Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07AS00406
BUTZ, J.
After two years of poor performance reviews, 63-year-old Deanna Tyler was terminated from her senior credit manager position by defendant Wells Fargo Financial California, Inc. (Wells Fargo) for failing to meet minimum performance requirements for three months during 2006. Tyler sued Wells Fargo for age discrimination under the California Fair Employment and Housing Act (FEHA). (Gov. Code, § 12900 et seq.) The trial court granted Wells Fargo’s motion for summary judgment, finding that Tyler had failed to produce sufficient evidence to create a triable issue of fact on one of the elements of her prima facie case; i.e., that she was competently performing her job duties at the time of her termination.
On this appeal, Tyler faults the trial court’s analysis and insists that she produced abundant evidence raising a triable issue of fact as to whether her termination was motivated by age animus.
We shall conclude (1) that Tyler failed to adduce sufficient proof that she was performing satisfactorily to meet her prima facie burden of proving discrimination; and (2) even if she met her prima facie burden, she did not produce sufficient evidence from which a reasonable trier of fact could conclude that Wells Fargo’s legitimate reasons for firing her were pretextual. We shall affirm the judgment.
FACTS AND PROCEEDINGS
Tyler’s employment at Wells Fargo
In 1996, Tyler was hired by Wells Fargo’s predecessor company, Fidelity Financial, when she was 53 years old. By 2006, she was working as a senior credit manager at Wells Fargo’s Roseville office. Tyler’s duties included selling, through phone solicitation, various auto, real estate, home equity loans and credit card products. She was the oldest employee in the Roseville office.
From 2003 through 2005, Tyler worked under branch managers Thomas Osterhoudt and Justin Bowhay. All branch managers reported to the district manager, Bryan Payne, who oversaw seven branches within his district, including Roseville. Payne reported to Regional Manager Chris Cude, who oversaw the sales performance for all branches in several western states.
In a September 2003 performance review, Osterhoudt wrote that Tyler “struggled to perform at a level that is expected of a seasoned Credit Manager,” and that she “needs to address her lack of business develop [sic] immediately!” He also expressed puzzlement at her “unwillingness to make adjustments to prevent a decline in productivity.” Her overall performance rating was 1 out of a possible 5.
By the time of her January 2004 performance review, Tyler had improved slightly. Her overall rating was 2 out of a possible 5. While lauding her improvement, Osterhoudt stated that, to be successful, Tyler needed to address productivity, loan production and overall performance in 2004. He also noted that Tyler “continues to keep to herself, and needs to be a team player.”
Tyler’s 2005 review showed that she continued to lag in job performance. She scored either a 1 (“Significantly Below All Key Targets”) or a 2 (“Met Some But Not All Key Targets”) in four out of the five objective categories. Her then-supervisor, Justin Bowhay, noted that she “had a very difficult time adapting to technological changes this year”; that she had a tendency to “ignore customers as they walk in[to] the office”; that she “repeatedly asks the same questions, and has a hard time working out problems on her own.”
In January 2006, Wells Fargo instituted a new policy, designed in part to increase productivity and identify poor performers. Under the policy, each credit manager and senior credit manager was required to meet at least one of three performance goals each month: (1) close nine loans; (2) generate new money of at least $100,000 (excluding refinances unless the refinanced loan amount exceeded the old loan), or (3) generate total loan volume of $180,000.
Credit managers who did not meet any of the above minimum performance requirements (MPR’s) for two consecutive months were subject to being placed on a Performance Improvement Plan, or PIP. A Wells Fargo employee who, after being “pipped,” failed to reach at least one of the three performance goals in one of the next six months was subject to further discipline, including termination.
The MPR’s did not apply to branch managers, part-time employees or new employees.
The PIP policy was not inflexible. Supervisors had discretion to make exceptions, but they needed to state legitimate business reasons for doing so.
Tyler failed to meet any of her MPR’s in June 2006, as illustrated by the following chart:
June 2006
Minimum MPR
Tyler’s Performance
% of MPR
Loans Closed
9
6
66.6
Loan Volume
$180,000
$94,621
52.5
New Money
$100,000
$69,840
69.8
On July 5, Payne informed Tyler that she had not met any of her MPR’s and instructed her to meet with the branch manager, Doug Williamson, for coaching. Tyler met with Williamson, who sent her a summary of strategies focused on improving her performance. Nevertheless, Tyler failed to meet any of the MPR’s for July as well. The chart below summarizes her performance:
July 2006
Minimum MPR
Tyler’s Performance
% of MPR
Loans Closed
9
3
33.3
Loan Volume
$180,000
$16,930
9.4
New Money
$100,000
$3,395
3.3
As a consequence and in accordance with company policy, Tyler was placed on a PIP on August 4, 2006. The written PIP, signed by Tyler’s supervisor, Jennifer Magnani, as well as Tyler herself, stated that her continued failure to meet MPR’s during the next six months “may result in further corrective action, up to and including termination.”
