Nelson v. Jones Day CA2/4 ( 2013 )

Filed 6/25/13 Nelson v. Jones Day CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
JAKI NELSON, B235720
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC413805)
v.
JONES DAY,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Mary Ann Murphy, Judge. Affirmed.
Jaki Nelson, in pro. per., for Plaintiff and Appellant.
Sheppard, Mullin, Richter & Hampton, Tracey A. Kennedy and Jonathan P.
Barker for Defendant and Respondent.
Jaki Nelson, in propria persona, appeals from the judgment entered in favor
of her former employer, Jones Day, following the trial court’s grant of summary
judgment in favor of Jones Day. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Nelson, an African American woman, was hired by Jones Day as a legal
secretary in its Los Angeles office in November 1992. She was laid off on June
15, 2010. She alleged that African American secretaries in Jones Day’s Los
Angeles office were subjected to disparate treatment in areas such as
compensation, benefits, performance evaluations, and accusations of misconduct.
She further alleged that she had been retaliated against for complaining about
disparate treatment by the firm’s human resources manager, Suzanne Zamel, office
administrator, Lisa Takata, and human resources coordinator/secretarial supervisor,
Pat Miller. She stated that she received positive performance evaluations before
she complained of mistreatment based on race and filed complaints with the Equal
Employment Opportunity Commission (EEOC).
Nelson asserted that the complaints of non-African American employees
were addressed promptly, while hers were not. As an example, she asserted that
the partner she began working for in 1997, Norman Pedersen, treated her
abusively, frequently yelling at her and calling her a “bitch.” She complained to
the office manager, Clark Carlson, who assured her the complaint would remain
confidential, but Carlson told Pedersen, which led to Pedersen yelling at Nelson
again. Around 2001, Nelson asked the office administrator, Sheila McKeown, if
she could work for someone else, but, according to Nelson, nothing was done.
Although Nelson alleged that nothing was done regarding her complaints
about Pedersen, memos from her personnel file and copies of emails in the record
2
indicate that McKeown and Zamel responded to Nelson by email and met with her
in May 2001 and July 2001 to discuss the situation. The record shows that Nelson
received positive evaluations from Pedersen, and there is no indication that she was
unhappy with McKeown’s and Zamel’s responses to her.
Nelson also alleged that she was exposed to racist comments by Jones Day
employees and that her complaints about these comments were ignored. In 2001,
she returned from a sick leave and asked a Caucasian attorney, Scott Behrendt,
which secretary covered for her during her absence. Behrendt replied that it was
“A dirty Mexican, can’t you smell her?” Nelson complained to McKeown about
this comment, but nothing was done. After Nelson’s complaint, Behrendt began
acting physically aggressive toward her and criticizing her work.
In 2004, Nelson was told by an unnamed employee that Miller, the
secretarial supervisor and human resources coordinator, referred to an African
American legal secretary as a “ghetto nigger.” When Nelson confronted Miller,
Miller did not deny using the epithet and did not apologize, but instead asked
Nelson who told her about the remark. Nelson did not tell Miller. Nelson further
alleged that Miller treated employees of color differently by ignoring their
complaints, whereas she immediately addressed the complaints of Caucasian
employees.
In 2003, Nelson saw Behrendt and Reed Aljian, a Caucasian attorney,
repeatedly taunt Emery El Habiby, an African American attorney of Egyptian
ancestry. El Habiby filed an EEOC complaint against Jones Day and included
Nelson’s name as a witness. Aljian confronted Nelson, told her he was furious
with her, and asked that she no longer work with him. Although Aljian got a new
secretary, he continued to demand that Nelson do work for him and on one
occasion threw a paper clip at Nelson. Nelson further alleged that Aljian had a
3
violent temper, slammed papers on her desk, and had threatened to throw
secretaries out the window. In addition, she alleged that Behrendt, Aljian, and
another Caucasian attorney, Christopher Lovrien, made her uncomfortable by
glaring at her when they would go out to lunch.
