Majeske v. DRS Technologies
Filed 6/25/13 Majeske v. DRS Technologies CA2/7
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
STEVEN MAJESKE,
Plaintiff and Appellant,
v.
DRS TECHNOLOGIES, INC., et al.,
Defendants and Respondents.
B236760
(Los Angeles
County
Super. Ct.
No. BC429031)
ORDER MODIFYING OPINION
NO CHANGE IN JUDGMENT
THE COURT:
It is ordered that the opinion filed
herein on June 3, 2013, and
not certified for publication, be modified
as follows:
1.
On page 8, line 7, after the numeral (3), delete “DRS†and insert “STS.â€
2.
On page 9, first line, delete the word “corporate†and insert the word
“divisional.†On the second line, delete
the word “divisional†and insert the word “corporate.â€
3. On pages 10-11, the third paragraph reads as
follows:
“Even assuming DRS had knowledge
of the problems with the SRP and its effect on future employee transfers and
assuming it had the duty to disclose that information, there is still the
question of reliance. Majeske failed to
establish that had he known of the method of accounting, he would have opted
for the Hughes plan. He admitted he did
not understand the fine points of accounting.
He also stated he received a $30,000 retention bonus for staying at DRS
and actually liked the program. He did
not establish that the Hughes Plan would have allowed him to transfer between
divisions at Raytheon. He could not
prove that the only reason he stayed at DRS was because of the SRP. Moreover, Majeske did not establish that the
inability to transfer was the reason hindering his employment at DRS and thus
his ability to stay in the SRP. Majeske
was not ordered to transfer divisions.
He viewed transferring as the only way around his conflict with Viviano. A trier of fact could reasonably infer that
in a different economic climate, the costs of the SRP might not have affected
Majeske’s ability to transfer. Certainly
there was the possibility that at the time of the SRP presentation, Majeske
would not have cared at all about the way the costs of the SRP were expensed
and would have made his decision to enroll in the SRP even if the disclosure
had been made. Majeske failed to present
substantial responsive evidence of misrepresentation, constructive fraud or
fraud.â€
It should
read:
“Even
assuming DRS had knowledge of the problems with the SRP and its effect on
future employee transfers and assuming it had the duty to disclose that
information, there is still the question of reliance. Majeske did not demonstrate that there was a
triable issue of fact that had he known of the method of accounting, he would
have opted for the Hughes plan. He
admitted he did not understand the fine points of accounting. He also stated he received a $30,000
retention bonus for staying at DRS and actually liked the program. He did not produce evidence that the Hughes
Plan would have allowed him to transfer between divisions at Raytheon. He did not place evidence in the record
relevant to the issue that the only reason he stayed at DRS was because of the
SRP. Moreover, there was no evidence
that Majeske’s inability to transfer was the reason hindering his employment at
DRS and thus his ability to stay in the SRP.
Majeske was not ordered to transfer divisions. He viewed transferring as the only way around
his conflict with Viviano. Majeske
failed to present substantial responsive evidence of misrepresentation,
constructive fraud or fraud to demonstrate the existence of a triable issue of
material fact.â€
Appellant’s
petition for rehearing is denied. The
foregoing does not change the judgment.
PERLUSS, P. J. WOODS, J. ZELON,
J.
Filed
6/3/13 (unmodified version)
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
STEVEN MAJESKE,
Plaintiff and Appellant,
v.
DRS TECHNOLOGIES, INC., et al.,
Defendants and Respondents.
B236760
(Los Angeles
County
Super. Ct.
No. BC429031)
APPEAL
from a judgment of the Superior Court
of Los Angeles County,
David L. Minning, Judge. Affirmed.
Fersguson
Case Orr Paterson, Wendy C. Lascher and Meghan B. Clark; Law Office of Vida M.
Holguin and Vida M. Holguin for Plaintiff and Appellant.
