Colarossi v. Coty Us Inc.

• Decision Date: 24 April 2002
• Docket Number: No. G027368.,G027368.
• Citation: 97 Cal.App.4th 1142,119 Cal.Rptr.2d 131
• Court: California Court of Appeals Court of Appeals
• Parties: Kimberly COLAROSSI, Plaintiff and Appellant, v. COTY US INC., Defendant and Respondent.

119 Cal.Rptr.2d 131

97 Cal.App.4th 1142

Kimberly COLAROSSI, Plaintiff and Appellant, v. COTY US INC., Defendant and Respondent.

No. G027368.

Court of Appeal, Fourth District, Division 3.

April 24, 2002.

Stanton T. Mathews & Associates and Ronald B. Funk, Irvine, for Plaintiff and Appellant.

Oppenheimer Wolff & Donnelly, Paul C. Nyquist and Grace Y. Horoupian, Newport Beach, for Defendant and Respondent.

OPINION

BEDSWORTH, J.

Kimberly Colarossi appeals from a summary judgment in favor of Coty U.S. Inc. (Coty) on her claim for wrongful termination in violation of public policy. She contends the court improperly weighed the evidence in reaching its decision. She also contends the court erroneously excluded highly relevant evidence, which, along with the other evidence she presented, is sufficient to create a triable issue of fact as to why she was terminated. Although we find Colarossi's first contention unmeritorious, we agree with her second one. Because the evidence would allow a reasonable trier of fact to find Colarossi was wrongfully terminated, we reverse the judgment.

* * *

Coty is a leading manufacturer and marketer of perfume. In 1987, Colarossi joined the company as a merchandising specialist. Her job was to visit retailers and make sure Coty's products were being promoted and displayed properly. By all accounts, Colarossi was an exceptional employee. In fact, in 1997 she was named Coty's top merchandiser in the entire nation. Deborah Bassett, the director of merchandising, personally selected Colarossi for this prestigious award.

A short time later, in May of 1997, Colarossi's supervisor, DeAnna Roe, accused Bassett of sexual harassment. Because Roe named Colarossi as one of the witnesses to the alleged harassment, the company sought to interview Colarossi as part of its investigation into the matter. After being assured her statements would remain confidential, Colarossi disclosed to an investigator that she had witnessed Bassett engage in what she considered to be sexually inappropriate behavior. Other employees who were interviewed made similar disclosures.

The investigation culminated with Bassett being reprimanded for her conduct. However, the company took no other action against her. Roe, on the other hand, was told she would have to transfer to another state if she wanted to keep her job. She chose to resign instead.

Before leaving the company in September 1997, Roe had a conversation with fellow employee Frank Murdocco. According to Roe, he told her he had heard Bassett say she was "going to get revenge" on everyone who cooperated in the investigation. When asked at his deposition if he had ever made such a statement, Murdocco said no. In her deposition, Bassett also denied making any such statement. She claimed she did not even know who participated in the investigation, let alone what they said about her.

Upon Roe's departure, Mary Zabel became Colarossi's interim supervisor. On various occasions during the fall of 1997, Zabel discussed Coty's record-keeping policies with Colarossi. She told Colarossi that pursuant to company policy, her weekly reports had to contain legible signatures from the supervisors of the stores she serviced, and she had to keep better track of her hours. Zabel also made it clear that these policies were "not open to flexibility."

During this period, Bassett interviewed several people to fill Roe's position on a permanent basis. She spoke with Colarossi about the position, but she ended up giving the job to Dawn Miranda-Nesbitt because she felt she was the most qualified candidate. That made Miranda-Nesbitt Colarossi's new supervisor.

It wasn't long before the two came to loggerheads. In February 1998, Miranda-Nesbitt reviewed Colarossi's weekly reports and became suspicious that Colarossi was not working as much as she claimed. She felt Colarossi's reports contained incomplete information and some of the signatures from her store supervisors appeared to be fraudulent. Miranda-Nesbitt promptly reported this to Bassett, who instructed her to audit Colarossi's stores. The audit indicated that Colarossi was not keeping an accurate account of her hours and that she had falsified some of the supervisors' signatures.