Tyler was not the only employee disciplined for poor performance. Three other employees in the Roseville branch, all under age 40, were pipped in 2006. Each resigned shortly thereafter.
Tyler’s relationship with Payne
Bryan Payne had been Wells Fargo’s district manager since 2002. From 2003 to 2006, Osterhoudt, Bowhay and Magnani were the branch managers of the Roseville office who reported to him. Payne was 29 years old in 2006. Tyler produced evidence of the following comments by Payne that she alleged showed age animus on his part:
(1) There were two credit managers in the Roseville office who were age 60 or older Tyler and Kathy Chopelas. When Tara DeWeese became manager of the office for one month in September 2005, Payne instructed her “not to focus on the two older ones, [who] are set in their ways,” but to pay attention to the people with whom she could create the most “lift.” DeWeese understood “the older ones” to mean Tyler and Chopelas.
(2) Payne told DeWeese that he wanted to hire “young ballers” or “young go-getters” who were “fresh out of school,” telling her to look for them at college career fairs.
(3) Payne spoke approvingly of the characters in the movie Boiler Room. DeWeese believed these characters epitomized the “young ballers” of whom Payne had previously spoken.
Branch manager Magnani made DVD copies of Boiler Room (New Line Home Video 2000) for employees to watch. She wanted to use the film as a teaching topic for discussion, explaining that it was about “young, aggressive people.” The DVD was submitted as evidence in the summary judgment proceedings.
(4) Payne once told DeWeese that if he could start over, he would “get rid of everybody and especially [Tyler]” because she “didn’t fit the image” of the office.
(5) Payne often used phrases like “out with the old and in with the new,” and “old ways out, new ways in.”
There was evidence Payne treated Tyler with disdain. He moved her to a desk facing the wall. He spoke to her tersely or made sarcastic comments, as contrasted with his “jovial” attitude toward other employees. He berated her in a loud voice in front of others, saying to her he did not like her numbers. He urged her to quit.
Tyler’s termination
After being placed on PIP in August, Tyler failed to meet any of the MPR’s for either September or October. However, because she was on jury duty for 18 days during those two months, she was not terminated, but rather her PIP was extended.
In November 2006, Tyler was on jury duty for only three days. Her sales performance for November is reflected in the following chart:
November 2006
Minimum MPR
Tyler’s Performance
% of MPR
Loans Closed
9
1
11.1
Loan Volume
$180,000
$55,307
30.7
New Money
$100,000
$9,278
9.2
On December 8, Payne met with Regional Manager Cude and Employee Relations Consultant Melissa Saenz-Williams regarding Tyler’s poor performance record. Because Tyler had failed to reach any of the MPR’s for November after having been placed on a PIP, Cude made the decision to terminate her. No reference to Tyler’s age (63) was made during the discussion, and Cude had no idea how old she was when he made his decision.
During the meeting, Payne, Cude and Saenz-Williams agreed that Tyler’s failure to meet MPR’s for September and October would not be counted against her, since she was on jury duty for a significant portion of those months.
PROCEDURAL HISTORY
Following her termination, plaintiff filed a complaint against Wells Fargo for age discrimination in violation of FEHA, alleging that her age was a motivating factor in Wells Fargo’s decision to terminate her. A second cause of action alleged that Wells Fargo’s conduct violated public policy.
Wells Fargo moved for summary judgment, supported by evidence that Tyler was discharged for poor performance, including her failure to reach the monthly MPR’s after having been placed on a PIP.
Tyler resisted the motion by presenting evidence of the allegedly ageist remarks by Payne we have cited. She also presented statistical evidence that she claimed demonstrated that younger sales representatives who did as poorly as or worse than Tyler were not fired.
The trial court granted the motion. It found that Tyler had not presented sufficient evidence to support one element of her prima facie case; i.e., that she was performing competently at the time of her termination. The court was unpersuaded by the statistical evidence presented by plaintiff, which it deemed flawed. Finally, the court ruled that even if Tyler had carried her prima facie burden, her evidence of discrimination was weak and Wells Fargo’s proof that the reasons for terminating her were job-related was abundant and uncontradicted.