Gordon
& Rees San Francisco and Don
Willenburg; Gordon & Rees Los Angeles,
Stephen E. Ronk, Anthony J. Bellone and Jennifer L. Ghozland for Defendants and
Respondents.
________________________________
In 2009, appellant Steven Majeske (Majeske) was
terminated from his employment at DRS Sensors and Targeting Systems, Inc., (hereinafter
STS) a subsidiary of DRS Technologies, Inc. (DRS, collectively referred to as
respondents). He filed an action for
wrongful termination and several other causes of action against respondents. Respondents filed a motion for summary
judgment and the trial court granted summary adjudication on five causes of
action. The case proceeded to a jury
trial on the remaining two causes of action (age discrimination and wrongful
termination). The court granted a motion
for directed verdict on those two causes of action and entered judgment in
favor of respondents.
Majeske
appeals and we affirm.
FACTUAL & PROCEDURAL BACKGROUND
The
following facts are taken from the papers submitted in support of the motion
for summary judgment.
In 1980,
Majeske was hired as a systems engineer at Hughes Aircraft. Hughes paid for him to enroll in a Master’s
in Business Administration from Pepperdine
University. In 1988, Majeske enrolled in the pension plan
offered by Hughes.
In 1997,
Raytheon purchased Hughes and took over the administration of the pension plan
(hereinafter referred to as the Hughes Plan).
As condition of the Hughes acquisition, the Department of Justice
ordered Raytheon to stop doing business on certain infrared military
technology. In addition, Majeske and
other former Hughes engineers were banned from working for Raytheon for three
years. Raytheon then sold its infrared
technology group to DRS and Majeske was given the option of going to work for
DRS. Majeske accepted a job with DRS in
October 1998. He was given the option of
returning to Raytheon after the three-year period, but had to do so before the
expiration of five years (in 2003), in order to “bridge back,†i.e. return to
participation, in the Hughes Plan. He
did not sign a written contract of employment with DRS.
Near the
end of the three-year period, in 1991, DRS wanted to retain Majeske and the
other former Hughes employees, so to induce them to stay it created a
retirement plan (the SRP) which was designed to “make employees whole†and
“mirror†the benefit calculations and features of the Hughes Plan.
In
September 2001, DRS representatives met with certain former Hughes employees
and explained the SRP to them. They were
given a written summary of the SRP.
Andrea
Mandel, the DRS vice-president of Human Resources, told them the SRP was a
“nonqualified unfunded plan,†which would be paid from the general assets of
the company. She also told them that if
DRS entered bankruptcy proceedings, they would be treated like any other creditors. She did not discuss how the plan expenses
would be borne by DRS. She knew that all
other employee benefit plans were allocated out to the individual’s
organizations, and assumed the SRP would be expensed the same way, but it was
never discussed at that meeting. Majeske
admitted that if she did say that the SRP was payable out of the general assets
of DRS, he did not know accounting “to that level.†Majeske understood that the DRS board of
directors could terminate the plan. He
did not know if the Hughes plan could be terminated.
Close to
the end of the five-year term in which Majeske could choose to reenroll in the
Hughes plan, Majeske compared his retirement benefits in the SRP. He applied for and received a job offer from
Raytheon. He told his supervisor at DRS
that he was concerned because he would receive less from SRP than the Hughes
Plan. His supervisor, Bob Duvall,
assured him that DRS would fix the issue.
In September 2003, Majeske and other participants in the SRP received a
memorandum from Fred Marion, President of the DRS Electro Optical Systems
Group, stating that DRS intended to provide a supplemental retirement benefit
that would make the participants “whole†if they did not re-enroll in the
Hughes plan. DRS then amended the SRP.
DRS also
offered Majeske a $30,000 retention bonus and Majeske enjoyed working at
DRS. Majeske elected to remain at
DRS. In 2004, he was given the position
of “Project Manager 5.â€
Under the
SRP, a participant could retire and receive benefits at age 65 or anytime after
55, when the sum of the employee’s age plus years of service equaled 75 (the
Magic 75).
