Cleveland v. Allstate Ins. Co.

Cleveland v. Allstate Ins. Co.

Filed 9/15/08 Cleveland v. Allstate Ins. Co. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

JANICE S. CLEVELAND, Plaintiff and Appellant, v. ALLSTATE INSURANCE COMPANY, et al., Defendants and Respondents.

B198985 (Los Angeles County Super. Ct. No. BC 343063)

APPEAL from a judgment of the Superior Court of Los Angeles County. Aurelio Munoz, Judge. Affirmed.

Gary S. Bennett for Plaintiff and Appellant.

Akin Gump Strauss Hauer & Feld, Phillip J. Eskenazi, Michael C. Small and Lee A. Cirsch for Defendants and Respondents.

Plaintiff Janice S. Cleveland appeals from a judgment in favor of defendants Allstate Insurance Company (Allstate), Law Offices of Eric W. Bladh, Eric W. Bladh, William C. Cole and Associates, and William C. Cole. Plaintiff asserts her case was one for employment discrimination, harassment and retaliation involving age, gender and religious bias leading up to her being improperly selected for a reduction in workforce. Plaintiff contends the court made a number of erroneous rulings in granting summary judgment in favor of defendants. We affirm.

FACTUAL AND PROCEDURAL SYNOPSIS

I. Factual Background

Allstate employs staff counsel across the country to litigate claims brought against its insureds. Those attorneys work with Allstates claim offices to defend cases on behalf of the insureds. In 2005, Allstate had 12 staff counsel offices in California.

In 1995, Cleveland became an Allstate staff counsel in San Bernardino. Initially, Cleveland performed her functions at the office of William C. Cole and Associates. Clevelands supervisor was William Freeman. Cleveland alleged that in 2000, after an internal investigation of a complaint about gender-based favoritism between Freeman and Vickie Cartony, one of the attorneys in the office, Freeman was demoted.

In 2000, the office became known as the Law Offices of Eric W. Bladh, and Bladh became Clevelands supervisor. Throughout Clevelands tenure as Allstate staff counsel, Cole was the manager of the Allstate staff counsel region in which Cleveland worked.

In 2002, Allstate began experiencing a significant decline in the number of claims and lawsuits filed against its insureds in California. In 2004, new California cases declined by 39 percent. As a result of the drop in the caseload, the volume of business no longer supported the number of staff counsel employed by Allstate, and Allstate determined it had to reduce that number.

Allstate initially tried to avoid having to lay off staff counsel involuntarily. To that end, in September 2004, Allstate presented all of its staff counsel nationwide with a voluntary termination offer (VTO). The number of attorneys who ultimately accepted the VTO was not large enough to enable Allstate to accomplish the business objectives of the workforce reduction. In late 2004, Allstate determined it had no choice but to further reduce its workforce and lay off some staff attorneys involuntarily in each of its California offices. At that time, Allstate had 78 attorneys in California.

In early 2005, Allstate conducted a workforce reduction that resulted in involuntary terminations of California staff counsel. To begin the process, Allstate first determined the number of attorneys needed to handle the projected caseload of each California office. That determination was made by David Silverman, the director of Allstates staff counsel for the western states division.

Next, to determine which attorneys would be retained and which attorneys would be laid off, Allstate ranked each attorney within each office by his or her performance rating in the companys current annual performance evaluation (PE) of that attorney. If more than one attorney received the same performance rating, the attorney with the most seniority would receive the higher rating. The use of performance ratings and seniority was consistent with Allstates internal policy. Allstate believed following its company policy and comparing overall performance and seniority rankings would be the fairest and most effective way to reduce the workforce.

The reduction of California staff counsel was administered on an office-by-office basis. The list of attorney rankings for each office was compiled for purposes of the workforce reduction by Toni Yoast, Allstates human resources manager for the region that included California.

Overall, the terminated attorneys in California ranged in age from 34 to 62, and the retained attorneys ranged in age from 32 to 67. Fourteen of the 50 attorneys who were retained were over age 55 and five were younger than age 40. Of the attorneys who were terminated, half were male and half were female. Allstate did not maintain information as to the religions of its attorneys and was thus unaware of the religious affiliation of its attorneys.

