James v. Bank of America

Filed 9/6/07 James v. Bank of America CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

Plaintiff Brenda James worked at the Bank of America (Bank) for 25 years, until June 2004 when she resigned under threat of termination. The threat followed the Banks investigation of a complaint that plaintiff was mistreating the employees she supervised, which investigation included interviews with those employees. Plaintiff filed a seven‑count complaint, and the trial court granted the Bank summary adjudication of all counts, and thus summary judgment. Our review leads to the conclusion that the summary judgment was correct, and we affirm.

I. BACKGROUND

A. The Facts

Plaintiff Brenda James is African-American. She began her employment with the Bank in August 1979, as a stop payment clerk in the business services department (BSD). Within a year she was promoted to customer service representative, and the next year to customer service supervisor. In 1988 plaintiff chose to transfer to the official bank checks (OBC) group within the BSD, which group is primarily responsible for managing and balancing accounts for corporate customers, and quickly became a supervisor in OBC as well. In 1998 plaintiff was made an assistant vice president of the Bank, which was plaintiffs title at the time of her departure from the Bank.

Beginning in 1995 plaintiff reported to Vernice Chan, which remained plaintiffs reporting relationship until March 2004. According to plaintiff, as the supervisor in the OBC group she at one point managed as many as 30 employees, who are called associates by the Bank. At some point, apparently in 2004 when the OBC group became part of the account reconcilement department, the number of associates supervised by plaintiff diminished to seven. And in March 2004, apparently in connection with this reorganization, plaintiffs reporting assignment moved from Chan to Norbert Hermanson.

Plaintiff asserted below that she was never counseled for bad performance or behavior, and the Bank produced no evidence to the contrary. Indeed, plaintiff introduced several of her performance reviews, and they were exemplary. Those for the mid to late 1990s, for example, concluded plaintiff exceeds or far exceeds expectations; the reviews for the early 2000s ranked plaintiff as excellent or distinguished.

Despite those reviews, and despite that plaintiff reported to Chan for some nine and one-half years, their relationship was, in the words of plaintiffs brief, rocky. As plaintiff elaborates, she was concerned that Ms. Chan had divulged senior level confidential information about salaries and lay-offs. Ms. Chan was terminated in 2004. That termination, as will be seen, was impelled by a complaint from plaintiff. And that termination became the impetus for the series of events leading to the departure of plaintiff herself. It happened as follows:

In the spring of 2004 plaintiff requested a meeting with Faith Hamilton, the head of the automated clearing house (ACH) department, and the person to whom Chan reported. The claimed basis for the request was that Chan was making plaintiffs job difficult, including by retaliating against her for exercising Family Medical Leave Act (FMLA) rights, which plaintiff had apparently been exercising from time to time for many years to care for her ailing parents. The meeting occurred on June 2, 2004, attended by plaintiff, Chan, Hamilton, and Vanessa Chung who, according to plaintiff, was a business manager for ACH operations and who also reported to Hamilton. Plaintiff accused Chan of divulging confidential information, including about raises and/or bonuses, the identities of employees selected for lay-offs, and other things. Plaintiff asserts she also pointed out instances of Chans harassment of her. Despite the sweeping nature of what plaintiff claims she complained about at the June 2 meeting, she did not complain that Chan had discriminated against her. No, plaintiff answered at deposition, she did not accuse [Chan] of any conduct that [plaintiff] considered to be discriminatory based on [her] race.

Hamilton looked into the claims made by plaintiff, quickly investigating the charges about Chans behavior, which investigation led Hamilton to conclude that Chan had violated Bank policy. After consulting with human resources, Hamilton confronted Chan about what she discovered and offered her the opportunity to retire in lieu of being terminated. On June 4, 2004, Chan retired. That, however, would not be Chans last interaction with the Bank.

On June 7, 2004, Chan called the Banks advise and counsel department regarding her termination, and spoke with personnel advisor Kimberlee Prioleau. Chan told Prioleau that she had prepared a document related to her termination, which document, she said, also accused James of mistreating the associates under her. As requested, Chan e-mailed the document to Prioleau, and it was appended as an exhibit to her declaration in support of the Banks motion. The e‑mail is 11 pages long, single spaced, and sets forth a narrative of facts from Chans perspective, perhaps to be used as support for a lawsuit Chan was threatening, to which the e-mail referred on several occasions. Included in Chans e-mail, and especially germane to the issues here, is language the Bank describes as stating that plaintiff exhibited hostile and threatening behavior in her management style. That it did, all right, as Chans e-mail charged in pertinent part as follows:

Ms. James abuses her management position by having her associate, Rebecca buy her lunch outside of the bank and running bank post office errands during their work hours. In addition, she has associates carry her briefcase in for her in the mornings. OBC associates are so afraid of her especially the ones that speak English as their second language. She creates a hostile work environment by talking down to them. She has associates spying for her to ensure no associates come and talk to management. [] If she continues in this course of management style, I can assure you that one day the Bank will have a lawsuit on their hands with prejudice implications. At the time I was Brendas manager, I question [sic] the associates why they are doing this and they indicated to me they dont have a problem with it. I am sure it came from strict orders from Ms. James not to respond to me in a negative manner.

