Yanowitz v. L'Oreal Usa, Inc.

• Decision Date: 07 March 2003
• Docket Number: No. A095474.,A095474.
• Parties: Elysa J. YANOWITZ, Plaintiff and Appellant, v. L'OREAL USA, INC., Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

131 Cal.Rptr.2d 575

106 Cal.App.4th 1036

Elysa J. YANOWITZ, Plaintiff and Appellant, v. L'OREAL USA, INC., Defendant and Respondent.

No. A095474.

Court of Appeal, First District, Division 5.

March 7, 2003.

Certified for Partial Publication.^*

Rehearing Denied April 7, 2003.

Review Granted June 11, 2003.

Herbert W. Yanowitz, San Francisco, for plaintiff and appellant.

Morgenstein & Jubelirer, William J. Carroll, David H. Bromfield, San Francisco, for defendant and respondent.

GEMELLO, J.

Plaintiff Elysa J. Yanowitz was a regional sales manager for defendant L'Oreal USA, Inc. (L'Oreal), a cosmetics and fragrance company. A male L'Oreal executive ordered Yanowitz to fire a female employee in her region because the executive found the employee insufficiently attractive. Yanowitz was asked to get him someone "hot" instead. She asked for a better reason. The executive and another executive, who was Yanowitz's immediate supervisor, subjected her to heightened scrutiny and increasingly hostile evaluations over the ensuing months. Within four months, Yanowitz went on stress leave, and her position was eventually filled.

Yanowitz brought suit under the Fair Employment and Housing Act, charging L'Oreal with unlawful retaliation, and presented evidence that, if believed, would demonstrate the conduct described. The trial court granted summary judgment, finding that Yanowitz had not engaged in any protected activity. We reverse.

A male executive's order to fire a female employee because she fails to meet the executive's standards for sexual attractiveness is an act of sex discrimination when no similar standards are applied to men. A lower-level manager's refusal to carry out that order is protected activity, and an employer may not retaliate against her for that refusal. We remand for further proceedings on Yanowitz's retaliation claim.

FACTUAL AND PROCEDURAL BACKGROUND

This is an appeal from a grant of summary judgment. Accordingly, we must accept as true the facts shown by plaintiffs evidence, granting her the benefit of all reasonable inferences. (Hersant v. Department of Social Services (1997) 57 Cal. App.4th 997, 1001, 67 Cal.Rptr.2d 483 (Hersant).)

Elysa Yanowitz joined L/C-real's predecessor in 1981.¹ She was promoted from sales representative to regional sales manager for Northern California and the Pacific Northwest in 1986. At one time or another, Yanowitz's region included stores in California, Oregon, Washington, Idaho, Alaska, Hawaii, Arizona, Utah, Colorado, Texas, and Minnesota. Yanowitz was responsible for managing L'Oreal's sales force and dealing with accounts, i.e., department and specialty stores that sold L'Oreal's fragrances.

During her first 10 years as a regional sales manager, Yanowitz's performance was consistently reviewed as "Above Expectation" and in some instances fell just short of "Outstanding," the highest possible rating. In early 1997, Yanowitz was named L'Oreal's Regional Sales Manager of the Year for her performance during 1996. She received a Cartier watch and a congratulatory note complimenting her on her ability to inspire team spirit and her demonstration of leadership, loyalty, and motivation.

Yanowitz worked in the company's European Designer Fragrance Division. In the fall of 1997, that division and the Ralph Lauren Fragrance Division merged. While some regional sales managers were laid off, L'Oreal retained Yanowitz and increased her responsibilities. Yanowitz assumed responsibility for marketing Ralph Lauren fragrances in her region, as well as managing L'Oreal's Ralph Lauren sales force.

Shortly after the restructure, John (Jack) Wiswall, general manager for the new Designer Fragrance Division, and Yanowitz toured the Ralph Lauren installation at a Macy's store in San Jose. After the tour, Wiswall told Yanowitz there needed to be a change because the female sales associate was "not good looking enough." Wiswall instructed Yanowitz to have the sales associate fired, and directed her to "[g]et me somebody hot," or words to that effect.

On a return trip to the store, Wiswall discovered that the sales associate had not been dismissed. He reiterated to Yanowitz that he wanted the associate fired and complained that she had not done so. He passed "a young attractive blonde girl, very sexy," on his way out, turned to Yanowitz, and told her, "God damn it, get me one that looks like that." The sales associate, in contrast, was dark-skinned. Yanowitz asked Wiswall for an adequate justification before she would fire the associate.

