Greene v. Countrywide Home Loans, Inc., 2d Civil No. B192329 (Cal. App. 10/29/2007)
| Decision Date | 29 October 2007 |
| Docket Number | 2d Civil No. B192329 |
| Court | California Court of Appeals Court of Appeals |
| Parties | MERCEDES GREENE, Plaintiff and Appellant, v. COUNTRYWIDE HOME LOANS, INC., et al., Defendants and Respondents. |
Appeal from the Superior Court of Ventura County, No. 042760, Thomas J. Hutchins, Judge.
William D. Evans for Plaintiff and Appellant.
Sefarth Shaw, LLP, Karen A. Rooney and Catherine A. Evans for Defendants and Respondents.
Plaintiff, Mercedes Greene, appeals a summary judgment in favor of defendants, Frank Duda, Anne Babb and Countrywide Home Loans, Inc. (Countrywide), her former employer, in her wrongful termination, sexual harassment, retaliatory discharge and disability discrimination action. We conclude, among other things, that the trial court properly granted summary judgment. Countrywide had a legitimate nondiscriminatory reason to terminate Greene after she made death threats against her coworkers. Greene did not meet her burden to show that her employer's reasons for firing her were false or a pretext for sexual or disability discrimination. Countrywide is not required under the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12940, subd. (a)(1)) to accommodate Greene's mental disabilities and maintain her at the jobsite after she made death threats. Greene did not show that Countrywide subjected her to a hostile work environment or that it retaliated against her for engaging in protected activities. She has not shown that there are triable issues of fact on her causes of action against Countrywide for negligent and intentional infliction of emotional distress. We affirm.
Duda was a vice-president in Countrywide's tax department in Simi Valley, California. Greene worked in that office in 2001 and 2002.
In March of 2002 Babb, Countrywide's employee relations representative, notified Duda that Greene had accused him of sexually harassing her by "staring at her." Duda denied that he had ever "purposely" stared at her.
In May of 2002 Countrywide transferred Greene to a new position in its bankruptcy department. That office was located in a separate building and Duda did not work at that office.
In October of 2002 Greene filed a discrimination complaint with the California Department of Fair Employment and Housing (DFEH) alleging, among other things, that 1) Duda subjected her to "visual sexual harassment" from August 1, 2001, to March 19, 2002; 2) Babb "blamed" Greene for "harassing" Duda; and 3) she was "excessively monitored" at Countrywide's bankruptcy department and "denied access to computer programs" available to others. DFEH issued Greene a right-to-sue letter on November 5, 2002.
On May 21, 2003, Duda was driving home after work. He noticed that Greene was following him. She "pulled up" next to his car and said, "Can I talk to you?" Duda said, "No." Greene would not take "No" for an answer and again "motioned" for Duda to "pull over." Fearing that Greene would follow him home, he pulled over. He talked with her, told her, "I need to go," and he left. He reported the incident to Countrywide.
On June 30, 2004, Greene filed a DFEH complaint claiming that Duda and Babb harassed her. She said they retaliated against her because of "discrimination." DFEH issued a right-to-sue letter on July 7, 2004.
Duda moved to Texas in July of 2004. He worked for Countrywide there. In August, he received a package at his home in Texas. It contained three emails and a photograph of Greene and another woman. Duda reported receiving this package to Countrywide and made a complaint against Greene because "two of the emails contained death threats." In the first one, Greene said, "I need to be aggressive and try to destroy the other person involved in this incident." In the second, she stated, "I am so ang[ry] inside and feel like killing a few people here, I can't let that anger take control of who I am, so for the time being I am not going to kill anyone (it's a joke!)"
Greene had flown from California to Texas to mail the package containing the death threats. She did this so that Duda would see that the package had "a local postmark."
Nancy Campbell, Countrywide's president of human resources, suspended Greene pending an investigation of Duda's complaint. Countrywide accessed Greene's "Lotus Notes" and discovered that the emails sent to Duda were in Greene's "Lotus Notes file."
On September 9, 2004, Green told Campbell and Lisa Schroeder, Countrywide's employee relations representative, that she composed the emails which Duda had received. But she said she did not mail the package to Duda. Greene later admitted she had sent the package to Duda. She also said she sent one of the emails containing a death threat to eight Countrywide employees.