During the
period from 1998 through October 2004, Majeske received written performance
reviews from DRS with ratings of “5†for “outstanding,†and “4†for “exceeds
expectations.†His supervisors at the
time were Robert Duvall and James Neu.
In 2004,
Neu assigned Majeske to take over a troubled program called CETS. Neu gave Majeske the highest performance
rating for 2004.
In October
2004, Neu was replaced by Robert Viviano.
In 2005,
Majeske received a performance review of “3†for “meets expectations.†He did not receive any performance reviews
after 2005.
In 2005,
Viviano removed Majeske from CETS. In
2005 or 2006, he placed Majeske on the
Tank Urban Survivability Kit (TUSK) program.
Viviano then placed Majeske on the Crosshairs program in 2006.
DRS lost
the Crosshairs program to another company.
Majeske admitted he had some responsibility for the loss of the
Crosshairs program.
Around this
time, Viviano stopped assigning work to Majeske. Viviano said he was not qualified to be a
program manager, but admitted that Majeske was an “above average†proposal
writer. Viviano told Majeske he had no work for him. Majeske did not receive any pay raises and
was told that his salary was higher than the Project Manager 5 band.
Certain STS
supervisors told Majeske that Viviano did not like him, so Majeske sought
advice from Viviano’s supervisor, Jimmy Baird.
Baird advised Majeske to transfer out of Viviano’s division.
Majeske was
able to secure a transfer to the Homeland Security Solutions (HSS) division of
DRS. HSS discovered that because the
cost of the SRP plan was borne by the employee’s division and not at the
corporate level, it could not hire Majeske.
Prior to this time, Majeske had never heard that the SRP adversely
affected his ability to transfer. Nor
had anyone ever discussed with him the cost of the SRP before.
In 2008,
Michael Tortorella, also a former Hughes employee who was enrolled in the SRP,
sought a transfer to another division and was told that the SRP made him
“unaffordable†and prevented him and Majeske from transferring.
Rosarie
Holland, Human Resources Manager for STS, said Viviano mentioned on more than
one occasion that he wanted to get rid of the “Torrance employees†which
included Majeske’s group from Hughes.
In 2007,
Majeske was 50 years old, had 27 years of employment, and thus was less than
five years away from the Magic 75.
In August
2008, Mandel told Majeske and the other SRP participants that DRS was going to
freeze the SRP benefits because it was too expensive. Majeske and Tortorella wrote to the CEO of
DRS, Mark Newman, about the situation.
Newman reinstated the SRP in September 2008, and said to Mandel and COO
of DRS, Bob Mehmel, that the cost of SRP should not be an impediment for
employees to transfer within DRS. Viviano expressed concern to
other DRS managers about the costs of the SRP.
Other managers also discussed the pension liabilities of the former
Hughes employees.
In 2008, DRS hired another project
manager Jennifer Ferrario, as a Project Manager 4. Ferrario was over ten years younger than
Majeske.
In 2009,
DRS hired Kwang Lee, who was younger than Majeske, as a Project Manager 5.
In July
2009, the Department of Defense cancelled the Future Combat Systems Program
(FCS) at STS. Majeske had not worked for
FCS in 2009.
On July 23,
2009, 19 employees, including Majeske and Tortorella, were terminated from
employment at DRS. Majeske and
Tortorella were the only ones not working full-time on FCS. Two employees who were still enrolled in SRP
remained. Majeske’s compensation at that
time was $167,000. Carolyn Rose,
Director of Human Resources for DRS, performed a “disparate impact analysisâ€
prior to the layoff and determined there was no disparate impact with respect
to age.
The DRS
layoff justification form stated that there was “insufficient work†for Majeske
and that he did not have the “required skills or background.†It compared him with Kwang Lee and Richard
Willis, both Project Manager 5s. DRS
claimed Lee was fluent in Korean, which was needed for the position and Willis
had space flight experience that Majeske did not have. Majeske did in fact have experience with
space flight instruments.