Prioleau called Hermanson, plaintiffs supervisor, to advise him of the charges in Chans email, following which Hermanson met with his manager, Senior Vice President Julie Santy. After they discussed the matter, Hermanson and Santy met with Santys manager, Senior Vice-President John Squicciarini, along with Theresa Ayala from human resources. The upshot of that meeting was that Hermanson was to survey the associates, in connection with which Ayala provided him a personnel questionnaire form to facilitate interviewing the associates.

On June 15, 2004, Hermanson met with six of the seven associates: Danica Ferguson, Rebecca Ong, Rienta Yauwant, Sandra Tse, Tamara Robb, and Bobaucar Diatta. The seventh associate, John Riga, was on vacation. Hermanson was aware that many of the associates did not have strong English language skills, so he decided that the best approach was to read the questions in the questionnaire aloud and write down the responses.

As Hermanson put it in his declaration, he was surprised and dismayed by what he heard, and concerned that plaintiff had mistreated her associates. As Hermanson elaborated at his deposition, five of the six associates he interviewedFerguson, Ong, Yauwant, Tse, and Robbsubstantiated that plaintiff mistreated them. Diatta did not. Hermanson vividly described how three of the associates were particularly emotional as they described things, illustrated by his description of Ferguson, who was visibly shaking when she described the treatment [plaintiff] had given her. She was very scared of [plaintiff], Hermanson said, and he concluded she was somewhat scarred by the experience. Likewise Robb, who cried when describing the treatment, which included being treated like a child . . . not being able to get water unless its a break . . . . Being frowned upon when going to the bathroom.

Challenged at his deposition as to what charges by the associates were serious, especially to support the ultimate termination, Hermanson answered as follows: The allegations that were the most serious were fear, fear of retaliation, intimidation, sharing her passwords with associates. Not letting the associates speak in their native language. Not letting the associates talk to each other unless its business related. Not letting them get up for water unless its a break or lunchtime. Frowning upon a bathroom break thats . . . not during their break time or lunchtime. I would say those are all serious allegations that were substantiated.

Plaintiffs opposition contains no declaration from any of the seven associates she was supervising, though her opposition does contain excerpts from the depositions of some of them. But those excerpts are not supportive, as they contain testimony corroborating Hermansons versions of the interviews. For example, Robb testified she was intimidated by plaintiff, who told her among other things that she could not leave her desk for a drink of water. Ong testified that plaintiff was mean to her and caused her stress, including by not allowing her to speak Chinese at work.[1] Tse testified in a similar vein.

On June 16, 2004, the day after the interviews, Hermanson received an email from Yauwant, thanking him for listening to them and providing more negative feedback about plaintiffs management style. And on June 21, 2004, Ferguson called Hermanson with yet more negative feedback, which she followed up with an email.[2]

Hermanson typed up the responses in what he described as a single summary sheet of the actual associate responses and forwarded it to Santy. There followed a telephonic meeting among Hermanson, Santy, and Squicciarini. Hermanson was asked if he gave any recommendation at this meeting, and denied that he did, though he admitted he knew what he thought should happen. Asked what, he said that the associates were treated horribly [which was] completely against the values of the bank to treat every associate with dignity and respect, and that in [his] mind there was no way that [he] could, in good conscience, let [plaintiff] manage these associates any longer. Santy and Squicciarini both concluded that plaintiff was mistreating the associates, and that they lost trust and confidence in [plaintiff] as a manager and felt that we could not, in good conscience, allow [her] to continue managing associates. After consulting with human resources, Hermanson, Squicciarini, and Santy agreed that termination was the only viable option.[3]

On June 22, 2004, plaintiff was offered the alternative of resigning from the Bank or being terminated. She opted to resign.

After plaintiff left there was no one on-site who was responsible for overseeing the OBC group, whose viability was at the time uncertain, as the Bank was considering consolidating the OBC function into another unit located outside of San Francisco. Management decided to merge the two San Francisco-based groups (OBC and Pay and File) into a single group, and appointed Rachel Wu, the existing team leader of the Pay and File group and a person on the Banks high potential list, as the new team leader.

B. The Pleadings And Proceedings Below

On October 14, 2004, plaintiff filed a complaint for damages alleging seven causes of action: termination in violation of public policy; retaliation; race discrimination, breach of contract; breach of the covenant of good faith and fair dealing; intentional infliction of emotional distress; and slander. The only named defendant was the Bank.

On December 15, 2004, the Bank filed its answer, consisting of a general denial and 22 affirmative defenses.

On July 29, 2005, the Bank filed a motion for summary judgment or, in the alternative, summary adjudication, set for hearing on October 14, 2005.

Plaintiff filed her opposition on September 30, 2005. Four days later plaintiff filed additional materials, followed days later by a joint ex parte application and stipulation to continue the hearing date. Among other things, the stipulation was to allow plaintiff to file an amended points and authorities and an amended response to separate statement, both of which were filed on October 11, 2005, along with two amended exhibits.

On October 14, 2005, the Bank filed its reply included with which were 52 pages of objections to evidence.

On October 18, 2005, plaintiff filed a 14-page Request for Surrebuttal that included argument, and also Evidentiary Objections to Defendants Motion for Summary Judgment or Partial Summary Judgment [sic]. The next day, October 19, plaintiff filed an ex parte application to allow the court to consider the papers filed on October 18.

The motion came on for hearing on October 20, 2005, when the court heard argument, in the course of which it noted that it had read, and would consider, all of plaintiffs papers, despite that some were filed late and without authorization. Notably, neither side mentioned the evidentiary objections it had filed, much less requested the objections be ruled on. At the conclusion of the hearing the court took the matter under submission, though indicating at the hearing that it was inclined to rule for the Bank, to the point where the court asked only the Banks counsel to prepare a written order.

