Stephens v. Coldwell Banker Commercial Group, Inc.

• Decision Date: 01 April 1988
• Docket Number: No. A033588,A033588
• Citation: 245 Cal.Rptr. 606,199 Cal.App.3d 1394
• Court: California Court of Appeals Court of Appeals
• Parties: , 54 Fair Empl.Prac.Cas. (BNA) 1102 William STEPHENS, Jr., Plaintiff and Appellant, v. COLDWELL BANKER COMMERCIAL GROUP, INC., et al., Defendants and Appellants.

Page 606

245 Cal.Rptr. 606

199 Cal.App.3d 1394, 54 Fair Empl.Prac.Cas. (BNA) 1102

William STEPHENS, Jr., Plaintiff and Appellant, v. COLDWELL BANKER COMMERCIAL GROUP, INC., et al., Defendants and Appellants.

No. A033588.

Court of Appeal, First District, Division 5, California.

April 1, 1988.

Certified for Partial Publication ^*

Steven G. Zieff, Mark S. Rudy, San Francisco, for plaintiff and appellant.

Wallace L. Rosvall, Ellis D. Reiter, Jr., Los Angeles, for defendants and appellants.

LOW, Presiding Justice.

Plaintiff William Stephens brought this action against his employer, Coldwell Banker Commercial Group, Inc., and Coldwell Banker Real Estate Management Services (collectively referred to as defendant), claiming he was demoted because of his age, in violation of California's Fair Employment and Housing Act. (Gov.Code, § 12900 et seq.) A jury found defendant had unlawfully discriminated against plaintiff and awarded plaintiff $325,035. Plaintiff cross-appeals on the ground his motion for attorney fees was denied. We hold that California courts may rely on the federal Age Discrimination in Employment Act (29 U.S.C. § 621 et seq.) in interpreting analogous provisions of California's Fair Employment and Housing Act. We conclude the jury's verdict was fully supported and affirm the trial court's denial of attorney fees, but award attorney fees on appeal.

Plaintiff began working for defendant in 1951 as a property manager, and in 1954 he became building manager for the Flood Building in San Francisco. In 1975, at the building owner's request, plaintiff moved his office to the building and was given the additional title of "real estate manager" with increased responsibilities for the day-to-day operation of the Flood Building. As the real estate manager, plaintiff was entitled to additional compensation in the form of leasing commissions and incentive pay based on the rents collected in the building.

In June 1981, John Mock, age 37, was selected to be district manager of defendant's San Francisco/Oakland office. Mock supervised the real estate managers, including plaintiff who was then 63 years of age. The Flood Building was the major account under Mock's supervision, and plaintiff was the oldest and most highly compensated manager in the district. On January 12, 1982, Mock informed plaintiff that he was being replaced as real estate manager at the Flood Building by 37-year-old John Leones, and that 45 percent of plaintiff's compensation based on leasing commissions and incentive fees for the Flood Building would be taken from him. However, plaintiff would remain on site at the Flood Building and continue his duties as the building manager at a reduced salary. It was stipulated by the parties that as a result of the demotion plaintiff lost $22,934 in compensation.

Plaintiff believed he had been demoted because of his age and filed a charge of discrimination with the Department of Fair Employment and Housing. (Gov.Code, §§ 12930, 12960.) Subsequently, he received a right-to-sue letter; and on April 8, 1983, he filed a complaint alleging unlawful age discrimination under California's Fair Employment and Housing Act. After trial, the jury returned a verdict for plaintiff's lost compensation at $25,035, damages for plaintiff's emotional distress at $100,000, and punitive damages at $200,000.

I

The Fair Employment and Housing Act provides that the opportunity to hold employment without discrimination because of age is a civil right. (Gov.Code, § 12921.) Because the language and objectives of California's Fair Employment and Housing Act as it relates to age discrimination closely parallel the language and objectives of the federal Age Discrimination in Employment Act (29 U.S.C. § 621 et seq.), we refer to federal decisions where appropriate. (Kubik v. Scripps College (1981) 118 Cal.App.3d 544, 552, 173 Cal.Rptr. 539.) Both parties rely on the legal analysis developed by the federal cases, and we note that the precedential decisions of the Fair Employment and Housing Commission dealing with age discrimination, which "serve as precedent" in interpreting the state act, similarly rely upon cases brought under the federal act. (Gov.Code, § 12935, subd. (h); see Department of Fair Employment & Housing v. Smitty's Coffee Shop (1984-1985 Precedential Dec.) Dec. No. 84-25; Department of Fair Employment & Housing v. Carefree Ranch Mobile Home Park (1984-1985 Precedential Dec.) Dec. No. 84-31; Department of Fair Employment & Housing v. United Airlines, Inc. (1982-1983 Precedential Dec.) Dec. No. 82-05.)