Seven attorneys, including Cleveland, worked at the San Bernardino office prior to the workforce reduction. Silverman determined that the anticipated caseload justified retention of only four attorneys in that office. Consistent with company policy, Allstate considered the attorneys most current annual performance evaluations, which were for 2004. The 2004 attorney evaluations had five rating categories. From lowest to highest, the categories were: unacceptable, fair, successful, outstanding, and exceptional. The attorneys were rated in a number of different areas and then given a final overall rating on their performance.

The San Bernardino staff counsel received the following overall ratings on their final 2004 performance evaluations: none of the attorneys was rated exceptional; three attorneys were rated outstanding, three attorneys, including Cleveland (who had received the middle rating in 2001, 2002 and 2003), were rated successful; one attorney was rated fair; and no attorney was rated unacceptable.

The three San Bernardino attorneys rated outstanding in 2004 were retained. Of the three attorneys rated successful, the one with the most seniority was retained. Cleveland had the least seniority of the attorneys rated successful.

Three of the four San Bernardino attorneys who were retained were women. One of the retained attorneys was under 40; the others were 44, 51 and 58. Appellant was 56 at the time of the lay-offs.

II. Procedural History

Cleveland filed suit against defendants in November 2005. The complaint, which contained 14 causes of action, alleged that in terminating Cleveland, Allstate breached a contract and the covenant of good faith and fair dealing not to terminate her except for good cause. The complaint alleged Clevelands selection for termination was based on four proscribed considerations - age, gender, religion and marital status - and thus, constituted discrimination and wrongful termination under the California Fair Employment and Housing Act (FEHA) (Gov. Code, 12900, et seq.). Cleveland further alleged Bladh and Cole had subjected her to harassment based on those same four proscribed considerations. Cleveland also asserted claims against all defendants for wrongful termination in violation of public policy, retaliation, and intentional and negligent infliction of emotional distress.[1]

After a year of discovery, defendants moved for summary judgment, and the court granted their motions.

Appellant filed a timely notice of appeal from the subsequent judgment.

DISCUSSION

I. Introduction

Appellant contends the court made a number of erroneous rulings in granting summary judgment: respondents claim of a legitimate non-discriminatory reason for her lay-off failed to overcome the presumption of discrimination; she presented substantial evidence supporting her age discrimination/harassment claims and substantial evidence of wide-spread gender-favoritism; in evaluating her religious discrimination/harassment claims, the court improperly viewed religious-related comments more favorably for respondents; and the court erred in ruling her only evidence of retaliation was an anonymous letter and in granting summary judgment on her IIED claim.

We determine de novo whether a triable issue of material fact exists and whether the moving party was entitled to summary judgment as a matter of law. (Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 877.)

At the outset, we remind appellant that not all kinds of discrimination, favoritism and/or offensive comments/conduct constitute legally actionable behavior under FEHA, the act cited as the basis for all of appellants discrimination, harassment and retaliation causes of action. Many of the incidents cited by appellant might be indicative of a poor work environment or poor supervision, but are not actionable under FEHA. The resolution of those grievances belongs to the employer and not to the courts.

II. Discrimination/Retaliation

California has adopted the three-stage, burden-shifting test established by the United States Supreme Court in McDonell Douglas Corp. v. Green (1973) 411 U.S. 792. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354.) Under the McDonell test: The plaintiff [first had] the burden of showing a prima facie case of discrimination. If the plaintiff succeeded, the defendant [then had] the burden of showing there was a nondiscriminatory reason for the way the defendant treated the plaintiff. If the defendant failed to carry that burden, the plaintiff won. If the defendant succeeded, the burden [then shifted] back to the plaintiff to show that the defendants reason was really only a pretext for discrimination.[2] (Green v. Rancho Santa Margarita Mortgage Co. (1994) 28 Cal.App.4th 686, 694.) The ultimate burden of persuasion on the issue of actual discrimination remains with the plaintiff. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at pp. 356.)