Tyler moved for a new trial, which was denied. She then filed this appeal.
DISCUSSION
I. Applicable Principles
“On appeal after a motion for summary judgment has been granted, we review the record de novo, considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained. [Citation.] Under California’s traditional rules, we determine with respect to each cause of action whether the defendant seeking summary judgment has conclusively negated a necessary element of the plaintiff’s case, or has demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial, such that the defendant is entitled to judgment as a matter of law.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 (Guz).)
“Because of the similarity between state and federal employment discrimination laws, California courts look to pertinent federal precedent when applying our own statutes. [Citations.] In particular, California has adopted the three-stage burden-shifting test established by the United States Supreme Court for trying claims of discrimination, including age discrimination, based on a theory of disparate treatment. (Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248 [67 L.Ed.2d 207] (Burdine); McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 [36 L.Ed.2d 668] (McDonnell Douglas).)” (Guz, supra,24 Cal.4th at p. 354.)
“Disparate treatment” means the employer intentionally discriminated against the plaintiff based on her status in some protected category. (Guz, supra, 24 Cal.4th at p. 354, fn. 20.) This is contrasted with a disparate impact case, in which the plaintiff attempts to prove that a facially neutral employment practice nonetheless discriminated against her because of its disproportionate negative impact on the protected class to which she belongs. (Griggs v. Duke Power Co. (1971) 401 U.S. 424, 431-432 [28 L.Ed.2d 158, 164].) In this case, Tyler alleges that Wells Fargo intentionally discriminated against her because of her age. (Gov. Code, § 12940, subd. (a).) Thus, this is a disparate treatment case.
The McDonnell Douglas test places the initial burden on the plaintiff to prove a prima facie case, and “is designed to eliminate at the outset the most patently meritless claims.” (Guz, supra, 24 Cal.4th at p. 354.) Although plaintiff’s burden is “not onerous” (Burdine, supra,450 U.S. at p. 253 [67 L.Ed.2d at p. 215]), he or she must produce “enough evidence to permit the trier of fact to infer the fact at issue.” (Id. at p. 254, fn. 7 [67 L.Ed.2d at p. 216, fn. 7].) A prima facie case results in a “presumption” of discrimination. It is that quantum and quality of evidence which, if believed by a jury and unrebutted by the defendant, would result in a judgment in the plaintiff’s favor. (Ibid.)
“A defendant employer’s motion for summary judgment slightly modifies the order of these showings. If, as here, the motion for summary judgment relies in whole or in part on a showing of nondiscriminatory reasons for the discharge, the employer satisfies its burden as moving party if it presents evidence of such nondiscriminatory reasons that would permit a trier of fact to find, more likely than not, that they were the basis for the termination. [Citations.] To defeat the motion, the employee then must adduce or point to evidence raising a triable issue, that would permit a trier of fact to find by a preponderance that intentional discrimination occurred. [Citations.] In determining whether these burdens were met, we must view the evidence in the light most favorable to plaintiff, as the nonmoving party, liberally construing her evidence while strictly scrutinizing defendant’s.” (Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th 1088,1097-1098.)
II. Application to This Case
A. Direct Evidence
As both parties seem to agree, a plaintiff can meet her prima facie burden either by producing direct evidence of discrimination or by satisfying the elements of the McDonnell Douglas test, which is designed for cases that must be proved through circumstantial evidence. (See Godwin v. Hunt Wesson, Inc. (9th Cir. 1998) 150 F.3d 1217, 1220 (Godwin), citing Wallis v. J.R. Simplot Co. (9th Cir. 1994) 26 F.3d 885, 889.)
For the first time on appeal, plaintiff claims she produced direct evidence of discrimination. However, because she never raised this claim in the trial court, it is deemed forfeited. (See North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 28-29.)
Nevertheless, we have examined the claim and find it without merit. Plaintiff points to the following as direct evidence that her termination was motivated by age animus: (1) When DeWeese took over as manager of the Roseville office for one month in September 2005, Payne told her to concentrate on the younger employees and ignore the two older ones, who were “set in their ways”; (2) Payne made statements exhibiting a preference for hiring “young go-getters” who were “fresh out of school”; (3) Payne told DeWeese that Tyler did not “fit the image” of the office and expressed admiration for the type of young, aggressive employees featured in the movie Boiler Room; and (4) Payne told Tyler he wanted her “out” and made statements like “[o]ut with the old, in with the new.” Tyler also cites evidence that Payne once berated her in front of other employees, expressed annoyance that he could not fire Tyler because she met her goals, treated her brusquely and placed her at a desk facing the wall.
