer for wrongful termination in violation of public policy; disability discrimination under Government Code section 12940 et seq., known as the Fair Employment and Housing Act (FEHA); and retaliation in violation of FEHA. Pfizer moved for summary judgment or, in the alternative, summary adjudication, arguing that Nagy resigned her employment and was not constructively discharged; she suffered no adverse employment action; and Pfizer did not discriminate or retaliate against her. Pfizer also alleged Nagy's cause of action for negligent hiring, supervision, training and retention was barred by the workers' compensation exclusivity rule. Pfizer submitted copies of Nagy's performance reviews and declarations from Yurick and Ball. In opposition, Nagy submitted her declaration, and transcripts of her deposition and Ball's deposition and the accompanying exhibits.
The trial court granted summary judgment on all causes of action because Nagy failed to produce evidence she suffered continuous and intolerable conduct as judged by a reasonable person, or experienced any adverse employment action.
DISCUSSION
I.
A.
Nagy contends she was constructively discharged in violation of FEHA and Labor Code section 132a, which forbids discrimination against workers injured in the course of their employment. She claims her working conditions became "unbearably intolerable" and she was forced to resign because of the following: First, when she returned to work from the first disability leave in December 2002, she started receiving negative performance reviews based on subjective criteria, although her sales numbers were good and in many instances the best in her district. Nagy focuses on Ball's January, 2003 semester progress review in which she did not receive the highest rating of "always" in the areas of "perseverance," "decision making," "communications/persuasive ability," and "teamwork;" rather she received the next highest rating of "routine." Nagy describes this as a "drastic change." Second, Pfizer unreasonably delayed in providing her the minivan. Third, Pfizer forced her to work while on disability leave, including during the Cedar wildfires in San Diego. Fourth, after her disability leave, Ball did not mentor her to retake the phase 6 exam. Fifth, in September 2003, Pfizer gave her an ultimatum to either work full time or go back on disability leave; therefore, she feared she possibly would lose her sales territory and need to "start over" in a new territory.
Section 2 of the semester progress review form is labeled, "capability assessment;" it evaluates the following 12 "core behaviors:" (1) work ethic/initiative; (2) planning/ organizing; (3) perseverance; (4) decision making; (5) communications/persuasive ability; (6) technical knowledge; (7) market knowledge; (8) relationship orientation;
B.
"The grant and denial of summary judgment or summary adjudication motions are subject to de novo review." (Nakamura v. Superior Court (2002) 83 Cal.App.4th 825, 832.) The standards that apply to summary judgment motions under Code of Civil Procedure section 437c are set forth in Aguilar, supra, 25 Cal.4th at pp. 843-857. Generally, if all the papers submitted by the parties show there is no triable issue of material fact and the "moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c)), the court must grant the motion for summary judgment. (Aguilar, supra, at p. 843.) Code of Civil Procedure section 437c, subdivision (o) provides that a cause of action has no merit if: (1) one or more elements of that cause of action cannot separately be established; or (2) a defendant establishes an affirmative defense to that cause of action. Code of Civil Procedure section 437c, subdivision (p)(2) states: "A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to that cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The plaintiff or cross-complainant may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto." A material fact "must relate to some claim or defense in issue under the pleadings, and it must also be essential to the judgment in some way." (Riverside County Community Facilities Dist. v. Bainbridge 17 (1999) 77 Cal.App.4th 644, 653.)
Aguilar made the following observations:
"First, and generally, from commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. . . . There is a triable 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. . . . [¶] Second, and generally, the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact. . . . A prima facie showing is one that is sufficient to support the position of the party in question. . . . [¶] Third, and generally, how the parties moving for, and opposing, summary judgment may each carry their burden of persuasion and/or production depends on which would bear what burden of proof at trial. . . . [I]f a defendant moves for summary judgment against . . . a plaintiff [who would bear the burden of proof by a preponderance of the evidence at trial], [the defendant] must present evidence that would require a reasonable trier of fact not to find any underlying material fact more likely than not — otherwise, he would not be entitled to judgment as a matter of law, but would have to present his evidence to a trier of fact." (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 851, fns. omitted.)
C.