Nelson’s complaints about Aljian were not addressed, so she sent an email in
2005 to Takata, Zamel, and two partners, Frederick McKnight and Elwood Lui,
expressing her belief that she was being discriminated against based on her race.
She did not receive a response.
In 2003 or 2004, a former secretary, Geri Abood, told Nelson that Zamel had
revealed confidential information from Nelson’s personnel file to Abood. Nelson
complained about Zamel to David Boyce, the firm’s administrative partner, but
nothing was done.
In 2005, an unnamed secretary told Nelson that the secretary’s salary had
been $70,000 for many years. Nelson requested a raise, asserting that non-African
American secretaries earned more than African American secretaries, but Zamel
and Takata told her that no secretaries earned $70,000.
In 2005, Nelson made a confidential complaint to Miller that Harriet Leva, a
partner, violated the firm’s no-fragrance policy. Nelson asked Miller to keep her
complaint confidential, but Miller told Leva, who became angry with Nelson.
Nelson then complained to Takata, who told Nelson that she should have
approached Leva herself. According to Nelson, Takata started yelling at her, so
she walked out, but Takata then accused her of insubordination.
Nelson alleged that, from 2006 until mid-2007, Geoffrey Forgione would
tell her to complete his timesheets with 7.5 hours or more of billable hours each
day, but without giving her his actual time worked and the tasks performed,
causing her to worry that this constituted fraudulent billing. Nelson spoke to
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Miller about the practice, but nothing was done about it. Nelson also alleged that
Forgione made derogatory comments to her that she regarded as racially
motivated.
On May 23, 2007, Nelson was called into a two-hour meeting with Zamel
and Takata, who allegedly yelled at her and “took turns hurling demeaning insults”
at her. When Nelson asked them why they were singling her out, Zamel allegedly
replied that Nelson previously had singled Zamel out, presumably referring to
Nelson’s prior complaint to Boyce about Zamel. Zamel allegedly also told Nelson
that it was “payback” for her prior complaints about other people at the firm.
Nelson told them she felt she was being singled out because of her race.
Zamel and Takata told Nelson that the four attorneys for whom she worked
were unhappy with her, and Zamel accused Nelson of “time-sheet fraud, bad
attendance, chronic lateness and excessive phone and Internet usage.” Takata told
Nelson, “Black people have come a long way and you should be ashamed of
cheating the firm.” Nelson alleged that no attorneys had raised any issues with her
prior to this meeting and that Zamel and Takata did not allow her to review reports
documenting the accusations against her.
After the May 2007 meeting, Nelson sent an email to David Williams, the
firm’s Human Resources Director, telling him she had experienced discrimination,
retaliation, and harassment because of her race. Williams subsequently called
Nelson, told her he had reviewed her personnel file, and had concluded that Nelson
was at fault.
In a memo to Nelson’s personnel file following the May 2007 meeting,
Zamel wrote that, after receiving reports of Nelson spending excessive time on the
Internet and on personal phone calls, the human resources department examined
her usage and found Internet usage of six hours on four randomly selected days
5
and personal phone usage from 45 minutes to three hours on each of those days.
Zamel further wrote that she had confirmed that Nelson did not take the initiative
to ask for work from any of the four attorneys assigned to her. In addition, Miller
had noticed discrepancies on Nelson’s timesheets and the actual time she had
arrived at work, based on her cardkey reports. The memo also stated that Nelson
had arrived to work late every day in April 2007. According to Zamel’s memo,
Nelson agreed during the meeting to stop using the Internet for personal business,
decrease her personal phone calls, report her hours accurately, arrive at work on
time, and take the initiative to assist the four attorneys.