On November 4, 2005, the court signed and filed its order granting summary judgment. The order was 12-pages long, prepared by counsel for the Bank, and signed by the court without change. The order granted summary adjudication on all seven causes of action, and thus summary judgment. Nothing was said in the order about the objections, and no ruling on them appears anywhere in the record.

On December 1, 2005, plaintiff filed a notice of appeal, which was premature, as the judgment was not entered until December 13, 2005. We elect to treat the appeal as timely. (Marriage of Battenburg (1994) 28 Cal.App.4th 1338, 1341.)

II. DISCUSSION

A. The Law And The Standard Of Review

Section 437c, subdivision (c) of the Code of Civil Procedure provides that summary judgment is properly granted when there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc.,  437c, subd. (c).) As applicable here, a moving defendant can meet its burden by demonstrating that a cause of action has no merit by showing that one or more elements of the causes of action . . . cannot be separately established. (Code Civ. Proc.,  437c, subd. (o)(1); see also, Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 486.) Once defendant meets this burden, the burden shifts to plaintiff to show the existence of a triable issue of material fact. (Code Civ. Proc.,  437c, subd. (p)(2).)

On appeal [w]e review a grant of summary judgment de novo; we must decide independently whether the facts not subject to triable dispute warrant judgment for the moving party as a matter of law. [Citations.] (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348.) Put another way, we exercise our independent judgment, and decide whether undisputed facts have been established that negate plaintiffs claims. (Romano v. Rockwell Internat., Inc., supra, 14 Cal.4th at pp. 486-487.) Or, as we said in Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 807 (Horn), in affirming a summary judgment for the employer, We review the evidence presented to the trial court and independently adjudicate its effect as a matter of law. (Lee v. Crusader Ins. Co. (1996) 49 Cal.App.4th 1750, 1756.)

With these rules in mind, we turn to an analysis of plaintiffs claims.

B. None Of Plaintiffs Claims Has Merit

1. Introduction: What Evidence Are We To Consider?

We begin our discussion with an issue not raised by either party: what evidence do we consider in our independent review? As noted, both sides filed myriad objections to the evidence from the other; as also noted, the trial court failed to rule on them. This failure, we recently confirmed, did not meet the trial courts obligation under the summary judgment statute. (Demps v. San Francisco Housing Authority (2007) 149 Cal.App.4th 564.) And the effect of this was described by the Supreme Court in Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 670, fn. 1: The trial court did not rule on the objections. Because counsel failed to obtain rulings, the objections are waived and are not preserved for appeal. [Citations.] Although many of the objections appear meritorious, for purposes of this appeal we must view the objectionable evidence as having been admitted in evidence and therefore as part of the record. (Accord Demps, supra, 149 Cal.App.4th at p. 575.)

Looking at all the evidence in the record, therefore, we turn to an analysis of the six causes of action plaintiff asserts were improperly summarily adjudicated.[4] And we analyze them in the order they were briefed by the parties and ruled on by the trial court.

2. The Third Cause Of Action, For Discrimination Based On Race

The third cause of action is for race discrimination, specifically a claim for disparate treatment, that plaintiff was treated differently from similarly situated individuals because of a protected characteristic. (Teamsters v. United States (1977) 431 U.S. 324, 335-336, fn. 15; Guz v. Bechtel National, Inc., (2000)24 Cal.4th 317, 355 (Guz).)

California has adopted the three-stage burden-shifting test established by the United States Supreme Court for trying claims of discrimination . . . based on a theory of disparate treatment. (Guz, supra, 24 Cal.4th at p. 354.) This so-called McDonnell Douglas[5] test reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially. (Ibid.)

The first step is that plaintiff must present a prima facie case. If she does, a presumption of discrimination arises, requiring the Bank to come forward with evidence that its action was taken for a legitimate, nondiscriminatory reason. (Guz, supra, 24 Cal.4th at pp. 355-356.) If the employer sustains this burden, the presumption of discrimination disappears. [Citations.] The plaintiff must then have the opportunity to attack the employers proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive. (Id. at p. 356.)

The Bank did not contend that plaintiff could not establish a prima facie case, but assumed for purposes of the motion she could.[6] Instead, the Bank contended it had a legitimate reason for doing what it did, the effect of which put the burden on plaintiff to show pretext. (Horn, supra, 72 Cal.App.4th at pp. 806-807.) The trial court concluded there was no triable issue of material fact that the Bank had a legitimate, non‑discriminatory reason for its decision as to plaintiff, and that plaintiff could not raise a triable issue of material fact as to pretext, nothing to raise a reasonable inference that the Bank acted with a discriminatory motive. We reach the same conclusion.

As discussed at length above, the Banks managers and its human resources department received information that plaintiff had exhibited improper behavior in her treatment of the associatesone aspect of which, not incidentally, was itself perhaps violative of FEHA. (See fn. 1 ante.) Management and human resources appropriately determined to investigate the charges, and interviewed the affected associates. The associates, many in the emotional terms described ante, verified to Hermanson that plaintiff had indeed mistreated them in the various ways also described ante, treating them, as Hermanson put it at one point in his deposition, like dirt. Whatever the description, Bank management determined that plaintiffs treatmentmore accurately, mistreatmentof the associates was inconsistent with the express policy of the Bank set forth in the associate handbook, and inconsistent with all the Bank stood for. Such, it cannot be gainsaid, is a legitimate basis for termination. (Cruey v. Gannett Co. (1998) 64 Cal.App.4th 356, 365 (Cruey) [good cause as a matter of law to terminate employee for having a style of management and philosophy inconsistent with [the employers] policy and goals]; Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1006-1007.)