None of this constitutes direct evidence of Wells Fargo’s discriminatory intent in firing Tyler. “‘[D]irect evidence is evidence which, if believed, proves the fact [of discriminatory animus] without inference or presumption.’” (Davis v. Chevron U.S.A., Inc. (5th Cir. 1994) 14 F.3d 1082, 1085; accord, Blair v. Henry Filters, Inc. (6th Cir. 2007) 505 F.3d 517, 524.) It is “smoking gun” evidence, which is tantamount to an admission by the decision maker that the adverse employment decision was based on the plaintiff’s age. (Chin et al., Cal. Practice Guide: Employment Litigation (The Rutter Group 2009) ¶ 8:108, p. 8 13, citing Radue v. Kimberly-Clark Corp. (7th Cir. 2000) 219 F.3d 612, 619; see, e.g., DeJung v. Superior Court (2008) 169 Cal.App.4th 533, 541 [statement by decision maker that “Ted’s a great guy, but we’re looking for someone younger”]; Ezell v. Potter (7th Cir. 2005) 400 F.3d 1041, 1051 [plaintiff’s co-supervisor stated that employer’s “plan was to get rid of older carriers and replace them with younger, faster carriers”].)
Tyler fails to point to any evidence that the cited statements or conduct occurred close in time to the adverse employment decision, was directly related to her firing, or proved without resort to presumptions or inferences, that Tyler’s age was a motivating factor in the decision to terminate her employment.
Tyler also faced the additional hurdle that Payne was not the one who made the decision to fire her Cude was. However, for purposes of this discussion we shall assume that Tyler produced sufficient evidence that Payne played such a “meaningful role” in the decision to terminate her that his statements were relevant to an assessment of motive. (Ercegovich v. Goodyear Tire & Rubber Co. (6th Cir. 1998) 154 F.3d 344, 355; see also Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 113-115 [explaining “Cat’s Paw” theory of liability].)
We must therefore analyze whether Tyler met her prima facie burden by applying the McDonnell Douglas paradigm, which “reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially.” (Guz, supra, 24 Cal.4th at p. 354.)
B. McDonnell Douglas Framework and Its Application
1. The test.
Under the McDonnell Douglas test, a plaintiff can carry her prima facie burden by showing (1) she was a member of a protected class; (2) she was “qualified for the position [she] sought or was performing competently in the position [she] held”; (3) she suffered an adverse employment action; and (4) “some other circumstance [that] suggests discriminatory motive.” (Guz, supra, 24 Cal.4th at p. 355; McDonnell Douglas, supra,411 U.S. at p. 802 [36 L.Ed.2d at pp. 677-678].) Once a prima facie case is established, the burden shifts to the defendant to articulate neutral, nondiscriminatory reasons for its employment decision. If the defendant carries this burden, the burden shifts back to the plaintiff to prove the legitimate reasons are but a pretext for discrimination. (Rubinstein v. Administrators of Tulane Educ. Fund (5th Cir. 2000) 218 F.3d 392, 399-400(Rubinstein); Los Angeles County Office of the Dist. Attorney v. Civil Service Com. (1997) 55 Cal.App.4th 187, 200-201.)
2. Application.
a. Tyler’s prima facie burden included a showing of “competence.”
There is no dispute that elements 1 and 3 of Tyler’s prima facie case were met, since she was in a protected class (over 40 years of age) and suffered an adverse employment decision (termination).
Nevertheless, the trial court agreed with Wells Fargo’s argument that Tyler had not satisfied her burden with respect to element 2, in that she had not presented sufficient proof that she was performing competently when she was terminated.
Anticipating a stumbling block on this count, Tyler contends that she did not need to produce evidence that she was performing “competently.” Instead, she asserts, it was enough to show that she was merely “qualified” to hold the job. To support this claim, she cites McDonnell Douglas, which used the word “qualified” in dealing with a discrimination claim by a plaintiff who was demoted and then not rehired. She also cites a footnote in Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189 (Caldwell), which suggests that a plaintiff who was less than a “model employee” need not produce proof of competence if he shows that “other employees with equivalent foibles did not suffer his fate.” (Id. at p. 200, fn. 6.) We reject this argument.