Nelson took a medical leave of absence beginning May 29, 2007, because of
emotional trauma resulting from the alleged “harassment and discrimination.” She
filed a complaint with the EEOC in August 2007. She later alleged that she
experienced retaliation when she returned to work on June 2, 2008, stating that she
was assigned to work as a floater and was “ostracized and shunned” because of her
EEOC complaint. In September 2008, Nelson was reprimanded for missing a
training class, although others who had missed the class were not reprimanded. In
November 2008, she was temporarily blocked from the email system because her
name was “in the ‘termination’ file,” although Zamel later told her this was a
mistake. Nelson also was contacted by a legal recruiter who was under the
impression that Nelson had been fired.
As another example of disparate treatment, Nelson stated that James Childs,
a senior partner, repeatedly chastised her work performance and, at one point,
snatched her glasses off her face and said, “You need to get some new fucking
glasses!”
Nelson also asserted that Jones Day began to give her pretextual negative
reviews in preparation for her termination. For example, in January 2009, Childs
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and another attorney, Sophia Chang, chastised Nelson for taking too long to create
file folders and for a typographical error in a letter from June 2008. Nelson alleged
that, after she filed a second EEOC complaint in March 2009, she was shunned by
many employees, she was refused permission to view her personnel file, and when
she was allowed to view it, she noticed that she had received negative evaluations
for the first time in her career.
In November 2008, Nelson received an email from Aaron Agenbroad, an
African American partner who said he would be investigating her claims of
harassment, discrimination, and retaliation. Agenbroad met Nelson in December
2008 and corresponded with her through January 2009. He interviewed twelve
other witnesses and concluded his investigation in February 2009. Agenbroad
acknowledged that a number of people raised concerns about disparate treatment
by personnel in the Los Angeles office’s human resources department, including
the perception that they played favorites among the staff. However, he concluded
that the preferential treatment was not based on race or any other protected
characteristic, noting that members of many different racial groups had received
preferential treatment.
In his memo summarizing his investigation, Agenbroad concluded that,
although Nelson was upset by her interactions with the human resources personnel,
he did not find disparate treatment of employees based on race. He further
concluded that the firm’s dealings with Nelson, such as monitoring her Internet
usage and processing her unemployment and other benefits claims, were not
tainted by racial or retaliatory animus. Agenbroad did, however, find it troubling
that neither Zamel nor Takata had made any effort to investigate Nelson’s prior
complaints of discrimination.
7
Nelson filed the instant action in May 2009. She filed a second amended
complaint in September 2010, alleging eight causes of action: (1) harassment
based on race in violation of the California Fair Employment and Housing Act
(FEHA) (Gov. Code, § 12900 et seq.); (2) discrimination based on race in violation
of FEHA; (3) failure to prevent unlawful harassment, discrimination and retaliation
in violation of FEHA; (4) failure to investigate racial harassment in violation of
FEHA; (5) retaliation in violation of FEHA; (6) tortious discharge in violation of
public policy; (7) intentional infliction of emotional distress; and (8) negligent
infliction of emotional distress. Jones Day filed a motion for summary judgment
or summary adjudication in March 2011.
Nelson did not oppose Jones Day’s motion for summary adjudication of her
first (racial harassment), fourth (failure to investigate harassment), and eighth
(negligent infliction of emotional distress) causes of action. After holding a
hearing, the trial court granted Jones Day’s motion for summary judgment and
entered judgment in favor of Jones Day.
DISCUSSION
Appellant contends that the trial court erred in granting summary judgment
as to her claims for retaliation, violation of public policy, discrimination, failure to
prevent discrimination, and intentional infliction of emotional distress.1
1
Jones Day asserts that we should dismiss Nelson’s appeal because her opening
brief was filed a few days late. However, such a dismissal is only discretionary. (Cal.
Rules of Court, rule 8.220.) “It is the accepted policy of the courts to encourage hearings
of appeals on their merits and a dismissal on technical grounds is not favored where it
does not appear that the delay caused material detriment to the respondent.” (Peak v.