"An actual or constructive discharge in violation of fundamental public policy gives rise to a tort action in favor of the terminated employee." (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1252 (Turner).) Constructive discharge occurs when the employer's conduct effectively forces an employee to resign. Although the employee may say, 'I quit,' the employment relationship is actually severed involuntarily by the employer's acts, against the employee's will. As a result, a constructive discharge is legally regarded as a firing rather than a resignation." (Id. at pp. 1244-1245.) "In order to establish a constructive discharge, an employee must plead and prove, by the usual preponderance of the evidence standard, that the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee's resignation that a reasonable employer would realize that a reasonable person in the employee's position would be compelled to resign. [¶] For purposes of this standard, the requisite knowledge or intent must exist on the part of either the employer or those persons who effectively represent the employer, i.e., its officers, directors, managing agents, or supervisory employees." (Id. at p. 1251.)
Criticism of an employee's job performance, "even if alleged to be unfair or outrageous . . . does not create the intolerable working conditions necessary to support a claim of constructive discharge." (Soules v. Cadam, Inc. (1991) 2 Cal.App.4th 390, 401, disapproved on other grounds in Turner, supra, 7 Cal.4th at p. 1251; Casenas v. Fujisawa USA, Inc. (1997) 58 Cal.App.4th 101, 115.)
Pfizer provided the following evidence negating Nagy's claim of constructive discharge: Nagy's performance reviews after her disability leave were not more negative than her reviews before the leave. Specifically, on her February 5, 2002 and June 26, 2002 semester progress reviews, Nagy received a rating of "always" on six "core behaviors" and "routinely" on the remaining six. In contrast, on her January 9, 2003 review, she received a rating of "always" on seven core behaviors; "routinely" on four; and "sometimes" on one. Among other favorable comments, Ball wrote, "Sandi, you are a good performer. You complete and meet deadlines and demonstrate skill in solving problems as it pertains to access in offices."
On her July 18, 2003 semester progress review, she received a rating of "always" on nine core behaviors, "routinely" on one; and "sometimes" on two. Among other favorable comments, Ball wrote, "Sandi, you are having a strong sales performance this year. . . . [¶] Since joining Pfizer you have consistently moved your territory up the rankings. 2001 you finished 51, in 2002-26 and now in 2003 you are at number 7 in the Western Region. You have done a nice job moving your territory forward." In her deposition, Nagy stated that she took issue with the three categories in which she did not receive a rating of "always" in this semester progress review. She also admitted that one difference between this semester progress review and the January 9, 2003 semester progress review was that, in the interim, she had failed the phase 6 evaluation.
Nagy does not claim she was denied disability benefits, or suffered a demotion or loss of wages during her employment. Pfizer also pointed out Nagy received bonuses and raises throughout her career at Pfizer; qualified for award trips given out to the highest achieving sales representatives; and won award trips to New Orleans, Jackson Hole, and Puerto Vallarta, all at company expense. Nagy admitted in her deposition that she received her regular paychecks while on disability leave.
Based on Pfizer's prima facie showing that no triable issue of material fact existed, the burden shifted to Nagy to produce evidence that a triable issue of material fact existed regarding whether her performance reviews were negative, but she did not do so. She asserted in a declaration: "Pfizer purports to measure our performance as Sales Reps objectively, based on the sales numbers we achieve, and also subjectively in terms of job 'capabilities'. . . . Although to the layman a Field Trip Coaching Guide or Semester Progress Review Form might not appear to be overtly 'negative,' the fact that a Sales Rep is performing 'always' one month and 'routinely' the next is actually a 'drop,' or a negative performance. In other words Pfizer looks for changes within the categories from one report . . . to another. It is certainly possible for it to disregard 'objective' numbers, which cannot be manipulated, in favor of 'subjective measures if manipulation or adverse employment action is necessary." Nagy produced no evidence regarding how Pfizer interprets performance reviews to determine whether they are negative; or to show that, in her case, Pfizer disregarded objective assessment criteria and instead relied on subjective ones; or which subjective ones in particular.
Nagy relies on a single sentence in a Pfizer interrogatory response stating, "Prior to her resignation, plaintiff's performance was poor. She failed her [p]hase 6 evaluation on or about January 21, 2003, and her 'product knowledge' was lacking, among other things." Nagy asserts that the executive who signed the verification form to this interrogatory response, "could only have reached that conclusion after reading the written performance reviews. . . . [Therefore] Nagy was correct when she said Mr. Ball was giving subtly-negative performance reviews that would adversely affect her career at Pfizer." But the executive's characterization cannot substitute for an analysis of the performance reviews. Nagy merely speculated that the executive analyzed only her performance review, but her separate statement cites no evidence to support this assertion. Regardless of what information the executive relied on, he took into account that she failed the phase 6 evaluation and her product knowledge was lacking. Nagy has not produced evidence rebutting either of these bases for the executive's statement.