McDonnell Douglas dealt with a case of a plaintiff who claimed the employer’s failure to rehire him after it advertised for mechanic’s positions was motivated by racial discrimination. In that context, the high court characterized the prima facie burden as proof that “he [the plaintiff] applied and was qualified for a job for which the employer was seeking applicants [and] that, despite his qualifications, he was rejected.” (McDonnell Douglas, supra, 411 U.S. at p. 802 [36 L.Ed.2d at p. 677], italics added.) Logically, in a failure to hire or promote case, qualification for the position would be the yardstick, while in a termination case competence is the focus. This reasoning is implicit in the California Supreme Court’s formulation that a plaintiff must prove he was “qualified for the position he sought or was performing competently in the position he held.” (Guz, supra, 24 Cal.4th at p. 355, italics added; see also Muzquiz v. City of Emeryville (2000) 79 Cal.App.4th 1106, 1116 [elements of a prima facie case of age discrimination include proof that “at the time of the adverse action the employee was satisfactorily performing his or her job”], italics added.)
Caldwell’s footnote 6 is puzzling dictum, since the opinion also approved of a jury instruction requiring plaintiff to show his job performance was “satisfactory.” (Caldwell, supra, 41 Cal.App.4th at pp. 199-200.) In any event, we do not accept the view that an employee who is justly terminated for inadequate performance should be able to recover tort damages under this state’s antidiscrimination law. The FEHA was intended to combat discrimination in the workplace, not to provide sanctuary for fired employees who have failed to perform their jobs in a competent manner. We thus reject the suggestion that an older terminated employee is relieved from a prima facie showing that she performed her job “competently,” as long as she offers evidence that younger, inept employees did not suffer her fate.
We adhere to the test set forth by our state Supreme Court; i.e., that to meet her prima facie burden, a terminated employee is required to show she “was performing competently in the position [she] held.” (Guz, supra, 24 Cal.4th at p. 355.)
b. Tyler failed to carry her burden.
There was abundant evidence that Tyler was not performing in a competent manner at the time she was terminated. Her performance reviews for the two years prior to 2006 were poor. When, in 2006, Wells Fargo set up the requirement that credit managers reach at least one of three minimum performance goals, Tyler failed to meet any of those goals for two consecutive months June and July resulting in her being placed on a PIP, which was essentially a form of probation. The PIP form she signed on August 4 contained an acknowledgment that a repeated failure to reach any of the three MPR’s during any one of the next six months could result in her termination. Discounting her numbers for the months of September and October because of her jury service, she not only failed to reach any of her MPR goals in November, she failed spectacularly. She reached only 11 percent of the “Loans Closed” goal, 9 percent of the “New Money” goal, and 31 percent of the “Loan Volume” goal. While it is true she was on jury duty for three days that month, her numbers were so far below the expected goals as to rule out jury service as a significant contributing factor.
Tyler supports her claim of competence by citing the fact that her name was on eight of 10 plaques on the office wall for “great sales performance”; testimony by assistant manager Aubree Young that Tyler was “hard working,” an “excellent employee,” and that Young “did not have any problems” with her performance; and Tyler’s own testimony that she met the goals her supervisors had set of averaging three appointments and three applications per day. Tyler also contends that the PIP program was not enforced uniformly and that supervisors were given a large amount of discretion in disciplining employees who did not meet MPR’s. She cites statistical evidence showing that younger employees who performed as badly as or worse than she did were not fired. We are unpersuaded.
Although this statistical evidence was aimed at showing that her termination was pretextual, an issue that arises only after plaintiff has met her prima facie burden, Tyler uses the same evidence to support her argument that Wells Fargo’s performance standards were so laxly enforced as to permit the inference that she met acceptable performance levels.
Tyler worked for Wells Fargo or its predecessor for more than 10 years. The fact that her name appeared on wall plaques celebratory of great sales performance has no significance unless the dates on those plaques were at or near the time of her termination. However, Tyler did not adduce evidence of when her “great sales performance” occurred.
Nor does Aubree Young’s testimony assist Tyler. Young was assistant manager in Tyler’s office for less than two months and admitted she never prepared a performance review for Tyler. In the same deposition, Young also noted that Tyler “would need more assistance on some of the computer things or deals that she couldn’t quite understand,” and that her supervisor, Justin Bowhay, was “clearly [exasperated]” with her.
Finally, Tyler’s self-assessment that she performed satisfactorily through the number of applications and appointments she made does not impress. Tyler never said that the metrics were actual goals set by Wells Fargo; she merely asserted it was management’s “theory” that if those numbers were met, 12 to 15 loans could be closed. In any event, an employee’s subjective personal judgments regarding his or her competence alone are insufficient to raise a genuine issue of material fact. (Horn v. Cushmann & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 816.)
