Addy v. Bliss & Glennon

Citation44 Cal.App.4th 205,51 Cal.Rptr.2d 642
Decision Date08 April 1996
Docket NumberNo. H013602,H013602
CourtCalifornia Court of Appeals
Parties, 70 Fair Empl.Prac.Cas. (BNA) 965, 96 Cal. Daily Op. Serv. 2516, 96 Daily Journal D.A.R. 3981 Iula ADDY, Plaintiff and Appellant, v. BLISS & GLENNON et al., Defendants and Respondents.

Donfeld, Kelley & Rollman, Paul M. Kelley, Amy Semmel, Los Angeles, for Defendants and Respondents.

COTTLE, Presiding Justice.

Iula Addy appeals the summary judgment entered in favor of her former employer, Bliss and Glennon (B & G), in this employment discrimination action. Her primary contention on appeal is that the trial court applied the incorrect standard in granting summary judgment. She contends that B & G was required to "negate each of the theories of liability contained in the complaint" (capitalization omitted) before it would have been entitled to summary judgment. B & G, in contrast, argues that it "may show a cause of action has no merit [merely] by pointing out to the court the absence of essential evidence to support some element of plaintiff's case." Although we agree with Addy that a moving defendant may not shift the burden to the plaintiff to put on a prima facie case simply by pointing out to the court the absence of essential evidence to support plaintiff's case, and that a defendant must make an affirmative showing in support of his or her motion, we conclude that B & G has made a sufficient showing here to entitle it to summary judgment. Accordingly, we shall affirm the judgment.

FACTS

Addy, an Asian, received an A.A. degree in computer-aided office management from Condie Junior College in 1985. From 1986 to 1988, she worked for Weber Insurance Service assisting employees in operating computer terminals. From 1988 until 1990 she worked at Wallis and Wallis insurance agency.

On July 17, 1990, Addy was hired as an "underwriting assistant" by B & G, a corporation engaged in underwriting wholesale insurance, and was assigned to its Morgan Hill branch office. She received a salary of $2,000 per month, plus overtime. Her primary job responsibility was to issue policies.

In late 1990, Addy received a generally favorable performance review, and her salary was increased to $2,050 per month plus overtime. She did not receive a performance review during 1991, as the company did not issue any that year. In February 1992, Addy went on maternity leave, returning in May. Upon her return, Addy's supervisor, Carol Marquez, permitted Addy to begin and end work early to accommodate a child-care scheduling problem.

In June 1992, B & G advertised for a management trainee position. The salary for the management trainee position was $250 per month less than what Addy was earning at the time. Both Addy's position ("underwriting assistant") and the advertised position ("management trainee") offered the identical promotional opportunity--to "underwriter."

B & G's newspaper advertisements for the position read: "MANAGEMENT TRAINEE. College grad to learn surplus insurance field. Some office exper. helpful, but not nec. Office in Morgan Hill w/some training in L.A. req'd. Send resume to...." As a result of this job search, B & G hired a college graduate named Jose Ochoa.

Addy mailed an application for the management trainee position to B & G's main branch on June 15, 1992. However, by the time the application was received, B & G had already hired Mr. Ochoa.

Just a few days before Addy mailed in her application for the management trainee position, the president of B & G, Robert Abramson, had called a telephonic meeting with the Morgan Hill supervisor, Carol Marquez, and the two underwriting assistants, Addy and Penny Robinson, to address tardiness in issuing policies and persistent mistakes in the policies once issued. Abramson stated that these problems, which had come to light because of customer complaints, had to be corrected immediately and that policies needed to be issued correctly in the first place. Some of the problems involved Addy's work before she went on maternity leave.

On June 17, 1992, Addy called Abramson to ask whether he had received her resume for the management trainee position. He told her that the position was not a promotion for her, as it paid less than she was receiving, and that B & G had already hired Jose Ochoa, who met the job qualifications which included a four-year college degree.

The next day, Addy called in sick and went to the Equal Employment Opportunity Commission (EEOC) to file a charge of race and sex discrimination based on not having been selected for the position of management trainee.