Nicholson (1943) 61 Cal.App.2d 355, 359.) Moreover, a request that an appeal be
dismissed for failure to timely file a brief will be denied where the brief is already on file
8
“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.]” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 (Guz).)
“Declarations of the moving party are strictly construed, those of the opposing
party are liberally construed, and doubts as to whether a summary judgment should
be granted must be resolved in favor of the opposing party.” (Johnson v. United
Cerebral Palsy/Spastic Children’s Foundation (2009) 173 Cal.App.4th 740, 754
(Johnson).) Because Jones Day is the moving party, it has “the burden of
demonstrating as a matter of law, with respect to each of the plaintiff’s causes of
action, that one or more elements of the cause of action cannot be established, or
that there is a complete defense to the cause of action. [Citations.] If a defendant’s
presentation in its moving papers will support a finding in its favor on one or more
elements of the cause of action or on a defense, the burden shifts to the plaintiff to
present evidence showing that contrary to the defendant’s presentation, a triable
issue of material fact actually exists as to those elements or the defense.” (Id. at p.
753.)
“California has adopted the three-stage burden-shifting test established by
the United States Supreme Court for trying claims of discrimination,” set forth in
McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. (Guz, supra, 24 Cal.4th
at p. 354.) The test requires the plaintiff to establish a prima facie case of
employment discrimination by providing evidence that (1) he was a member of a
protected class; (2) he was qualified for or performing competently in the position;
(3) he suffered an adverse employment action, such as termination; and (4) some
at the time the request is made. (Ibid.) We therefore decline Jones Day’s request that we
dismiss the appeal on this ground.
9
circumstance indicates a discriminatory motive. (Id. at pp. 354-355.) The
plaintiff’s burden of establishing a prima facie case “is not onerous, but it does
require the plaintiff to present evidence of actions taken by the employer from
which the trier of fact can infer, if the actions are not explained by the employer,
that it is more likely than not that the employer took the actions based on a
prohibited discriminatory criterion.” (Johnson, supra, 173 Cal.App.4th at pp. 754-
755.) If the plaintiff establishes his prima facie case, “a rebuttable presumption of
discrimination arises and the burden shifts to the employer to rebut the
presumption with evidence that its action was taken for a legitimate,
nondiscriminatory reason.” (Id. at p. 755.)
“Finally, if the defendant presents evidence showing a legitimate,
nondiscriminatory reason, the burden again shifts to the plaintiff to establish the
defendant intentionally discriminated against him or her. [Citation.] The plaintiff
may satisfy this burden by proving the legitimate reasons offered by the defendant
were false, creating an inference that those reasons served as a pretext for
discrimination. [Citation.]” (Wills v. Superior Court (2011) 195 Cal.App.4th 143,
160.)
“[T]o 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. [¶] . . .
[¶] As several federal courts have stated: ‘The [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
10
employer is wise, shrewd, prudent, or competent. [Citations.]’” (Hersant v.
Department of Social Services (1997) 57 Cal.App.4th 997, 1004-1005.)
I. Retaliation
Nelson’s first argument is that she has raised triable issues of material fact as
to her claim for retaliation. “In order to establish a prima facie case of retaliation
under [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.’ (Yanowitz [v. L’Oreal USA, Inc. (2005)] 36 Cal.4th [1028,]
1042 [Yanowitz].)” (McCoy v. Pacific Maritime Assn. (2013) 216 Cal.App.4th
283, 298.) “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.
[Citation.]” (Yanowitz, supra, 36 Cal.4th at p. 1042.)
In support of the first required element, Nelson contends that she engaged in
protected activity by complaining about racial discrimination several times prior to
the May 2007 meeting with Zamel and Takata. She cites Agenbroad’s comment
that Zamel and Takata did not investigate Nelson’s prior complaints about
discrimination. She also cites the email she sent in 2005 to McKnight, Lui, Takata,
and Zamel, stating that she was being discriminated against by Jones Day on the
basis of race. Jones Day does not dispute that Nelson engaged in protected
activity.