Respondents contend appellant failed to establish a prima facie case of age, gender or religious discrimination and they articulated a legitimate reason for her layoff (i.e., the reduction in force). Appellant contends she produced substantial evidence of age, gender and religious discrimination and that respondents proffered nondiscriminatory reason did not overcome the presumption of discrimination.

A. Prima Facie Case

The specific elements of a prima facie case may vary depending on the particular facts. Generally, the plaintiff must provide evidence that (1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive. (Citations omitted.) (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 355.) Only the latter factor is at issue in the case at bar.

We will assume arguendo that appellant adduced evidence supporting a prima facie case of discrimination and retaliation. The only adverse employment action of which appellant complains was her lay-off.

B. Nondiscriminatory Reason

Appellant was laid off as part of a reduction in force. An employer satisfies its burden of providing a nondiscriminatory reason for its decision if it shows the procedure by which the plaintiff was terminated was validly and fairly devised and administered to serve a legitimate business purpose. (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1733.)

As described in the synopsis, respondents adduced evidence of the need for a lay-off due to a decline in work load. Allstate indicated that to determine which attorneys would be retained and which attorneys would be laid off, it ranked each attorney within each office by his or her performance rating in the companys current annual performance evaluation of that attorney. If more than one attorney received the same overall performance rating, the attorney with the most seniority received the higher rating. In the San Bernardino office, Allstate retained the three attorneys who were rated outstanding and, of the three attorneys who were rated successful, Allstate retained the one with the most seniority. Appellant had the least seniority of the three attorneys who were rated successful.

Appellant does not question the need for lay-offs, but the criteria used to select the employees laid off; she claims the process of selection was arbitrary and capricious, i.e., Allstate did not assert a legitimate, nondiscriminatory reason for use of the 2004 PEs rather than the 2003 PEs. (See Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 358 [An employers freedom to consolidate or reduce its work force, and to eliminate positions in the process, does not mean it may use the occasion as a convenient opportunity to get rid of its [older] workers. Invocation of a right to downsize does not resolve whether the employer had a discriminatory motive for cutting back its work force, or engaged in intentional discrimination when deciding which individual workers to retain and release. Where these are issues, the employers explanation must address them. (Citations omitted.)].)

Thus, we turn to the question of whether there was a triable issue of material fact that the proffered reason for the lay-off was a pretext for discrimination/retaliation.

C. Pretext

A defendant employers motion for summary judgment slightly modifies the order of these [burden shifting] showings. If, as here, the motion for summary judgment relies in whole or in part on a showing of nondiscriminatory reasons for the discharge, the employer satisfies its burden as moving party if it presents evidence of such nondiscriminatory reasons that would permit a trier of fact to find, more likely than not, that they were the basis for the termination. To defeat the motion, the employee then must adduce or point to evidence raising a triable issue, that would permit a trier of fact to find by a preponderance that intentional discrimination occurred. In determining whether these burdens were met, we must view the evidence in the light most favorable to plaintiff, as the nonmoving party, liberally construing her evidence while strictly scrutinizing defendants. (Citations omitted.) (Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th 1088, 1097-1098.) The reduction in force satisfied the burden of showing a nondiscriminatory reason for appellants termination.

As several federal courts have stated: The [employee] cannot simply show that the employers decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent. Rather, the [employee] must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employers proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence, and hence infer that the employer did not act for the [the asserted] non-discriminatory reasons. (Citations omitted; original italics.) (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1005.)

Appellant cites the following as evidence of pretext:

1. Allstate did not follow its own policies as to which PEs would be used to select employees for lay-off. The policy stated the most current and completed PE was to be used. First, Allstate stated the 2003 PEs, which had been completed, would be used, then Allstate announced the 2004 PEs, which had not been completed and had to be expedited, would be used.

2. Bladh, who knew the 2004 PEs would be used as the selection criteria at the time he was doing the evaluations, used his own secret system to assign the categories a number which he then used to arrive at a final overall rating for each employee. Bladhs system was not approved by Cole or used in any other office.