That, then, was the Banks proffered reason for dealing with plaintiff, the effect of which was to put the burden on plaintiff to show that the reason was pretextual. And we have on several occasions described what plaintiff must show to meet that burden: she   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 . . . .   (Horn, supra, 72 Cal.App.4th at p. 807 [quoting Hersant, supra, 57 Cal.App.4th at p. 1005].) Or, as we confirmed later, plaintiff   must do more than establish a prima facie case and deny the credibility of the [defendants] witnesses. [Citation.] [She] must produce specific, substantial evidence of pretext.   (Horn, supra, 72 Cal.App.4th at p. 807 [quoting Bradley v. Harcourt, Brace and Co. (9th Cir. 1996) 104 F.3d 267, 270]; accord, Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 75 (Morgan).) This, plaintiff has not done.

It is difficult to discern from plaintiffs brief precisely what she asserts manifests pretext, especially as her brief early-on acknowledges that Hermansons termination of James was based on conduct that he believed warranted immediate termination under Bank policy, which included gross misbehavior, mistreatment of subordinates, fear and intimidation of subordinates. As the Bank argues, such concession alone establishes the correctness of summary adjudication, since plaintiff does not challenge that Hermanson and his managers concluded that plaintiff had mistreated the associates.

Likewise undercutting plaintiffs position here is her quizzical argument at the hearing below on the issue of pretext, which was in its entirety as follows: Were not saying that . . . Mr. Hermanson did not tell the truth when he went back to his managers and said all of the associates. And, his manager Santy also said that she based her understanding on it was all of the associates, and it clearly was not all of the associates. You have two declarations from associates that worked with Ms. James for over 15 years, and those declarations of Gladys, Medina, as well as Guadalupe must be considered. Tse said Ms. James is okay. So, you dont have all of the associates as represented by Mr. Hermanson. [] And, that is the pretext argument. That is the pretext argument that is so germane to where we are . . . . It appears from the above that plaintiff, like the unsuccessful Guz, has made substantial concessions to the truth of the Banks reason for her termination. (Guz, supra, 24 Cal.4th at p. 363.)

Attempting to decipher plaintiffs argument on appeal, and giving her the benefit of the most liberal of readings, plaintiff asserts in the argument portion of her brieftitled Summary Judgment Standardthat there are significant credibility issues regarding the survey results, the preliminary one being that the survey was changed from survey to investigation to personnel reviews. Also claimed to be noteworthy is that the questionnaire procedure was a departure from past practices, since surveys are typically online and not oral. Plaintiff also asserts that the deposition testimony of the associates do [sic] not corroborate Hermansons findings, and earlier in the factual portion of her brief, plaintiff claims that Hermanson mischaracterize[d] the oral answers in the survey, a claimed mischaracterization that plaintiff repeats and repeats. We are not persuaded.

Beginning with the global assertion that there are claimed credibility issues with the survey, as we confirmed in Horn and in Morgan, plaintiff   must do more than establish a prima facie case and deny the credibility of the [defendants] witnesses. [She] must produce specific, substantial evidence of pretext.   (Horn, supra, 72 Cal.App.4th at p. 808; Morgan, supra, 88 Cal.App.4th at p. 75.)

As to the claimed change of name, perhaps different people called the questionnaire different things. But whatever its title, the undisputed fact is that the purpose of the questionnaire was to investigate the charges in Chans e-mail to Prioleau. Again, one of our observations in Horn is apt: It is the substance of the reason provided, not the word choice, which is critical. (Horn, supra, 72 Cal.App.4th at p. 815.) As to any claimed assertion that Hermanson read the questions to the associates, he explained the reason for that, a reason corroborated at least by the testimony of associate Tse, who said that Hermanson had to explain certain words to her.

As to plaintiffs assertion that Hermanson did not accurately report the results of his interviews, the evidence is that Hermanson put all the associates comments, including the positive comments, on a summary sheet and forwarded it to Santy. The summary was, as Hermanson put it, of the actual associate responses. Santy testified that Hermanson told her that associate Diatta had no complaint, as well as the fact that another associate was on vacation, and she sent the results on to her manager, Squicciarini. Moreover, and as set forth in detail above, the deposition testimony confirms Hermansons summary. In deposition after deposition, associates revealed that they told Hermanson they were forbidden to get water or use the bathroom except at regular breaks; that they were not permitted to use their native language at work; and that they were intimidated. The undisputed evidence demonstrates that Hermanson accurately reported the results of the associate survey to the management team.

In one paragraph, without record reference, plaintiff asserts that human resources Manager Ayala acknowledged in her deposition that Hermanson did not show her his findings. Instead HR and management relied upon Hermansons verbal representation as to what those interviews revealed. As to the and management assertion, the record is otherwise, as shown above. And as to Ayala, even assuming plaintiffs assertion were correct, it is irrelevant, as there is no evidence anywhere that Ayala was a decision maker. As Santys declaration clearly stated, after consulting with human resources, Hermanson, John Squicciarini (my manager), and I all agreed that termination was the only viable option. Thus, regardless of what Ayala saw or was told, it cannot be used to show the requisite discriminatory animus. (Horn, supra, 72 Cal.App.4th at pp. 809-810.)