Yanowitz never carried out Wiswall's order. Wiswall asked her whether the associate had been dismissed on several subsequent occasions. Yanowitz again asked Wiswall to provide adequate justification for dismissing her. Yanowitz never complained to the Human Resources Department (Human Resources), nor did she tell Wiswall that his order was discriminatory; he was her boss, and she did not want to inflame him.

In March 1998, Yanowitz learned that the sales associate was among the top sellers of men's fragrances in the Macy's West chain. Also in March 1998, a member of Yanowitz's sales force learned that Wiswall had issues with Yanowitz and now wanted to get rid of her.

Richard (Dick) Roderick, the vice president in charge of designer fragrances, was Yanowitz's immediate supervisor and reported directly to Wiswall. Roderick and Wiswall were in New York, while Yanowitz was based in San Francisco. In April 1998, Roderick began soliciting negative information about Yanowitz from her subordinates. Roderick called Christine De-Gracia, who reported to Yanowitz, and asked her about any "frustrations" she had with Yanowitz. When DeGracia said she had had some, Roderick asked her to hold her thoughts so that the matter could be discussed with Human Resources. Roderick and the division head for Human Resources, Jane Sears, then called DeGracia back to discuss those issues. Roderick asked DeGracia if any others were having problems with Yanowitz; DeGracia did not provide any names. Two weeks later, Roderick called DeGracia again and told her it was urgent that she help him get people to come forward with their problems about Yanowitz. In early June 1998, Roderick again asked DeGracia to notify him of negative incidents involving Yanowitz.

On May 13, 1998, Roderick summoned Yanowitz to New York. He opened the meeting by asking whether she thought she had been brought in to be fired, then criticized Yanowitz for her "dictatorial" management style. He closed the meeting by saying, "It would be a shame to end an eighteen-year career this way." During May and June 1998, Roderick and Wiswall obtained Yanowitz's travel and expense reports and audited them.

In June 1998, Yanowitz met with Wiswall, Roderick, and various account executives and regional sales managers responsible for the Macy's account. Wiswall screamed at Yanowitz, told her he was "sick and tired of all the fuckups" on the Macy's account, and said that Yanowitz could not get it right.

On June 22, 1998, Yanowitz wrote Roderick, advising him that her Macy's West team was disturbed about certain issues. Wiswall, who had been copied, wrote a note to Roderick on Yanowitz's memo: "Dick — She is writing everything! Are you!!!???" One week after Wiswall's note, Roderick prepared three memos to Human Resources documenting the meeting with Yanowitz on May 13, 1998, a conversation with DeGracia on June 4, 1998, and a visit to Yanowitz's market in early June 1998. These memos were critical of Yanowitz; the memo concerning the May 13 meeting criticized Yanowitz for being too assertive.

On July 16, 1998, Roderick prepared a more elaborate memorandum and delivered it to Yanowitz. The memorandum criticized Yanowitz's handling of a Polo Sport promotion, a Picasso promotion, coordination of advertising with others, handling of the Sacramento market, and the length of a March 1998 business trip to Hawaii. Roderick closed, "I have yet to see evidence that you took [the May 13] conversation seriously and made the necessary style modifications. [¶] Elysa, I am quite surprised that a person with so many years of experience and so many years with Cosmair could become so ineffective so quickly. [¶] Our business is changing daily and we all must learn to adapt to those changes or we will fail as individuals and as a company. Your changes must start immediately. [¶] I expect a reply to this memo within one week of receipt."

Yanowitz viewed the memorandum as an expression of intent to develop pretextual grounds and then terminate her. She suggested the parties meet to discuss a severance package, but also indicated that she wanted to prepare her written response to the July 16,1998, memorandum first.

Carol Giustino, the Human Resources director, set up a meeting for July 22 and rejected Yanowitz's request that the meeting be postponed. Giustino also denied Yanowitz's request to have her attorney-husband present. During the meeting, Roderick and Giustino questioned Yanowitz about the accusations in the July 16 memorandum without reading her written response. Yanowitz broke down in tears. During the meeting, Roderick imposed a new travel schedule on Yanowitz, a schedule that regulated precisely how often she should visit each market in her territory. Two days after the meeting, Yanowitz went out on disability leave due to stress. She did not return, and L'Oreal replaced her in November 1998.

Yanowitz filed a discrimination charge with the Department of Fair Employment and Housing (DFEH) on June 25, 1999. She alleged that L'Oreal had discriminated against her on the basis of sex, age (Yanowitz was 53), and religion (Yanowitz is Jewish). She also alleged that L'Oreal had retaliated against her for refusing to fire the female employee Wiswall considered unattractive.

After receiving a right-to-sue letter, Yanowitz sued L'Oreal. The first amended complaint, filed on September 13, 1999, included claims for age and...