3. Although Bladh claimed the process was objective, he testified that Cartony, one of the retained attorneys, had previously been placed on requires improvement, which was a type of disciplinary process for employees with performance problems. Bladh testified Cartony needed constant close supervision. In Cartonys mid-2004 PE, she was rated below plaintiff. Three months later, Cartony received a higher rating than plaintiff. Bladh admitted he could not recall why he rated Cartony successful when she was really only a fair.[3]

4. Bladh told appellant he had fixed the 2004 evaluations to get rid of people who did not do their job, specifically mentioning Cartony.

5. In mid-2004, Bladh told appellant that her mid-2004 evaluation was one of the best in the office, and if that evaluation was used for the lay-off, she would survive the lay-off. Bladh repeated that reassurance several times after August 2004.

Appellant suggests an employers departure from its normal practice or failure to follow its own policies might be evidence of an improper purpose and cites Arlington Heights v. Metropolitan Housing Corp. (1977) 429 U.S. 252, 267 (giving as an example of not following normal procedure a sudden change in zoning when a town learns of plans to erect integrated housing) and Stewart v. Rutgers, The State University (3d Cir. 1997) 120 F.3d 426, 433 (the university failed to follow its own policies because it did not follow the grievance committees finding that the denial of tenure to plaintiff was arbitrary and capricious).

In the instant case, appellant claims Allstates change in what years evaluation to use was a failure to follow its policy to use the current completed PE. The policy is not part of the record so this court cannot determine if it states the current years evaluation or the current completed evaluation. The evidence cited by appellant simply shows Allstate decided to use the 2004 PEs rather than the 2003 PEs. As the lay-offs were in 2005, the 2004 PEs were the current PEs. Even if the 2004 PEs had to be expedited, there is nothing nefarious in that change. (See Guz v. Bechtel National, Inc., supra, 24 Cal.4th at pp. 377-378 [A mere failure to follow formal internal policies does not support a discrimination claim.].) Appellant implies Allstate should have used the 2003 PEs. Appellant received the middle rating in 2003, three attorneys received higher ratings, and two attorneys who also received the middle rating had more seniority than appellant. Thus, had Allstate used the 2003 PEs, appellant would still have been laid off.

Appellants claim Bladh manipulated the 2004 PEs is based on an assertion that Cartony was rated needs improvement. Bladhs testimony about Cartony needing improvement was about 2001, a year he described as an off-year for her. Appellant complains that Cartony then received a higher rating than she did on the final 2004 PE. Bladh raised Cartony from a fair rating at mid-2004 to a successful for her final 2004 rating. However, even though Cartony and appellant both were rated successful on the final 2004 PEs, Cartony was rated above appellant because she had more seniority not because she received a better PE. Even if Cartony had received a lower overall rating than appellant, appellant would still have been laid off as there were four attorneys ahead of her on the list (the three attorneys rated outstanding and the other attorney rated successful who had more seniority than appellant).

Bladhs statements appellant would survive the pending lay-off because of her PE are not relevant; he was not responsible for deciding who would be laid off or the extent of the lay-offs. In addition, in discussing the evidence for her religion-based claims, appellant stated Bladh also told her that even though he thought that, if Allstate used the rumored merit method for the lay-off, she would lose her job. Although Bladh used his own system to arrive at the final overall rating for each employee, appellant had received the same middle rating for the three preceding years.

Citing Ash v. Tyson Foods, Inc. (2006) 126 S.Ct. 1195, appellant notes she presented evidence she was more qualified than attorneys Benson and Cartony who were retained. However, Ash was a case based on a claim of discrimination in not promoting the plaintiffs. Although the court declined to precisely define what standard should govern pretext claims based on superior qualifications, it looked to decisions in which the plaintiffs qualifications were clearly superior to or significantly better than those of the selected job applicant. (Id., at pp. 1197-1198.) The evidence cited to support appellants alleged superior qualifications was Bladhs deposition testimony that appellant had a nursing degree and a teaching background, which he described as helpful, and handled difficult cases. Even though Bladh stated others did not have those qualifications, that does not establish appellant had superior qualifications to Benson and Carton, whose qualifications were not discussed. (See also Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 816 [[A]n employees subjective personal judgments of his or her competence alone do not raise a genuine issue of material fact.].)