Though not clear from her brief, at oral argument plaintiff asserted that Hermanson should have interviewed associates no longer working under plaintiff, referring to Guadelupe Tenorio and Gladys Medina, two people who provided declarations supporting plaintiffs opposition. Plaintiff advances no reason, let alone a good reason, why either of these women should have been interviewed, and we can think of none. Medina had been retired since 1998, and Tenorio last reported to plaintiff in 2003, and was on permanent disability from the Bank.

Plaintiff does attempt, however briefly, to contrast her treatment with other managers, including Christian Selmi, a Caucasian man, and Chung, an Asian woman. Plaintiffs apparent claim is that these two also frequently raised their voices and yelled at associates, slammed doors inappropriately, and were counseled for their hostile behavior. None of them were subjected to oral surveys, disciplined and certainly not terminated. Whatever the true facts about these others, the true fact about plaintiff is that the associates complaints involved much more than plaintiffs raising her voice and yelling at associates. The various complaints about plaintiffs behavior are set forth ante, and Hermanson made it clear that it was a combination of factors that led to plaintiffs demise. In short, any argument that other managers may have yelled is irrelevant. They are not valid comparators. (See Vasquez v. County of Los Angeles (9th Cir. 2003) 349 F.3d 634, 641 [[I]ndividuals are similarly situated when they have similar jobs and display similar conduct.].)

Plaintiff also refers, again in a single paragraph, to the fact that Wu was appointed to fill plaintiffs former position, a paragraph that appears in plaintiffs argument that she established a prima facia case of race discrimination. To the extent that the reference to Wu is to support that claim, it is irrelevant. (See fn. 5 ante). To the extent it is offered as evidence of pretext, it lacks merit. That is, with plaintiff gone from the Bank, the OBC group was left without an on-site supervisor, so management decided to merge the two San Francisco-based groups (OBC and Pay and File) into a single group. Once they did that, the choice for the new team leader was Wu, who was consistently on the Banks high potential list.[7]

Finally, plaintiffs brief states that managerial personnel revealed that the Bank has a progressive discipline policy, which begins with counseling and is then followed by more severe corrective action. The next sentence states, without record reference, that the HR manager notes that what constitutes a basis for immediate termination is subjective. This sentence makes it clear that the Banks policy was that the appropriate level of discipline depended on the circumstances. The evidence here demonstrated that the management team determined that termination was appropriate based on the seriousness of plaintiffs conduct. We, of course, are not in a position to  second-guess an employers business judgment.  (Guz, supra, 24 Cal.4th at p. 375.)

3. The Second Cause Of Action, For Retaliation

The second cause of action is for retaliation, the law applicable to which was recently distilled by Division One of this Court, in McRae v. Department of Correction and Rehabilitation (2006) 142 Cal.App.4th 377, 386: Government Code section 12940, subdivision (h) makes it unlawful for an employer to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part. (See also Lab. Code,  1102.5, subd. (b).) To establish a prima facie case of retaliation, the plaintiff must show he or she engaged in a protected activity, the employer subjected the employee to an adverse employment action, and a causal link existed between the protected activity and the employers action. (Citing Yanowitz v. LOreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)

The statutory language of Government Code section 12940, subdivision (h) indicates that protected conduct can take many forms. Specifically, section 12940, subdivision (h) makes it an unlawful employment practice [f]or any employer . . . to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.

Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. (Morgan, supra, 88 Cal.App.4th at p. 68.) If it does, the presumption of retaliation   drops out of the picture,  [citation] and the burden shifts back to the employee to prove intentional discrimination. (Ibid.) As Presiding Justice Kline confirmed,  The retaliatory motive is proved by showing that plaintiff engaged in protected activities, that his employer was aware of the protected activities, and that the adverse action followed within a relatively short time thereafter. [Citation.] The causal link may be established by inference derived from circumstantial evidence, such as the employers knowledge that the [employee] engaged in protected activities and the proximity in time between the protected action and allegedly retaliatory employment decision.   [Citations.] (Id. at p. 69.)

The trial court granted summary adjudication on the retaliation claim, concluding that plaintiff failed to show a prima facie case of retaliation and, even if she had, there was no evidence that decision makers Hermanson, Santy and Squicciarini acted with any retaliatory motive. We agree.

Plaintiffs entire argument on this issue is in two-thirds of a page, which begins with the statement that the bank admitted that [plaintiff] complained about violations of her FMLA rights to Mr. Hermanson and in a management meeting that occurred on June 2, 2004. From there, plaintiff argues the timeline is significant, as Hermansons investigation was initiated . . . the following week, and on June 22, 2004, [plaintiff] was terminated. So, plaintiff concludes, even if Mr. Hermanson may not have been the ultimate decision maker, his actions clearly and significantly tainted and influenced the final termination decision. Moreover, the timing and surrounding circumstances clearly raise a triable issue of fact that [plaintiff] was subjected to unlawful retaliation. Iwekaogwu v. City of Los Angeles(1999) 75 Cal.App.4th 803, 814-815 [(Iwekaogwu)]; Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 476 [(Flait)].)