11
Jones Day also does not dispute that Nelson suffered the adverse
employment action of having her employment terminated. Jones Day does,
however, disagree with Nelson’s contention that she was subjected to other adverse
employment actions: the May 23, 2007 meeting with Zamel and Takata, the
November 2008 incident in which she was unable to access the firm email because
it was reported that she had been terminated, and the report to a legal recruiter that
she had been terminated.
“The inquiry as to whether an employment action is adverse requires a case-
by-case determination based upon objective evidence. [Citation.]” (Thomas v.
Department of Corrections (2000) 77 Cal.App.4th 507, 510-511 (Thomas).) “[T]o
be actionable, the retaliation must result in a substantial adverse change in the
terms and conditions of the plaintiff’s employment. A change that is merely
contrary to the employee’s interests or not to the employee’s liking is insufficient.”
(Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1455.)
“‘Work places are rarely idyllic retreats, and the mere fact that an employee
is displeased by an employer’s act or omission does not elevate that act or
omission to the level of a materially adverse employment action.’ [Citation.] If
every minor change in working conditions or trivial action were a materially
adverse action then any ‘action that an irritable, chip-on-the-shoulder employee did
not like would form the basis of a discrimination suit.’ [Citation.]” (Thomas,
supra, 77 Cal.App.4th at p. 511.)
Even construing Nelson’s allegations liberally, the May 23, 2007 meeting,
her temporary inability to access her email, and a report to a legal recruiter that she
had been terminated do not constitute substantial adverse changes in the terms and
conditions of her employment. Thus, the only adverse employment action Nelson
12
suffered was her termination. In order to establish a prima facie case, Nelson must
establish a causal link between her protected activities and her termination.
As evidence of a causal link, Nelson relies on Zamel’s alleged statement
during the May 2007 meeting that Nelson was being singled out as “payback” for
her having complained about Zamel and other people at the firm. Zamel’s
statement does not support an inference that Nelson’s termination was based on her
race. The context indicates that Nelson’s reference to being “singled out” was a
reference to the disciplinary meeting itself, which took place more than three years
before Nelson’s termination. Moreover, although Zamel’s alleged statement may
indicate a personal grudge behind Zamel’s treatment of Nelson during the May
2007 meeting, it does not indicate that Nelson’s termination three years after this
meeting was based on race.
Nelson also argues that Agenbroad’s finding that Zamel and Takata gave
preferential treatment to certain employees is strong circumstantial evidence of
retaliation. Agenbroad specifically stated, however, that he found no evidence that
the preferential treatment was based on a protected status. Instead, he found that
the preferential treatment was not based on race at all, pointing out that employees
of different races received the preferential treatment.
Nelson further contends that the negative performance evaluations she
received after her second EEOC complaint constitute evidence of retaliation.
Although the record indicates that Nelson received generally positive performance
evaluations in 2005 and 2006, evaluations of Nelson prior to her second EEOC
complaint indicate that several attorneys had expressed concern with the very
issues raised by Zamel and Takata during the May 2007 meeting.
For example, in 2005, Daniel Lucas rated Nelson as satisfactory or in need
of improvement in most areas, stating that she was late or absent quite often. In
13
May 2007, Lovrien gave Nelson a satisfactory evaluation, but he indicated that
Nelson could improve in her attention to detail, setting forth two examples of
important mistakes she had made. He also stated that Nelson’s attendance and
timeliness needed improvement. In 2007, Forgione indicated that Nelson was
satisfactory, but he wanted her to improve in her attendance, stating that she was
tardy and absent too often. He also indicated that she often made personal phone
calls and did not take the initiative to ask for work when she was available.
Thus, contrary to Nelson’s contention, her evaluations prior to her complaint and
her EEOC claims were not uniformly positive, and her contention that Zamel and
Takata “manufactured” the concerns they raised in the May 2007 meeting is belied
by the evidence.