In December
2009, Majeske filed a complaint for age discrimination, wrongful termination,
fraud and intentional deceit, constructive fraud, negligent misrepresentation
and breach of the implied covenant of good faith and fair dealing against
respondents. The complaint was later
amended to add a cause of action for unfair competition.
This case
was found to be related to Tortorella’s wrongful termination lawsuit,
County Superior Court Case No. BC431080, which raised similar claims. Majeske’s case was designated as the lead
case.
Respondents
filed a motion for summary judgment, or in the alternative, summary
adjudication. On May 23, 2011, the trial
court granted summary adjudication of the third (fraud and intentional deceit),
fourth (constructive fraud), fifth (negligent misrepresentation), sixth (breach
of implied covenant of good faith and fair dealing) and seventh (unfair
competition) causes of action. On July
11, 2011, a jury trial commenced on the two remaining claims of age
discrimination and wrongful termination.
After both sides had rested, Majeske filed a motion to amend the
complaint to add allegations of retaliation to his cause of action for wrongful
termination and to include a cause of action for interference with prospective
economic advantage. The court denied the
motion. Respondents moved for nonsuit on
the two causes of action, and the court instead, granted judgment by directed
verdict in respondents’ favor.
CONTENTIONS ON APPEAL
Majeske
appealed. He contends: (1) the trial
court erred in granting summary adjudication on the fraud, constructive fraud,
negligent misrepresentation and unfair competition causes of action; (2) the
trial court erred by directing a verdict at the trial of the age discrimination
and wrongful termination causes of action; and (3) the trial court erred in
denying the motion to amend the complaint to add a retaliation cause of action.
DISCUSSION
1. Summary adjudication
We review
the grant of a motion for summary judgment de novo, considering all the
evidence set forth in the pleadings except that to which successful objections
have been made. (Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 334.) Accordingly we go through the same three-step
process required of the trial court, that is, we (1) identify the issues framed
by the complaint, (2) determine whether the moving party has made an adequate
showing negating the opponent’s claim, and (3) determine whether the opposing party
has raised a triable issue of material fact, resolving any doubts in favor of
the opponent. (Barber v. Marina Sailing, Inc. (1995) 36 Cal.App.4th 558,
562.) The moving party must make a prima
facie showing of the nonexistence of a triable issue of fact, and if this
burden is met, the burden shifts to the opponent to show the existence of a
triable issue. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)
In their
motion for summary judgment, respondents contended that the DRS representatives
explained to Majeske and other former Hughes employees in 2001 that SRP was an
unfunded, nonqualified plan to be paid out of DRS’s general assets. No one discussed about how DRS would account
for the plan and Mandel said she was not even aware of where the expense of the
plan would be borne or of the accounting logistics. Majeske was given a summary plan
description. Later the plan was adjusted
to meet concerns of those employees and Majeske was given another summary plan
description. Respondents contend that
there were no misrepresentations or fraudulent statements made to Majeske, nor
did he ask. They contend that he was
terminated because of the loss of the FCS contract and because he had less than
stellar performance reviews in his later years of employment.