Countrywide discovered that Greene had composed additional threatening emails. In one of them she said, "I think that if I leave, I'll feel like I'm being force[d] to leave and that angers me so much, that [I] am afraid [I] will come with a gun and kill them all." Countrywide concluded that Greene violated its workplace violence policy and a rule prohibiting employees from using its email system to send "threatening messages." It terminated Greene.
On January 10, 2005, Greene filed a DFEH complaint alleging that she was fired in retaliation for her complaints about sexual harassment and because of her "mental disability." DFEH issued a right to sue letter on January 14, 2005.
On May 4, 2005, Greene filed an action against Duda, Babb, and Countrywide alleging causes of action for wrongful termination, sexual harassment, disability discrimination, retaliatory discharge and negligent and intentional infliction of emotional distress. Greene claimed that in 2002 there were a series of incidents showing a pattern of harassment against her by Duda and Countrywide. These included, among other things, 1) that someone removed her husband's picture from her desk; 2) a window in her car had been cracked; 3) someone made calls to her home telephone and then hung up; 4) her job in the new department was limited to routine clerical duties; 5) she had limited access to the computers; and 6) her requests for a Countrywide investigation of Duda were ignored.
She alleged that in 2003 the harassment continued because 1) someone called her at work several times, but hung up the telephone before saying anything; 2) someone anonymously delivered a bouquet of flowers to her desk; 3) Duda and another company vice-president walked by her work station in the bankruptcy department; 4) a friend of Duda's who worked in the tax department also walked by that cubicle; 5) Greene saw Duda driving near her home; and 6) she went to a Blockbuster store and Greene was standing behind her. She claimed that in 2004 Joyce Sciumbato, a Countrywide supervisor, told Greene that her work performance was unacceptable and that she could be fired for not complying with company rules.
Countrywide moved for summary judgment. It attached portions of Greene's deposition where she said she had no evidence to show that any Countrywide employees who had made death threats were allowed to keep their jobs.
In her declaration, Campbell said she recommended firing Greene "solely" because of her violation of Countrywide's policy on workplace violence and her improper use of company resources. She said, "Had any employee other than [Greene] sent the same e-mails, I would have made the same recommendation." Prior to terminating Greene, Campbell never instructed anyone to harass Greene, to walk by her cubicle, to alter her working conditions because of her disability or gender or to retaliate because of any complaint Greene had made.
In her declaration, Kelly May, a Countrywide vice-president in the bankruptcy department, said she accepted the recommendation to fire Greene because she had violated the policy against workplace violence. She did not know or believe that Greene had a disability. She did not consider Greene's gender or any complaint Greene had made against Countrywide in deciding to terminate her employment. Nor did she consider those factors in making any other decision related to Greene's employment.
In her declaration, Babb said that she had investigated Greene's complaint about Duda's conduct, but "was unable to substantiate" Greene's allegations. She assisted Greene in transferring to a different department. Greene told Babb that Duda's staring ended in March of 2002. Babb did not "participate . . . in the decision to terminate" Greene. She did not instruct anyone to harass Greene or to change her working conditions because of Greene's disability or because of any complaint she made.
In his declaration, Duda said he never sent Greene flowers, did not make "hang-up" calls to her home or work and did not remove pictures from her desk. He did not harass her. He did not discriminate on the basis of her gender or retaliate because of any complaint she made against him. He said, "I never purposely walked by [Greene's] cubicle or stared at her." He was not involved in the decision to terminate her. He said,
In her declaration in opposition to summary judgment, Greene said, "Although I had no direct evidence Duda was making the . . . telephone calls or sending me flowers, I felt that he was responsible because I had no indication that others were doing this . . . ." She said Duda began staring at her in May of 2001 when she went to his office to obtain a signature. She said, "[h]e stared at me for several seconds, making me feel uncomfortable." In her opposition to summary judgment Greene conceded, "Duda did nothing Greene could observe except to stare . . . ." Greene claimed that one of the hostile work environment acts involved Duda sending her...
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