The only other performance evaluations in the record are the negative
evaluations that Nelson cites as evidence of retaliation. Those three evaluations
were completed in November 2009, which was after Nelson filed the complaint in
this case and her second EEOC claim, and shortly before her termination in June
2010. The evaluations state that Nelson was not “particularly interested in being
helpful,” “spent most of the day on personal calls,” was “never at the desk,” “did
not touch base,” and “was not always at her desk when I needed her.” The
evaluations viewed as a whole indicate a consistency over the years in the concerns
expressed about Nelson’s performance. Because the concerns expressed by the
2009 evaluations are similar to the concerns raised in the 2005 and 2007
evaluations, they do not support an inference that the negative evaluations were
completed in retaliation for Nelson’s protected activity.
Nelson also contends that Jones Day actively solicited the negative
evaluations about her, which would support an inference that Jones Day “was
engaged in a search for a pretextual basis for discipline.” (Yanowitz, supra, 36
14
Cal.4th at 1062.) There is, however, no evidence to support this contention. In
fact, one of the 2009 evaluators indicated remorse about giving Nelson a bad
review, expressing the possibility that she had higher standards than normal
because her other secretary was “awesome.” There is simply no evidence to
support the inference that the negative evaluations from 2009 were pretextual.
Even if Nelson had established a prima facie case by showing a causal link
between her termination and her protected activity, Jones Day has produced a
legitimate, nonretaliatory reason for the adverse employment action. (Yanowitz,
supra, 36 Cal.4th at p. 1042.)
Jones Day submitted evidence that Nelson was terminated as part of a
restructuring of the firm. In spring of 2010, the Los Angeles office had
approximately 30 fewer attorneys than it had in prior years, but the number of staff
was the same, and the increased use of technology had decreased the need for
support staff. Lovrien, the partner in charge of the Los Angeles office, stated in a
declaration that he and McKnight therefore decided to eliminate nine secretarial
positions and six legal support positions.
As part of the restructuring, all of the secretaries and other support staff were
eligible for termination. In order to determine who would be discharged, Lovrien
asked personnel in the human resources department to rank the secretaries, based
on criteria such as supervisory evaluations, ability to work on difficult
assignments, attendance, and ability to work with others. Nelson was ranked in the
bottom 2 out of 43 secretaries. After Zamel, Takata, and Miller completed their
rankings of the secretaries, Lovrien asked for an independent review of the
evaluations by Lori Bounds, who worked in Jones Day’s Dallas office. Bounds
conducted an analysis of the evaluations in order to determine that no race or
protected category would be disproportionately affected by the layoffs. The
15
evaluations then were reviewed by Lovrien and McKnight before the final
decisions were made. Nine secretaries were laid off, two of them African
American. Jones Day has presented evidence showing a legitimate, nonretaliatory
reason for the action. The burden therefore shifts back to Nelson to prove
intentional retaliation. (Yanowitz, supra, 36 Cal.4th at p. 1042.)
Nelson does not dispute that she was terminated as part of the restructuring
of the firm or that the human resources personnel ranked the secretaries in order to
determine which secretaries were to be discharged. Instead, she argues that the
employees who ranked the secretaries had previously demonstrated bias against
her by ignoring her complaints, “playing favorites,” and conducting the May 2007
meeting, which she describes as a “two-hour beat down.” She also points out that
when Lovrien began planning the reduction in the workforce, he consulted counsel
to see if Nelson could be terminated.
Lovrien stated in his deposition that, after McKnight decided to do a
restructuring of the firm, Lovrien consulted counsel to ensure that it was done in
accordance with the law. He also was concerned about the restructuring because
of Nelson’s ongoing lawsuit against the firm. The fact that Lovrien consulted
counsel before laying off nine secretaries does not support the inference that the
termination was prompted by a discriminatory motive.