This response was given to a Form Interrogatory requesting that Pfizer, "Identify each denial of a material allegation and each special appeal or affirmative defense in [its] pleadings. . . ." Robert Walker was the executive who signed the verification form. Ball testified in his deposition that he did not discuss Pfizer's interrogatory response with Walker.
Furthermore, because Nagy asserts Ball's performance reviews were merely "subtly-negative," and to the "layman" they "might not appear to be overtly negative," she in effect concedes there was no triable issue of material fact — regarding whether the performance reviews were negative — to be decided by a jury. Moreover, as a matter of law, the "subtly-negative" performance reviews do not qualify as "sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job to earn a livelihood and to serve his or her employer." (Turner, supra, 7 Cal.4th at p. 1246.)
D.
Pfizer rebutted Nagy's claim that it unreasonably delayed in providing her the minivan. Nagy's doctor wrote a January 30, 2003 letter recommending she get the minivan. Pfizer approved Nagy's request on March 10, 2003. Nagy went on the second disability leave from March 27 to June 19, 2003. Following that leave, she worked part time. Pfizer gave her the vehicle at the end of July, 2003. Based on this timeline, Pfizer met its burden of showing it did not unreasonably delay in giving the minivan to Nagy.
Nagy resigned approximately four months after she received the minivan, giving rise to the inference that any delay in her getting the minivan was not, by itself, an unduly intolerable condition that forced her to resign. Although not dispositive, "[t]he length of time the plaintiff remained on the job may be one relevant factor in determining the intolerability of employment conditions from the standpoint of a reasonable person." (Turner, supra, 7 Cal.4th at p. 1254 .) The Turner court cited with approval a federal case finding no constructive discharge when the employer's alleged misconduct occurred "several months" prior to the employee's resignation. (Id. at p. 1255, citing Vaughn v. Pool Offshore Co. (5th Cir. 1982) 683 F.2d 922, 926.)
E.
Nagy contends that while she was on her first disability leave, she "received repeated work-related requests and assignments from Mr. Ball including phone calls, phone messages, and email messages." Pfizer challenged this assertion in a statement of undisputed material fact stating "no [field trip counseling] guide or any other email substantiates that [Ball] ever did; rather, Ball may have sent her written materials concerning new product releases or information about existing products simply because she is on the same email list as other members of his sales team." Nagy responded as follows: "Undisputed that none of the documents prepared by Mr. Ball will reflect [her] complaints." Nagy continued, "However, the implication that there is a lack of pressure is disputed. Ms. Nagy sent emails to Pfizer regarding her complaints [citations] and he pressured or forced her to verbally work." This was partly nonresponsive; but more importantly, Nagy did not point to any documentary evidence to support her contention Ball required her to work during her first disability leave. In her deposition, she admitted she spoke to a Pfizer human resources representative in December 2002, who told her — in response to Nagy's complaint that Ball was not contacting her while she was on disability leave — that Pfizer's policy prohibited Ball from contacting her while she was on leave. This testimony leads to the inference Ball did not contact Nagy while she was on leave.
Nagy further contends that, when she returned to work following her second disability leave, "Ball refused to accommodate [her] doctor's order that she limit her work to no more than 4 hours per day." Pfizer met its prima facie burden of producing evidence that it did not require Nagy to work beyond the limits set by her doctor. Specifically, Ball sent Nagy a July 18, 2003 email that stated in the subject line, "District Standards for 4 hrs/day/ 30 days." The email stated the following restrictions on Nagy's workload: "As we discussed today concerning district standards while you are on restricted work time, please make sure you: work the hours agreed upon by your doctor. . . . Make sure your counterparts know you are on restricted work time so they will understand you need some help." Again, in Nagy's separate statement, she did not meet her burden of producing evidence to show that when she returned to work from her second disability leave, Ball required her to work more than the hours her doctor approved.
Nagy contends that one day during the Cedar wildfires in San Diego County in October, 2003, Ball forced her to work in an area evacuated because of the fires. She does not dispute that a field report Ball prepared that day stated that Ball and Nagy had to end the day early because of the fires and Nagy's medical appointment. At any rate, we conclude this single event was not so egregious as to constitute constructive discharge as a matter of law.
F.
Nagy claims that after her disability leave, Ball did not mentor her for the phase 6 evaluation. She also contends Ball gave her five days to learn a new product and take an exam on it, while other employees received a month to prepare for the exam, including a specialized two-day seminar. Nagy stated in her declaration that she passed the exam about the product, notwithstanding the time restrictions.