In most employment discrimination cases, direct evidence of the employer's discriminatory intent is unavailable or difficult to acquire. The United States Supreme Court has set forth an indirect method of proof that relies on presumptions and shifting burdens. (McDonnell Douglas Corp. v. Green 1973) 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668; Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248, 252-253, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207.) This analytical framework has been adopted by California courts in evaluating claims of employment discrimination under state legislation. (See, e.g., Mixon v. Fair Employment & Housing Com. (1987) 192 Cal.App.3d 1306, 1317-1319, 237 Cal.Rptr. 884; Ibarbia v. Regents of University of California (1987) 191 Cal.App.3d 1318, 1326-1328, 237 Cal.Rptr. 92; County of Alameda v. Fair Employment & Housing Com. (1984) 153 Cal.App.3d 499, 504, 200 Cal.Rptr. 381.) The trial court properly employed this method of proving age discrimination in the instant case.

To establish his prima facie case of employment discrimination, plaintiff had the burden of proving by a preponderance of the evidence that he was within a protected class, that he was performing satisfactorily as real estate manager at the Flood Building, and that he was demoted "under circumstances which give rise to an inference of unlawful discrimination." ( Texas Dept. of Community Affairs v. Burdine, supra, 450 U.S. at p. 253, fn. omitted, 101 S.Ct. at 1094.) Once the prima facie case was established, a presumption of discrimination was raised and the burden shifted to defendant to produce evidence that plaintiff was demoted for a legitimate nondiscriminatory reason. ( Id., at p. 254, 101 S.Ct. at 1094.) Plaintiff then had an opportunity to prove that "a discriminatory reason more likely motivated the employer" or that the employer's proffered explanation was "unworthy of credence." ( Id., at p. 256, 101 S.Ct. at 1095.) The plaintiff's burden of showing that the employer's explanation was a pretext for discrimination "merges with the ultimate burden of persuading the court that [the employee] has been the victim of intentional discrimination." (Ibid.)

Defendant contends that the jury could not reasonably conclude that age was a determining factor in plaintiff's demotion and that the jury verdict must be overturned as contrary to the evidence and based on speculation and conjecture. We disagree. Plaintiff was replaced by a person 26 years younger. Defendant concedes plaintiff produced substantial evidence of satisfactory job performance. This evidence was sufficient to establish a prima facie case and shifted the burden to defendant to produce evidence of a legitimate nondiscriminatory reason for demoting plaintiff. (Maxfield v. Sinclair Intern. (3d Cir.1985) 766 F.2d 788, 792-793; Douglas v. Anderson (9th Cir.1981) 656 F.2d 528, 533.) Defendant asserted plaintiff was replaced as real estate manager at the Flood Building because his performance was substandard. Defendant tried to show that plaintiff was demoted because of the large number of rental delinquencies at the Flood Building, the high janitorial and maintenance costs, and plaintiff's failure to comply with requests made by his supervisor. Plaintiff claimed his performance as real estate manager at the Flood Building was at all times adequate and defendant's criticisms were unworthy of credence. Thus, the issue at trial was framed by these opposing factual contentions.

The jury rejected as pretextual defendant's claim that it demoted plaintiff because he was performing unsatisfactorily and held plaintiff was a victim of age discrimination. We are bound by that finding if there is substantial evidence to support it. (Estate of Leslie (1984) 37 Cal.3d 186, 201, 207 Cal.Rptr. 561, 689 P.2d 133.) Plaintiff began his employment with defendant in 1951 when he was in his early 30's, and remained continually employed until he retired in 1985. The jury had before it evidence that plaintiff had consistently been recognized for his outstanding job performance. In fact, plaintiff was listed as one of defendant's top 10 property managers during calendar year 1979 and as one of defendant's top 12 real estate managers for calendar year 1981. Past recognition for superior job performance is "highly relevant" to counter a company's allegations that an adverse employment action was taken because of poor job performance. (Graefenhain v. Pabst Brewing Co. (7th Cir.1987) 827 F.2d 13, 18-19.)

Moreover, there was additional evidence that suggested defendant's explanation for plaintiff's demotion was a pretext. Shortly after becoming plaintiff's supervisor, Mock made several inquiries about plaintiff's retirement plans. He also made known his intention to get rid of "long-term nonproducers," mentioning plaintiff by name. Once it was clear plaintiff had no plans to retire, several memos were written by Mock criticizing plaintiff's management of the Flood Building. Plaintiff specifically rebutted each of Mock's claimed deficiencies in his performance and presented evidence that (1) defendant's computerized accounting system was largely responsible for the high number of rental delinquencies in the building; (2) maintenance and operational costs at the Flood Building were not inordinately high and were consistent with the wishes of Mr. Flood; and (3) he...