Moreover, as discussed above, there is no evidence that Takata and Zamel
were motivated by discriminatory animus in their evaluation of Nelson, other than
the “payback” comment, their conduct of the May 2007 meeting, and their
preferential treatment of various employees. We conclude that Nelson has failed to
raise a triable issue of material fact as to her claim for intentional retaliation.
16
II. Violation of Public Policy
Nelson’s second argument is that she has raised triable issues of material
fact as to her claim for wrongful termination in violation of public policy. Her
complaint alleged that she was terminated in violation of public policy pursuant to
FEHA. In opposition to summary judgment, she argued that she was terminated in
retaliation for reporting Forgione’s alleged billing fraud. On appeal, she relies on
the alleged fraud as the basis for her claim.2
To establish a claim for wrongful termination in violation of public policy,
Nelson must show that (1) she was employed by Jones Day; (2) her employment
was terminated; (3) the violation of public policy was a motivating reason for the
termination; and (4) the termination caused her damages. (Haney v. Aramark
Uniform Services, Inc. (2004) 121 Cal.App.4th 623, 641.)
Nelson’s only evidence that Forgione engaged in fraud is her declaration
stating that he instructed her to complete his timesheets without giving her
sufficient information. Her declaration states that he provided her the client name
and narrative, but not the amount of time he spent on each task. Nelson argues that
the California Penal Code prohibits defrauding another person out of money, citing
general theft statutes, and that the California Rules of Professional Responsibility
require that lawyers act honestly in their dealings with clients. Her vague
allegations do not, however, constitute sufficient evidence to raise an issue of fact
as to her claim that Forgione engaged in billing fraud.
2
Jones Day argues that Nelson cannot rely on the alleged fraud because she raised it
for the first time in her opposition to summary judgment. We disagree. Although she did
not specifically cite the alleged fraud as to her cause of action for wrongful termination in
violation of public policy, she incorporated by reference and realleged the allegation that
she reported Forgione’s alleged billing fraud in discussing her public policy cause of
action.
17
Even if Nelson had presented sufficient evidence that Forgione engaged in
fraud, she has presented no evidence whatsoever that she was terminated in
retaliation for reporting this conduct. Her declaration indicates that she reported
Forgione’s conduct when she worked for him from 2006 until mid-2007, and she
was not terminated until 2010. There is no evidence that her report of Forgione’s
conduct was considered at all in her termination. Nelson has failed to raise a
triable issue as to her claim for wrongful termination in violation of public policy.
III. Discrimination Based on Race and Failure to Prevent Discrimination
Nelson contends that her claims for racial discrimination and failure to
prevent discrimination should proceed to a jury because she presented evidence
that Jones Day’s dealings with her were pretextual. As discussed above, Nelson
has failed to show that Jones Day’s actions were pretextual. She has failed to
establish a claim for racial discrimination, and she cannot claim a failure to prevent
discrimination if her claim for discrimination fails. (Thompson v. City of Monrovia
(2010) 186 Cal.App.4th 860, 880.)
IV. Intentional Infliction of Emotional Distress
Finally, Nelson contends that she has raised triable issues of material fact as
to her intentional infliction of emotional distress claim. We disagree. “An
essential element of such a claim is a pleading of outrageous conduct beyond the
bounds of human decency. [Citations.] Managing personnel is not outrageous
conduct beyond the bounds of human decency, but rather conduct essential to the
welfare and prosperity of society. A simple pleading of personnel management
activity is insufficient to support a claim of intentional infliction of emotional
distress, even if improper motivation is alleged. If personnel management
18
decisions are improperly motivated, the remedy is a suit against the employer for
discrimination.” (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55,
80.) Nelson’s termination was a personnel management decision and is thus
insufficient to support her intentional infliction of emotional distress claim.
DISPOSITION
The judgment is affirmed. Respondent is entitled to costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
EPSTEIN, P. J.
SUZUKAWA, J.
19