Thus, no inference of a pretext for discrimination/retaliation was created by use of the 2004 PEs, Bladhs statements and/or actions or appellants alleged superior qualifications.

III. Harassment

The type of evidence needed to support a claim for harassment was discussed in Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 130-131: In rejecting a FEHA claim that alleged acts of sexual harassment directed toward other women had created a hostile work environment for the plaintiff, the Court of Appeal in [Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590] held that the harassment complained of must be sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment . . . . The plaintiff must prove that the defendants conduct would have interfered with a reasonable employees work performance and would have seriously affected the psychological well-being of a reasonable employee and that she was actually offended. [H]arassment cannot be occasional, isolated, sporadic, or trivial[;] rather the plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature. (Citations omitted.) Aguilar involved harassment in the use of racial epithets in the workplace.

The Supreme Court has described a hostile work environment in the context of sexual harassment as a workplace permeated with discriminatory intimidation, ridicule and insult, that is sufficiently severe or pervasive to alter the conditions of the victims employment and create an abusive working environment, . . . Sexual harassment creates a hostile, offensive, oppressive, or intimidating work environment and deprives its victim of her statutory right to work in a place free of discrimination, when the sexually harassing conduct sufficiently offends, humiliates, distresses or intrudes upon its victim, so as to disrupt her emotional tranquility in the workplace, affect her ability to perform her job as usual, or otherwise interferes with and undermines her personal sense of well-being. [] [W]hether an environment is hostile or abusive can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employees work performance. (Citations omitted.) (Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, 517.)

Appellant combines her discussions of discrimination and harassment even though they are two different kinds of claims. In terms of age harassment, appellant notes there were age-related comments by Cole and employees complained those comments were offensive. When it was clear there was going to be a lay-off, Cole told employees in the San Bernardino office that if they were laid off, they could apply for positions in the claims department, but they would have to pass a test, but old people had difficulty with the test; he said Kick the old people off the jury,[4]and told another employee, We dont want a bunch of old people hanging around.

In terms of religious harassment, appellant refers to a 1998 incident where Cole scheduled a company seminar on a Jewish holiday and refused to change the date until employees continued to complain. In June 2004, when appellant informed Bladh she was going to be vacationing in France, he said he could not understand why she would go there as the French were anti-Semitic.[5] In July 2004, on the eve of her vacation, appellant had a conversation with Bladh about the workload. Bladh said since the lay-off announcement, he was keeping every case he could to keep the numbers up. Appellant protested that was unethical and Bladh became angry. Appellant thought Bladhs final comment, I hope this does not ruin your vacation, was retaliatory.[6] Another Jewish attorney in the San Bernardino office complained to Bladh that Bladh had been anti-Semitic.[7] In September 2004, another Jewish attorney in the San Bernardino office took off a few days for the Jewish holidays; when she returned, Bladh asked her if she had repented. In April 2005, a company-sponsored party was planned on the Jewish holiday of Passover. When Bladh was told it was Passover, he refused to change the date.[8]

For gender harassment, appellant refers to complaints in 2000 of gender favoritism between Freeman and Cartony. Appellant claims she complained that Bladh gave Kim Benson higher raises, easier cases, ate lunch with her and discussed personal matters, and asked her to take depositions of the victims when his brother-in-law was accused of sexual molestation.[9] Appellant alleged she complained to Bladh he was gender-favoring Benson, and when Bladh told Benson about appellants complaints, Benson created a hostile work environment by slamming her office door when appellant walked by, ignoring appellant in the office or glaring at appellant, and, at times, making faces at appellant during office meetings.