Pfizer met its prima facie burden of showing that Ball did provide mentorship to Nagy. Ball several times postponed the phase 6 evaluation to accommodate Nagy's need to prepare for it. Ball sent Nagy a July 17, 2003 letter summarizing the skills she needed to improve to pass phase 6; the letter concluded, "Sandra, I stand ready to assist you in your improvement in the areas mentioned above. I will coach you on field rides and during [p]hase 6 preparations. We will discuss your progress and readiness for the training during field rides and meetings. Please let me know if you have any questions on the expectations listed above." Nagy signed acknowledgment of the letter. Ball also sent Nagy a July 21, 2003 memo that included product information and suggestions for passing the phase 6 evaluation. At the end of August, 2003, Nagy sent Ball an email stating she preferred to wait until she returned to a full time schedule before attending phase 6 training. Ball responded by telling her that she would not take a phase 6 class in September; instead, a class would be scheduled after she returned to full-time work.
The burden having shifted to Nagy to provide evidence a triable issue of material fact existed regarding whether Ball provided mentorship to her after her disability leave, she failed to rebut the evidence that Ball mentored her and was willing to give her additional help for the phase 6 evaluation.
G.
Nagy contends that in September 2003, Pfizer gave her an ultimatum: "work full time or go back on disability and risk losing your territory, which meant that she would have to 'start over' in a new territory after she had worked so hard to open the existing territory and create professional relationships there." Nagy continues, "Certainly among the inferences that can be drawn from this 'ultimatum' is the inference that it was presented to force Ms. Nagy to resign, or to set her up to be fired."
Pfizer acknowledges the record the record includes a July 11, 2003 letter from Nagy 's doctor, Steven Nusinow, stating, "I am limiting Ms. Nagy's work load to four hours per day for the present time and I will reassess her in four weeks." Pfizer points out that Ball specifically told Nagy to work only the hours agreed upon by her doctor.
Nagy admits that Pfizer "initially agreed" to the doctor's limitations, but she contends, Pfizer "secretly required and demanded that [she] exceed this." Nagy adds, "In September 2003, Pfizer gave up the pretense of secrecy when faced with the fact that [she] was succeeding anyway, and told [her] that she could no longer work the 4-hour day (even though her sales productivity had exceeded everyone else's) in effect forcing [her] to give up the territory she had worked hard to develop."
As we stated above, Nagy presented no evidence in her separate statement that Pfizer "secretly" required her to work more than 4 hours daily. There also was no evidence presented that anyone at Pfizer told Nagy she would lose her territory and be transferred to another one. Nagy admitted in her deposition that nobody told her if she lost her territory she would be out of a job at Pfizer. Therefore, Nagy's conclusion that Pfizer was forcing her to give up her territory requires " 'inferences based entirely on tortured reasoning or logic strained to the breaking point.' " (Waschek v. Department of Motor Vehicles (1997) 59 Cal.App.4th 640, 647.) In any event, to whatever extent Nagy contends a change of territory would be tantamount to a demotion, and therefore a basis for her claim of constructive discharge, the contention fails as a matter of law. (See Turner, supra, 7 Cal.4th at p. 1247 ["a demotion, even when accompanied by reduction in pay, does not by itself trigger a constructive discharge"].)
In summary, based on our above examination of each of the conditions Nagy complained of, we conclude that, taken singly, they were not so intolerable or aggravated that a reasonable trier of fact in Nagy's position would be compelled to resign. We reach the same conclusion when we analyze the conditions collectively. Nagy failed to meet her burden of establishing a constructive discharge under Turner. Therefore, the trial court did not err in granting summary judgment on the wrongful termination cause of action.
II.
An employee who alleges disability discrimination must ultimately prove the employment action taken was based upon the disability. "Since direct evidence of such motivation is seldom available, the courts use a system of shifting burdens as an aid to the presentation and resolution of . . . discrimination cases. [Citations.] That system necessarily establishes the basic framework for reviewing motions for summary judgment in such cases." (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1002 (Hersant).)
"The burden-shifting system requires the employee first establish a prima facie case of [disability] discrimination [or failure to accommodate a known disability]. If the employee does so, the employer is required to offer a legitimate . . . reason for the adverse employment action." (Hersant, supra, 57 Cal.App.4th at p. 1002.) If the employer meets its burden, the burden shifts back to the employee to meet its ultimate obligation of proving that the reason for the adverse action was discriminatory. (Id. at p. 1003.)