When Miranda-Nesbitt met with Colarossi to discuss this, she denied any wrongdoing. Miranda-Nesbitt then scheduled a follow-up meeting so they could go over her findings more thoroughly. Colarossi did not show up for the meeting because she thought it would be humiliating. In her deposition she admitted she did not pay much attention to the reports and she sometimes forged the supervisors' signatures for the sake of expediency. Although she knew this was a violation of company policy, she did not think it important because Roe and other supervisors encouraged her to do so, and other merchandisers did it too. As for her work habits, Colarossi stated she put in very long hours and took great pride in her job. She felt that as long as she was doing her job, she did not have to worry about her weekly reports.

She was wrong. When Miranda-Nesbitt informed Bassett of Colarossi's recordkeeping deficiencies, Bassett immediately took them up with senior vice president James McDougald. Although McDougald considered Colarossi to be an "excellent employee," he ordered her to be fired because she was not following the company's record-keeping policies.

Of the 10 other employees who participated in the investigation into Bassett's alleged sexual harassment, two have quit, one was terminated for falsifying her reports and the rest still work for the company. In the past, Coty has not always terminated those employees who have engaged in fraud. Some employees who falsified their reports were merely put on probation, a sanction that is expressly contemplated in the company handbook for this type of misconduct.

Following her dismissal, Colarossi sued Coty for wrongful termination in violation of public policy.¹ She alleged that Bassett had her fired for cooperating in the sexual harassment investigation and that her record-keeping deficiencies were merely a pretext for letting her go. Coty denied this and moved for summary judgment based on lack of proof. It also objected on hearsay grounds to Roe's allegation that Bassett threatened to get revenge on those who participated in the investigation. The court sustained the objection and found Colarossi's remaining evidence insufficient to justify her claim of retaliation. It stated, "The basic thing is this: Coty had good cause to terminate this employee. She lied ... on the report she was supposed to submit, then tried to cover it up. Balanced against that ... [there] just [is not] any evidence [of retaliation]. There is really no evidence ... of any weight that Bassett even knew that Colarossi had participated in that investigation." The court therefore granted summary judgment for Coty.

I

Colarossi contends the court misunderstood its role in assessing Coty's motion. Instead of determining whether there were any triable issues of fact, Colarossi maintains the court assumed the role of fact finder and decided the motion based on the relative strength of the parties' evidence. We disagree.

A party may move for summary judgment "if it is contended that the action has no merit or that there is no defense to the action or proceeding." (Code Civ. Proc., § 437c, subd. (a).) "[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, 107 Cal.Rptr.2d 841, 24 P.3d 493, fn. omitted.) If the moving party carries this burden, "the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact." (Ibid.) "There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof." (Ibid., fn.omitted.) In making this determination "the court may not weigh the plaintiffs evidence or inferences against the defendants' as though it were sitting as the trier of fact, [but] it must nevertheless determine what any evidence or inference could show or imply to a reasonable trier of fact." (Id. at p. 856, 107 Cal.Rptr.2d 841, 24 P.3d 493, fn. omitted.) The motion should be granted only if the movant "would prevail at trial without submission of any issue of material fact to a trier of fact for determination...." (Id. at p. 855, 107 Cal.Rptr.2d 841, 24 P.3d 493.)

Seizing on the court's use of the words "balanced" and "weight" in its ruling, Colarossi contends the court improperly weighed the evidence in reaching its decision. However, it does not seem the court actually weighed Colarossi's evidence against that put forth by Coty. Rather, it simply determined that Colarossi's evidence fell short of proving that Coty's proffered reason for firing her was pretextual. In so doing, the court properly fulfilled its duty to determine what Colarossi's evidence could prove to a reasonable trier of fact. It does not appear to us to have overstepped its boundaries, as it would have had it assayed to weigh the evidence or resolve factual conflicts.

II

Regardless of how the trial court reached its decision, it falls to us to examine the record de novo and independently determine whether that decision is correct. (Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 334, 100 Cal.Rptr.2d 352, 8 P.3d 1089.) And as part of that task, we must determine which information in the record to consider. Although the trial court excluded Roe's statement about Bassett's alleged desire to seek revenge on those that participated in the investigation, we agree with Colarossi that the trial court should have considered it in ruling on the...