The fact that supervisors were given a certain amount of discretion in placing employees on PIP does not perforce establish that Tyler was performing at a competent level. (See Coleman v. Quaker Oats Co. (9th Cir. 2000) 232 F.3d 1271, 1285.) The MPR goals undisputedly existed and there was abundant evidence that they were being enforced by Wells Fargo during the relevant time frame: In 2006, there were 30 employees in Cude’s region, all under the age of 40, who were pipped for failing to meet MPR’s for two consecutive months and 10 of them were terminated for poor performance. Numerous employees in Tyler’s branch who failed to meet MPR’s for two consecutive months were also placed on PIP’s. While none except Tyler was fired, three of them (all under age 40) quit before the axe fell.
We also agree with the trial court that Tyler’s statistical evidence was faulty. For example, Tyler produced a table purporting to show that she ranked 28 out of 37 employees in her branch during the month of November 2006, but the chart failed to exclude employees who were exempt from MPR’s for one reason or another.
Much of Tyler’s statistical evidence was ruled inadmissible by the trial court, which sustained Wells Fargo’s foundational objections. Tyler takes exception to most of these rulings. However, in denying Tyler’s motion for new trial, the court ruled that summary judgment would have been proper even if all of Tyler’s exhibits had been admitted. We agree with this assessment, and thus find it unnecessary to reach Tyler’s claims of evidentiary error.
Tyler also produced a summary by her attorney’s paralegal purporting to show that in 2006 there were 50 younger employees who failed to meet MPR’s for two consecutive months, yet were not fired. However, the summary was nothing more than a list of employees eligible to be pipped, not those who had been pipped and were subject to termination. The list also failed to screen out employees who were not eligible for a PIP, because they were new, part time, or managerial, nor did it eliminate employees who resigned. Statistical evidence that fails to account for relevant variables that might explain the conclusion sought to be drawn from it is entitled no weight. (Coleman v. Quaker Oats Co., supra, 232 F.3d at p. 1285; see also Sheehan v. Daily Racing Form, Inc. (7th Cir. 1997) 104 F.3d 940, 942.)
Moreover, Tyler’s argument ignores additional evidence of her failure to meet employer expectations, apart from falling dramatically short of meeting her MPR’s. She had terrible performance reviews for two of the three years prior to the PIP program, displayed difficulty learning new technology, habitually isolated herself from other employees, and lagged near the bottom in productivity.
We acknowledge that Tyler’s prima facie burden on the issue of competency was not great. Nevertheless, she was obliged to adduce evidence that she “was performing [her] job well enough to rule out the possibility that [she] was fired for inadequate job performance.” (Pejic v. Hughes Helicopters, Inc. (9th Cir. 1988) 840 F.2d 667, 672.) The record is replete with evidence that Tyler was not performing at a satisfactory level, and her opposition evidence was not sufficient to allow a reasonable jury to find to the contrary. We therefore agree with the trial court that Tyler failed to satisfy the “competence” element of her prima facie burden.
C. Even if Tyler Carried Her Prima Facie Burden, Summary Judgment Was Proper
Although we agree with the trial court that Tyler’s proof did not meet her prima facie burden with respect to competence, even assuming that burden was met we conclude, for the reasons that follow, that there was no triable issue of material fact.
If the plaintiff meets her prima facie burden a presumption of prejudice is raised and “the burden shifts to the employer to rebut the presumption by producing admissible evidence, sufficient to ‘raise[] a genuine issue of fact’ and to ‘justify a judgment for the [employer],’ that its action was taken for a legitimate, nondiscriminatory reason.” (Guz, supra, 24 Cal.4th at pp. 355-356.) Once the employer sustains this burden, the presumption of discrimination disappears and the plaintiff must show that the employer’s proffered reasons were a pretext for unlawful discrimination. (Id. at p. 356, citing St. Mary’s Honor Center v. Hicks (1993) 509 U.S. 502, 515-518 [125 L.Ed.2d 407, 421-424].)
Tyler does not dispute the sufficiency of Wells Fargo’s evidence that she was fired for legitimate, nondiscriminatory reasons. Thus, at the summary judgment stage, the issue turns on whether Tyler rebutted this evidence with sufficient evidence to convince a reasonable trier of fact that those legitimate reasons were actually a pretext for age discrimination. (See Guz, supra, 24 Cal.4th at pp. 356, 372.) In order to meet this burden, the plaintiff must produce “‘specific, substantial evidence of pretext.’” (Godwin, supra, 150 F.3d at p. 1221.)