Even giving appellant credit for her evidence not supported by citations to the record, all appellants causes of action for harassment are based on isolated instances (some from 1998 or 2000) and comments. Appellant argues a single comment may establish a hostile work environment. (Dee v. Vintage Petroleum, Inc. (2003) 106 Cal.App.4th 30, 36.) In Dee, the court determined that a supervisors comment it is your Filipino understanding versus mine was an ethnic slur which was abusive and in combination with plaintiffs other evidence, created a triable issue of fact on the issue of a hostile work environment. (Id., at pp. 36-37.) The other evidence showed the supervisor called the plaintiff a bitch, constantly used the word asshole, berated and harassed plaintiff and ordered her to lie and blamed her for tasks he ordered her to perform. (Id., at p. 37.) No such evidence exists in the case at bar. None of the comments were epithets or slurs. There was no evidence of severe and pervasive age, gender or religious harassment nor any evidence of interference with appellants work performance.

In addition, appellants claim of gender harassment was one of gender favoritism of a female co-worker creating a hostile work environment. Such a claim may be actionable under FEHA where the favoritism is severe or pervasive enough to alter working conditions. (See Miller v. Department of Corrections (2005) 36 Cal.4th 446, 466-468 [summary judgment was improper because there was evidence advancement for female employees at a prison was based on sexual favors and the warden regarded female employees as sexual playthings.]) However, there was no evidence selection for termination was based on sexual favors in the instant case, only that Bladh preferred Benson to appellant. Moreover, appellant alleged Benson created a hostile work environment, not Cole or Bladh. A nonharassing supervisor, who fails to take action to prevent sexual harassment, is not personally liable for sexual harassment under FEHA. (Fiol v. Doellstedt (1996) 50 Cal.App.4th 1318, 1322.)

IV. IIED

Emotional distress caused by misconduct in employment relations involving, for example, promotions, demotions, criticism of work practices, negotiations as to grievances, is a normal part of the employment environment. A cause of action for such a claim is barred by the exclusive remedy provisions of the workers compensation law. The Legislature, however, did not intend that an employer be allowed to raise the exclusivity rule for the purpose of deflecting a claim of discriminatory practices. [] Thus, a claim for emotional and psychological damage, arising out of employment, is not barred where the distress is engendered by an employers illegal discriminatory practices. (Citations omitted.) (Accardi v. Superior Court (1993) 17 Cal.App.4th 341, 352.) The alleged outrageous conduct cited by appellant involves actions which are a normal part of the employment environment and her reactions to those actions.

The court found appellants IIED claim failed as she adduced no evidence of discrimination, harassment or outrageous conduct. We agree.

Accordingly, as appellant raised no triable issues on any of her causes of action, summary judgment was properly granted.

DISPOSITION

The judgment is affirmed. Respondents to recover costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WOODS, J.

We concur:

PERLUSS, P.J. ZELON, J.

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[1] The discrimination and contract claims are alleged against Allstate and the two law offices. On appeal, Cleveland only pursues her claims for discrimination and harassment based on age, gender and religion, retaliation, and intentional infliction of emotional distress (IIED).

[2] A prima facie case for retaliation requires a showing the employee engaged in a protected activity, the employer subjected the employee to an adverse employment action, and there is a causal link between the protected activity and the employers action. (Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1453 [an action for retaliation involves the same burden shifting test as a case for discrimination].)

[3] The evidence cited by appellant to support these facts shows Bladh testified that he had a number of meetings with Cartony about her poor performance in 2001 and that Cartony had improved her performance between the mid and final 2004 PEs, but he could not recall the specific areas in which she had improved.

[4] At the time Cole made the comment, appellant thought it was funny; she started to take offense after it became clear there was going to by a lay-off.

[5] Appellant admits she never heard Bladh make a derogatory remark about any religion.

[6] The evidence cited by appellant to support this alleged comment does not mention this incident.

[7] When that employee was being disciplined, he disagreed with Bladhs assessment and suggested he was being disciplined because he was Jewish. Appellant cites no evidence that she witnessed or was aware of this comment. (See Beyda v. City of Los Angeles, supra, 65 Cal.App.4th at p. 520.)

[8] As appellant started working for another firm in March 2005, this incident is irrelevant.

[9] The evidence only shows that appellant complained Benson got easier cases.