"A prima facie case for discrimination on grounds of [mental] disability under the FEHA requires plaintiff to show: (1) [plaintiff] suffers from a disability; (2) [plaintiff] is otherwise qualified to do [ the] job; and, (3) [plaintiff] was subjected to adverse employment action because of [the] disability." (Deschene v. Pinole Point Steel Co. (1999) 76 Cal.App.4th 33, 44.) "To avoid summary judgment, an employee claiming discrimination must offer 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." (Hersant, supra, 57 Cal.App.4th at p. 1005.)
"[W]hether or not a plaintiff has met his or her prima facie burden, and whether or not the defendant has rebutted the plaintiff's prima facie showing, are questions of law for the trial court and not questions of fact for the jury." (Caldwell v. Paramount Unified School District (1995) 41 Cal.App.4th 189, 201.) In the context of a FEHA claim that no reasonable accommodation was provided, where the undisputed facts demonstrate solely that the employer offered reasonable accommodations, the court may determine the issue as a matter of law. Although the "reasonableness" of an accommodation will ordinarily be an issue for the jury, the issue can be decided by the court in a motion for summary judgment when there is no factual issue to be resolved. (Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 953-954.)
For the purpose of applying FEHA, an adverse employment action is not limited to "ultimate" employment acts, such as hiring, firing, demotion or failure to promote, but also includes the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee's job performance or opportunity for career advancement. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1053-1054 (Yanowitz).) [noting that the statutory definition is interpreted broadly to further FEHA's fundamental antidiscrimination purposes]; see Akers v. County of San Diego (2002) 95 Cal.App.4th 1441 (Akers).)
An isolated incident, such as a delay in the delivery of a single paycheck, a failure to receive an overtime check or an early job change, does not constitute an adverse employment action. (Thomas v. Department of Corrections (2000) 77 Cal.App.4th 507, 511-512.) Further, "a mere offensive utterance or . . . a pattern of social slights by either the employer or coemployees cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment for purposes of section 12940[, subdivision] (a)." (Yanowitz, supra, 36 Cal.4th at p. 1054.) However, a series of alleged discriminatory acts must be considered collectively rather than individually in determining whether the overall employment action is adverse (id. at p. 1055; Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 373- 374) and, in the end, the determination of whether there was an adverse employment action is made on a case-by-case basis, in light of the objective evidence. (Thomas v. Department of Corrections, supra, at p. 510.)
Nagy failed to meet her summary judgment burden of showing that a triable issue of material fact existed concerning whether Pfizer engaged in disability discrimination. In her opening brief, Nagy summarizes "the facts [that] create an inference of discrimination" as follows: "her employment reviews, her injuries, the coercion to work despite disability and pressure to forego disability altogether." We examined these claims in detail above, and our analysis applies equally here. Accordingly, we conclude that whether these claims are analyzed singly or collectively, Nagy failed to show she experienced adverse employment actions. Therefore, Nagy failed to make out a prima facie case that she suffered disability discrimination.
III.
Relying on the same complaints we analyzed above, Nagy contends Pfizer retaliated against her because she filed a disability claim. Under California case law, "to establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a 'protected activity,' (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action. [Citations.] Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. [ Citation.] If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation ' " 'drops out of the picture,' " ' and the burden shifts back to the employee to prove intentional retaliation." (Yanowitz, supra, 36 Cal.4th at p. 1042.)
Critical to an inquiry regarding a retaliation claim arising under FEHA is whether the plaintiff suffered an "adverse employment action." The cases applying Government Code section 12490, subdivision (a) describe its discrimination component as requiring an "adverse employment action," to wit, a "substantial adverse change in the terms and conditions of the plaintiff's employment." (Akers, supra, 95 Cal.App.4th 1441 at pp. 1454, 1455.) Once again, Nagy failed to make a prima facie case that she suffered any adverse employment action; consequently, the trial court did not err in granting summary judgment on the retaliation cause of action.
IV.
Nagy contends she can seek punitive damages against Pfizer because it is for a jury to decide whether Ball was a managing agent; moreover, punitive damages are recoverable if Pfizer ratified his actions. In light of our disposition of this case, Nagy's contention is moot because absent a finding of any unduly intolerable work conditions to support her claim of constructive discharge or of adverse employment actions to support her retaliation and discrimination claims, no basis exists for a punitive damages award.
DISPOSITION
The judgment is affirmed. Pfizer is awarded its costs on appeal.
WE CONCUR: McCONNELL, P. J., NARES, J.
(9) service orientation; (10) teamwork; (11) problem analysis; and (12) impact. For each core behavior, employees are given one of the following ratings, which we list in ascending order: "unacceptable;" "needs improvement;" "sometimes;" "routinely;" or "always."