Tyler’s showing relied mainly on anecdotes and comments by Wells Fargo’s management (mostly Payne) that she claims suggest a youth-worshipping culture and animus toward older employees. We must consider this type of evidence in its proper context. In Cooley v. Carmike Cinemas, Inc. (6th Cir. 1994) 25 F.3d 1325 the court held that statements allegedly showing employer bias should be evaluated by considering four factors: (1) whether the statements were made by a decision maker or by an agent within the scope of his employment; (2) whether the statements were related to the decisionmaking process; (3) whether the statements were more than merely vague, ambiguous or isolated remarks; and (4) whether they were made proximate in time to the act of termination. (Id. at p. 1330.)
Applying the Cooley factors, we find Tyler’s evidence of pretext to be quite weak. Contrary to her protestations, the fact that Payne dressed her down in front of others, placed her at a desk facing the wall, treated her dismissively, and displayed general disdain towards her does not tend to show that he desired to get rid of her because of her age. Such an argument is based on the false syllogism: “A mistreated (or acted rudely toward) B. B is an older employee. Therefore A is prejudiced against older employees.” While the cited evidence certainly indicates that Tyler was one of Payne’s least favorite employees, it has no tendency in reason to prove that his hostility was age-based. In fact, Tyler admitted in deposition that Payne’s repeated expressions of displeasure with her were based on her lack of production: “He didn’t like my numbers. He wants me to quit. Thinks I’d be better off someplace else.” He would tell her “If you can’t do this job, I want you to get out.” In light of Tyler’s poor performance record, such comments cannot be considered proof of age bias.
Our affirmance of the judgment should not be construed as an endorsement of Payne’s treatment of Tyler. However, our focus must be fixed on whether sufficient evidence exists to support a reasonable inference that Wells Fargo’s decision to terminate her was aged-based. Moreover, Tyler did not assert any claim based on workplace harassment or hostile work environment.
In deposition, Tyler attempted to draw inferences of age prejudice from Payne’s behavior by stating that he “singled her out,” and did not speak that way to younger employees, even though their numbers were also down. Such an assertion would be based on inadmissible speculation. Tyler could not have been privy to Payne’s meetings with and behavior toward other poorly performing employees in his district.
Tyler places greatest emphasis on two comments from the deposition testimony of DeWeese: The first was Payne’s statement, when DeWeese briefly took over as manager in 2005, that she should ignore the older employees who were “set in their ways” and concentrate on the younger employees, with whom she could create the most “lift.” This comment was not only far removed from the decisionmaking process, but had nothing to do with Tyler’s ability to perform her job. In any event, it would be unremarkable for Payne to believe that a newly promoted 27-year-old store manager might be able to engage better with younger employees.
The second comment was made in a restaurant conversation wherein Payne said he thought Tyler “didn’t fit the image” of his ideas for the future of Wells Fargo. However, this comment did not include mention of Tyler’s age. In fact, DeWeese admitted that the only time she heard Payne use the word “old” in reference to Tyler was in his earlier comment when he told her not to concentrate on the older employees who were set in their ways. Because this and the “lift” comment were made long before Wells Fargo’s decision to fire Tyler, they cannot be viewed as credible evidence that the reasons for terminating Tyler in December 2006 were a pretext for age prejudice.
Tyler’s intense focus on management’s alleged glorification of the film Boiler Room is a tempest in a teapot. Tyler points to DeWeese’s deposition testimony that branch manager Magnani made DVD copies of the movie and asked all employees to watch it, saying she wanted to hire “young, aggressive” employees in her office like those in the film. DeWeese also said that when Payne said he wanted to hire “young ballers,” she understood him to be referring to the characters depicted in Boiler Room, since Payne had previously spoken approvingly of the film.
Echoing DeWeese’s opinion that the film is about “younger people taking advantage of older people,” Tyler asserts that the Boiler Room testimony constitutes “‘highly suggestive circumstantial evidence’ of age-based animus.” We disagree.
Boiler Room is about a fly-by-night brokerage firm inhabited by young, hyper-aggressive male employees who peddle bogus securities, while reaping outrageous commissions. (See <http://www.rottentomatoes.com/m/1095081-boiler_room/> [as of Mar. 10, 2010].) The film does not convey animus toward older people. In fact, the main victim is a thirty-something professional with a wife and small children, who squanders the money he had saved to buy a house on a phony stock sold to him by the main character. While a number of negative inferences might be drawn from Payne’s and Magnani’s endorsement of the film’s disreputable characters, the inference that Wells Fargo desired to rid itself of older employees is not one of them.