Recognizing she must demonstrate protected activity, plaintiff points to her complaint in the June 2, 2004 meeting that her FMLA rights were being violated. That claimed violation was by Chan, and she, of course, was in no way involved in any decision to terminate plaintiffindeed, she herself had already been terminated. Faced with this, plaintiff asserts, again without record reference, that she made her protected reports on June 2, 2004 and it [sic] was received by Mr. Hermanson. Such assertion is belied by the record.

To begin with, it is undisputed that Hermanson was not present at the June 2, 2004 meeting where plaintiff claims she complained about Chan and her claimed harassment. And contrary to plaintiffs unsupported assertion in her brief, there is nothing in the record showing that Hermanson (or, for that matter, Santy or Squicciarini) had actual knowledge of the claimed FEHA violation. Indeed, the record is 180 degrees contrary. Hermanson, Santy and Squicciarini all affirmatively testified that [p]rior to this litigation, [they were] not aware that [plaintiff] had ever accused Vernice Chan or any Bank employee of violating the FMLA. This, we noted in Morgan, was critical: perhaps most importantly, all of the actual decision makers . . . affirmatively stated in their declarations that they were not aware of appellants grievance or past complaints of retaliation or discrimination at the time they decided not to hire him. (Morgan, supra, 88 Cal.App.4th at p. 73.)

But even if Hermanson did know about it, we fail to see how such knowledge could avail plaintiff, as she admitted in her deposition that Hermanson had no issue with her FMLA leave: he was okay with it, she said. In fact, plaintiff admits that Hermanson, like many others, had a low opinion of Chan, to the point that he told plaintiff that Chans departure was no great loss to the bank.

But assuming arguendo plaintiff could demonstrate a prima facie case, she would still lose unless she could demonstrate a triable issue of fact that the termination was motivated by animus. Put conversely, the issue is did the employer present a legitimate, non-discriminatory reason for the termination? (Morgan, supra, 88 Cal.App.4th at pp. 68‑69.) As demonstrated above, the answer is an unequivocal yes.

The two cases cited by plaintiffIwekaogwu, supra, 75 Cal.App.4th at pp. 814‑815; and Flait, supra, 3 Cal.App.4th at p. 476are not to the contrary. Plaintiff Iwekaogwu produced both direct evidence of retaliation and comparative evidence. (Iwekaogwu, supra, 75 Cal.App.4th at p. 816). Plaintiff has produced neither. And Flait produced evidence that the person he confronted about sexual harassment was the sole person charged with the decision to terminate him; that no one at the employer could recall looking at Flaits sales or other records before terminating him; and that the person who terminated Flait told him he was doing a good job, that the company was lucky to have [him] as a salesman, and that there was a possibility [he] would be promoted to sales manager. (Flait, supra, 3 Cal.App.4th at pp. 479-480.) The record here is a far cry.

4. The Fourth And Fifth Causes Of Action, For Breach Of Contract andBreach Of The Covenant Of Good Faith And Fair Dealing.

The fourth and fifth causes of action are respectively for breach of contract and breach of the covenant of good faith and fair dealing. The trial court concluded that there were no triable issues of material fact that plaintiff was an at-will employee, that no one had ever told her she could only be terminated for cause, and that in any event good cause existed for her termination. Again, we agree.

Preliminarily, we note it is appropriate to consider these two causes of action together, as they are, in the employment context, co-extensive. As the Supreme Court instructed in Guz: A breach of the contract may also constitute a breach of the implied covenant of good faith and fair dealing. But insofar as the employers acts are directly actionable as a breach of an implied-in-fact contract term, a claim that merely realleges that breach as a violation of the covenant is superfluous. This is because, as we explained at length in Foley, the remedy for breach of an employment agreement, including the covenant of good faith and fair dealing implied by law therein, is solely contractual. In the employment context, an implied covenant theory affords no separate measure of recovery, such as tort damages. (Foley [v. Interactive Data Corp. (1988)] 47 Cal.3d 654, 682-700.) Allegations that the breach was wrongful, in bad faith, arbitrary, and unfair are unavailing; there is no tort of bad faith breach of an employment contract. [] . . . To the extent Guzs implied covenant cause of action seeks to impose limits on Bechtels termination rights beyond those to which the parties actually agree, the claim is invalid. To the extent the implied covenant claim seeks simply to invoke terms to which the parties did agree, it is superfluous. (Guz, supra, 24 Cal.4th at p. 352.)

Labor Code section 2922 provides in pertinent part that [a]n employment, having no specified term, may be terminated at the will of either party . . . This section has been construed in Foley v. Interactive Data Corp.[, supra,] 47 Cal.3d 654 to create a presumption of at-will employment unless superseded by a contract, express or implied, which limits the employers right to discharge the employee. (Id. at p. 665.) Apart from consideration and express terms, other factors which can be used to ascertain the existence and scope of an employment agreement include (1) the personnel policies or practices of the employer, (2) the employees longevity of service, (3) actions or communications by the employer reflecting assurances of continued employment, and (4) the practices of the industry in which the employee is engaged. [Citation.] (Cruey, supra, 64 Cal.App.4th at p. 362.)

The Bank asserts that plaintiff signed a written agreement at the time she was employed, the very agreement, the Bank argues, that was held in DeHorney v. Bank of AmericaNat. Trust and Sav. (9th Cir. 1989) 879 F.2d 459 to establish as a matter of law an express at-will employment relationship. The Bank further asserts that various employee handbooks published over the years, including those provided to plaintiff, demonstrate that plaintiffs employment was at will.