When Jose Ochoa was hired, some of the work of the two underwriting assistants was transferred to him. According to Addy, this was very demoralizing. She made errors in issuing policies which were documented in the regular course of business in memoranda dated July 14, 1992, July 16, 1992, July 17, 1992, July 27, 1992, and February 11, 1993. Even after additional training, Addy did not appear to her supervisor to grasp the essentials of proper policy issuance. In addition, she repeatedly failed to issue policies within 30 days of a request for coverage, renewal or amendment, as is B & G's policy. Finally, numerous customers complained to B & G about Addy's telephone manner and her failure to follow up on calls and to issue policies.

In July 1992, Penny Robinson, the other underwriting assistant, and Jose Ochoa, the newly-hired management trainee, asked if they too could work flex-time like Addy. In response to their request, and to assure late afternoon coverage, Carol Marquez issued a memorandum on July 24, 1992, stating: "Due to the fact that we cannot discriminate by allowing some people to have flex time and some not, there will be no flex time permitted in the Morgan Hill office."

The following day, Addy failed to appear at a training session scheduled to address various policy issuance matters.

Based on the loss of her flex-time, Addy filed a second charge with the EEOC. In the charge, she alleged B & G transferred some of her work to Ochoa and eliminated her flex-time schedule "in retaliation for having filed my prior charge with EEOC."

On October 15, 1992, Addy received a "less than satisfactory" performance review and was put on three months' probation. In January 1993, Marquez discovered several policies on Addy's desk that had been pending for 30 days or more. In addition, Marquez received at least four complaints from customers regarding Addy's failure to issue policies or errors made in issued policies. At that point, Marquez and the other underwriting assistant issued all the overdue policies. Addy's work output at that time was half that of another employee performing the same job function.

On February 2, 1993, a B & G vice-president met with Addy and explained that the company could no longer tolerate Addy's "subpar" performance. She was given three options: termination, demotion with pay cut, or resignation with severance pay to be determined by the board of directors. Addy asked for time to consider the options. The next day the vice-president informed Addy that the board had authorized $4,000 in severance pay. He stated the offer remained open through February 5 and that Addy could take the next three days off with pay to consider her decision. He also stated that if she returned to work on Monday February 8, 1993, she would be deemed to have accepted the demotion option.

On February 4, 1993, Addy filed a third charge with the EEOC, complaining she had been denied training and was being discriminated against because of filing her previous two charges.

On February 8, 1993, Addy reported for work and her job title became "Senior Clerk" with a salary of $17,200 per year. She worked through February 12, but did not report to work after that.

On May 27, 1993, Addy filed a fourth charge with the EEOC, alleging demotion and constructive discharge in retaliation for filing earlier charges.

STANDARD OF REVIEW

A summary judgment may be granted where it is shown that the "action has no merit or that there is no defense" thereto. (Code Civ. Proc., § 437c, subd. (a).) To In 1992, the Legislature amended section 437c to define what a moving party must prove in order to show that the responding party's cause of action has no merit: "A cause of action has no merit if one or more of the elements of the cause of action, even if not separately pleaded, cannot be established, or if there is a complete defense to the cause of action." (Code Civ. Proc., § 437c, [former] subd. (f), Stats.1992, ch. 1348, § 1, p. 5718.) In addition, the Legislature set forth for the first time the moving party's substantive burden on a motion for summary judgment. Where the moving party is a defendant, that party "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, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant ... has met that burden, the burden shifts to the plaintiff ... to show that a triable issue of one or more material facts exists as to that cause of action." (Code Civ. Proc., § 437c, [former] subd. (n)(2), Stats.1992, ch. 1348, § 1, pp. 5719-5720.)

make this showing, the moving party must set forth admissible evidence establishing "that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).)

In 1993, the Legislature added the following language at the end of subdivision (n)(2), which was redesignated subdivision (o)(2): "... or a defense thereto. The plaintiff ... may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists...

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