Other miscellaneous remarks attributed to Payne to the effect that he wanted to hire “young ballers” who were “fresh out of school,” that Wells Fargo was “geared towards... younger employees,” or the innocuous statement “old ways out, new ways in,” are stray comments totally untethered to the decisionmaking process, and thus fail to constitute substantial evidence of pretext. (See Nesbit v. Pepsico, Inc. (9th Cir. 1993) 994 F.2d 703, 705 [direct supervisor’s statement that “‘we don’t necessarily like grey hair’” and senior vice president’s statement, “‘We don’t want unpromotable fifty-year olds around’” found insufficient to withstand summary judgment where not tied directly to the plaintiff’s termination]; Rubinstein, supra,218 F.3d at p. 400 [comments referring to the plaintiff as “‘Russian Yankee,’” that “Jews are thrifty,” and that if “‘the Russian Jew’ could obtain tenure, then anyone could,” insufficient to defeat summary judgment where no evidence they were “proximate in time” or “related to” the employment decision]; Bolton v. Scrivner, Inc. (10th Cir. 1994) 36 F.3d 939, 944 [supervisor’s reference to the plaintiff as an “‘old fart’” did not support a showing of pretext in the absence of nexus between the remarks and the adverse employment decision].)
“[T]o meet an employer’s sufficient showing of a legitimate reason for discharge the discharged employee, to avert summary judgment, must produce ‘substantial responsive evidence’ that the employer’s showing was untrue or pretextual. [Citation.] For this purpose, speculation cannot be regarded as substantial responsive evidence.” (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1735.) In an age discrimination case based on disparate treatment, a plaintiff must prove that her age “‘actually played a role’” in the employer’s decisionmaking process and had a “‘determinative influence on the outcome.’” (Reeves v. Sanderson Plumbing Prod. (2000) 530 U.S. 133, 141 [147 L.Ed.2d 105, 116] (Reeves).)
The occasional, isolated comments that Tyler attributes to age-based animus could not reasonably give rise to an inference that the performance-based reasons for Tyler’s termination disguised an invidious motive on the part of the company to terminate her because of her age. Succinctly stated, Tyler did not present enough evidence to go to a jury that the nondiscriminatory reasons for her termination were pretextual.
In Reeves, supra,530 U.S. at p. 148 [147 L.Ed.2d at p. 120], the United States Supreme Court held that an employer would be entitled to judgment as a matter of law where “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. Wells Fargo produced abundant evidence that Tyler was terminated for proper reasons and her rebuttal evidence created, at best, only a weak issue of fact that these reasons masked age-based discrimination. Tyler’s FEHA claim was correctly disposed of by summary judgment.
III. Tyler’s “Public Policy” Cause of Action Was Properly Dismissed
In a separate argument, Tyler contends that the evidence she produced in opposition to summary judgment “would also support liability for wrongful discharge in violation of the strong, fundamental policy against discharging an employee for performing his or her civic duty in serving on a jury.” (See Lab. Code, § 230, subd. (a) [employer may not discharge employee for taking time off for jury duty].)
We dismiss this argument summarily because Tyler’s complaint did not include a cause of action for violating Labor Code section 230. “As we have recently reiterated, the pleadings set the boundaries of the issues to be resolved at summary judgment. [Citations.] A ‘plaintiff cannot bring up new, unpleaded issues in his or her opposing papers. [Citation.]’ [Citations.]... Thus, a plaintiff wishing ‘to rely upon unpleaded theories to defeat summary judgment’ must move to amend the complaint before the hearing. (Leibert v. Transworld Systems, Inc. (1995) 32 Cal.App.4th 1693, 1699.)” (Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 648.)
Tyler asserts that her second cause of action for “violation of public policy” embraced a claim for wrongful discharge based on her jury service, citing her averment that, in terminating her, Wells Fargo “violated numerous statutes and regulations including, but not limited to, FEHA, Government Code [section] 12940.” (Italics added.) We disagree. Such a general, all-inclusive allegation fails to put the defendant or the court on notice that the plaintiff is asserting an independent cause of action for violating Labor Code section 230. Since the second cause of action did not plead any legal theory of liability other than wrongful discharge on the basis of age, it was properly dismissed.
DISPOSITION
The judgment is affirmed. Respondent Wells Fargo shall recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
We concur: BLEASE, Acting P. J. CANTIL-SAKAUYE, J.