Copies of the agreement signed by plaintiff and various handbooks are in the record, and plaintiff does not disagree that she signed the agreement or read the handbooks. Rather, her separate statement asserts that she disputes the effect of the signed agreement in part, as this statement was negated by representations made throughout her employment. Thus, plaintiff apparently concedes that, unless the representations negated what she signed, she was an at-will employee, the effect of which was recently confirmed by the Supreme Court in Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 392, where, quoting Guz, the court held that  An at‑will employment may be ended by either party at any time without cause, for any or no reason, and subject to no procedure except the statutory requirement of notice. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 335.)

Plaintiffs only argument in connection with these two causes of action, set forth in one paragraph, is that [I]mplied good cause term negates at-will employment. And the sum total of that argument is that plaintiff was by any standard, a long‑term employee . . . . [which] was, for the most part, not only her career, but her lifes work. . . . Throughout her employment, she received assurances that so long as she worked hard and excelled, she would continue to have a long-term career with the Bank. The encouragement to continue in her efforts and to strive for higher positions were also reflected in her performance evaluations. It is manifestly insufficient.

For such a contract claim to succeed, plaintiff must come forward with substantial evidence that the Bank intended her employment to be other than at will. As the court stated in Eisenberg v. Alameda Newspapers, Inc. (1999) 74 Cal.App.4th 1359, 1387, plaintiff must produce competent evidence of an agreement that . . . she could not be discharged without good cause.

Here, plaintiff admits that no one ever told her that she could be terminated only for good cause. Instead, she asserts only she worked at the Bank a long time and that she would continue to have a long-term career at the Bank. Plaintiff identifies no one making any such claimed promise, and the length of employment is simply not enough. As Guz puts it, Absent other evidence of the employers intent, longevity, raises and promotions are their own rewards for the employees continuing valued service; they do not, in and of themselves, additionally constitute a contractual guarantee of future employment security. (Guz, supra, 24 Cal.4th at p. 342.) Or, as we confirmed in Horn,  evidence of positive performance reviews, commendations, salary increases, and vague assurances that he would become a sales manager was not sufficient to create a triable issue of fact as to whether the parties had implicity agreed [the companys] right to terminate [him] would be limited. Most of those factors are natural occurrences of an employee who remains with an employer for a substantial length of time. [Citation.]  (Horn, supra, 72 Cal.App.4th at p. 819.)

Finally on this claim, we note that even if the Bank could terminate plaintiff only for good cause, such cause was present here. Cruey, supra, 64 Cal.App.4th 356, is persuasive. Cruey was terminated after a subordinate accused him of sexual harassment, and the employers stated reason for the termination was that Cruey had a style of management and philosophy inconsistent with [the employers] policy and goals. (64 Cal.App.4th at p. 365.) Affirming a summary judgment for the employer, the Court of Appeal held that the question was not whether Cruey had actually engaged in misconduct, but whether the employer had conducted a good faith investigation into the charges, (ibid., fn. 8.) going on to observe that in the case of employees with management responsibilities, the employer must of necessity be allowed substantial scope in the exercise of subjective judgment in determining whether conduct is undesirable. (Ibid.)

5. The Seventh Cause Of Action, For Slander

Plaintiffs seventh cause of action, labeled slander, alleged on information and belief that defendants made defamatory statements that plaintiff was terminated for cause and have advised others both within and without the Bank of that. No names were alleged, neither those of the claimed publishers nor those who allegedly heard what was allegedly said. Plaintiffs separate statement was no more specific, asserting the same generalities, with the same failure to identify people as in the complaint. And while plaintiffs declaration did identify three people, they do not assist plaintiff, as she testified only that she received three calls, none of which supports any claim of slander.[8]

The trial court concluded that plaintiff did not raise a triable issue of material fact that the Bank published any defamatory, unprivileged statements about her. Now, in her appellate brief, plaintiff asserts that after she left the Bank she received numerous calls from [non-management] personnel asking why she had been fired; asserts that the employees would have believed she was terminated because the Bank did not clarify that she had resigned; and further asserts that her termination damaged her business reputation and had prevented her from obtaining similar employment. It is inadequate.

Slander is a false and unprivileged publication, orally uttered, that [t]ends directly to injure [plaintiff] in respect to [her] office, profession, trade or business . . . . (Civ. Code,  46, subd. 3.) Plaintiffs first task in a slander suit is to show the defendant made the allegedly defamatory statement. (Gallagher v. Connell (2004) 123 Cal.App.4th 1260, 1266.) Here, there is no real evidence about what the bank personnel said. Nor who they were. Nor whether they were in any position to speak so as to render the Bank liable for what was said. Nothing.

But whatever was said, and whoever said it, one thing is clear by plaintiffs own contention: the statements were made only to other managers and Bank personnel. And unless plaintiff could show malice, any such statements would be privileged under Civil Code section 47 subdivision (c), which provides that a privileged publication is one made In a communication, without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information. There is no evidence of malice here.

Deaile v. General Telephone Co. of California (1974) 40 Cal.App.3d 841 is on point. Deailes suit against her former employer included a claim for defamation, and she introduced evidence that after she elected forced retirement various representatives of the employer made defamatory statements in explaining to other employees the reason she left. A jury found for defendants, and the Court of Appeal affirmed, on the basis that the undisputed evidence show[ed] that all recipients of the allegedly libelous communications were in the employ of defendant and worked in the same facility which plaintiff had managed or were plaintiffs superiors. (40 Cal.App.3d at p. 846.) Thus, the communications were privileged. (Ibid.) Likewise here.[9]

In sum, plaintiff shows no unprivileged defamatory statement to any third person. Lacking such showing, plaintiffs claim fails. (Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 106.)

6. The Sixth Cause Of Action, For Intentional Infliction Of Emotional Distress

Plaintiffs sixth cause of action, styled intentional infliction of emotional distress, did nothing more than incorporate the earlier 18 paragraphs in her complaint. Plaintiffs opposition below was the same, her four-line argument resting squarely on her FEHA claims. The trial court concluded that plaintiff was not subjected to any outrageous behavior and, in the alternative, any claim for emotional distress was preempted by workers compensation. Plaintiffs four‑line argument, copied verbatim from her opposition below, fares no better here.

A cause of action for intentional infliction of emotional distress has four elements:  (1) outrageous conduct by the defendant; (2) the defendants intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiffs suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendants outrageous conduct.  (Huntingdon Life Sciences v. Stop Huntingdon Animal Cruelty USA (2005) 129 Cal.App.4th 1228, 1259, quoting Trerice v. Blue Cross of California (1989) 209 Cal.App.3d 878, 883.) The conduct complained of must be outrageous, that is, beyond all bounds of decency. (Cervantez v. J.C. Penney Co. (1979) 24 Cal.3d 579, 593). It must be so extreme that it cannot be tolerated by a civilized society. (E.g., Christensen v. Superior Court (1991) 54 Cal.3d 868, 903; Davidson v. City of Westminster (1982) 32 Cal.3d 197, 209.) Plaintiffs claim does not measure up.

As noted, plaintiffs claim is premised on her FEHA claims, which themselves are premised on the personnel management decision by the Bank. Such decisions, it has been held, are not outrageous conduct, whether they are poor management, criticism, discipline, or even termination. (See Janken v. CM Hughes Electronics (1996) 46 Cal.App.4th 55, 80; Trerice v. Blue Cross of California, supra, 209 Cal.App.3d 878, 883‑884.) The Banks conduct was not independently extreme and outrageous, and summary adjudication was proper for this reason alone. Further, plaintiff presented no evidence of any intent by the Bank to cause her distress, nor any evidence that she in fact suffered severe mental distress. Finally, and as the trial court held, any such claim would be barred by workers compensation exclusivity. (Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 155; compare Fretland v. County of Humboldt (1999) 69 Cal.App.4th 1478, 1492 [distress based on discrimination not preempted].)

Because of the result we reach, we do not address the Banks argument that summary judgment was proper because all of plaintiffs state law claims were preempted by the National Bank Act (12 U.S.C.  38). (See generally Peatros v. Bank of America (2000) 22 Cal.4th 147.)

III. DISPOSITION

The summary judgment for the Bank is affirmed.

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Richman, J.

We concur:

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Haerle, Acting P.J.

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Lambden, J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.

[1] The Bank asserts in its brief to us that any such an instruction could have been a violation of the FEHA, California Government Code section 12951, subdivision (a), which prohibits English-only policies at work. Since plaintiff concedes this allegation was a concern of the Bank, it should go without saying that the Bank had sufficient cause to terminate plaintiff for potential violations of law. Such assertion was not responded to in plaintiffs reply.

[2] Ferguson went on stress leave soon thereafter and, according to Santy, had not returned to the Bank as of July 2005.

[3] Santy testified she believed they discussed the possibility of placing plaintiff in a non-management role, but no such role was available in their group, and they did not think it feasible to place plaintiff in a new position in light of her misconduct.

[4] Plaintiffs brief makes no argument about the first cause of action, for termination in violation of public policy. Thus, any claim of error as to that cause of action is deemed abandoned or waived. (Electronic Equipment Express, Inc. v. Donald H. Seiler & Co., (1981) 122 Cal.App.3d 834, 858‑859, fn. 13.) This rule, we note, pertains here even though we conduct de novo review. That is, although the trial courts decision is reviewed independently, the scope of review is limited to those issues that have been adequately raised and supported in plaintiffs brief. (See Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6; Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.)

[5]McDonnell Douglas v. Green (1973) 411 U.S. 792.

[6] Despite this, plaintiff devotes a portion of her opening brief to an argument that plaintiff established a prima facie case of racial discrimination.

[7] The only other possible candidate to replace plaintiff was also an Asian woman, Ong, the team lead of the OBC group at the time of plaintiffs departure. However, Hermanson did not think Ong had the skills necessary for the position.

[8] Plaintiffs declaration states only that since my resignation I have received several phone calls from both former and still employed associates, expressly asking her why I was fired. I received calls from Linda Earls and Victoria Nhok, neither were employed at the bank at the time of my resignation. Rebecca Ong called me wanting to know whether I had a package or not and to tell me that she did not say anything against me.

[9] Though it is not clear she makes the argument here, plaintiff asserted below that her voicemail was changed after she left the Bank to state that plaintiff was no longer there. Any such claim fails, for several reasons. First, such statement is not defamatory. Second, plaintiff has not shown anyone heard it. Third, it is true, which is a complete defense. (Campanelli v. Regents of University of California (1996) 44 Cal.App.4th 572, 581.)