In his
opposition to the summary judgment motion, Majeske contended: (1) the motion
for summary judgment should have been taken off calendar because respondents
failed to produce computer-organized discovery (“metadataâ€
as requested; (2) he established a prima facie case of age discrimination and
wrongful termination; (3) respondents failed to disclose the fact that DRS was
financially responsible for the SRP; (4) Mandel knew how the SRP costs were
expensed and did not tell Majeske or the other Hughes employees; (5) Majeske’s
reliance on the representations about the SRP caused him to lose his lucrative
benefits under the Hughes-Raytheon plan and his inability to transfer
employment within DRS removed him from career advancement opportunities,
setting him up for termination; (6) respondents did not abide by their promises
regarding the SRP, did not follow its policies regarding transfer and layoff
and essentially terminated Majeske to avoid paying SRP costs; and (7) DRS’s
misrepresentations constituted unfair business practices. Majeske stated in his memorandum of points
and authorities: “The misrepresentation that forms the backbone of [Majeske’s]
fraud claim is [respondents’] failure to disclose a material fact—that the SRP
was expensed like all DRS benefits, at the divisional level. . . . Concomitant with the concealment of this
material fact, [respondents] were representing affirmatively that the SRP would
mirror the Hughes Plan and that it would make up for all losses by not bridging
back into the Hughes Plan. This was not
true because under the Hughes Plan, Hughes employees could transfer freely as
the Hughes Plan was supported at the corporate level.â€
Majeske
contends that the court erred in granting the motion for summary adjudication
because DRS misrepresented SRP would mirror the Hughes plan and make up for
what the participants lost when they left Hughes. He argues that DRS did not inform him and the
others that the expenses of SRP would be handled at the corporate level, not
the divisional level, thus making it impossible for him to transfer to another
division, and because of these representations, Majeske did not return to
Raytheon, and thus lost his chance to return to the Hughes plan.
a.
Misrepresentation and Fraud
The trial
court was correct in finding that Majeske could not show a triable issue of
fact as to the causes of action for misrepresentation, constructive fraud and
fraud.
The
elements of fraudulent deceit are: (a) misrepresentation (false representation,
concealment, or nondisclosure); (b) knowledge of falsity; (c) intent to induce
reliance; (d) justifiable reliance; and
(e) resulting damage. (
Cal.4th 631, 638; Civ. Code, § 1709 .)
Reliance is an essential element.
(Mirkin v. Wasserman (1993) 5
Cal.4th 1082, 1110.)
The
elements for fraudulent concealment are: (1) concealment or suppression of a
material fact, (2) duty to disclose the fact, (3) intent to conceal or suppress
with intent to defraud, (4) plaintiff must have been unaware of the fact and
would not have acted as he did if he had known of the concealment or
suppression, and (5) resulting damage. (
Cal.App.4th 1187, 1198; Marketing West,
Inc. v. Sanyo Fisher (1992) 6 Cal.App.4th 603, 612-613.)
Negligent
misrepresentation is a form of deceit and its elements are: (1)
misrepresentation of a material fact, (2) no reasonable grounds for believing
it to be true, (3) intent to induce reliance, (4) plaintiff’s ignorance of the
truth and reliance thereon, and (5) damages.
(Fox v. Pollack (1986) 181
Cal.App.3d 954, 962.) It does not
require intent to defraud. (
“Actual
reliance occurs when the defendant’s misrepresentation is an immediate cause of
the plaintiff’s conduct, altering his legal relations, and when, absent such
representation, the plaintiff would not, in all reasonable probability, have
entered into the transaction. (
(1997) 15 Cal.4th 951, 976.)†(
Cal.App.4th 513, 519.)
Constructive
fraud occurs when someone in a confidential or fiduciary relationship to
another induces justifiable reliance to the prejudice of the other. (Civ. Code § 1573; Odorizzi v. Bloomfield School Dist. (1966) 246 Cal.App.2d 123,
129.) If there is no fiduciary
relationship, the duty to disclose exists when the defendant has control over
material facts which were not disclosed, either if it has exclusive knowledge
of material facts, if it actively conceals a material fact, or when it makes
partial representations of material facts but also suppresses some.
(Jones, supra, 198 Cal.App.4th
at p. 1199.)
Majeske
contends that DRS knew that the SRP was expensed to the individual divisions
and thus had a duty to disclose that the method of accounting would have an
effect on his ability to transfer. The
potential for problems with transferring directly affected his ability to reap
the benefits of the SRP and thus was a crucial factor in his decision to
participate in the plan and not to bridge back to the Hughes Plan. DRS’ failure to inform him is the basis of
his claims for fraud and negligent misrepresentation.
Even
assuming DRS had knowledge of the problems with the SRP and its effect on
future employee transfers and assuming it had the duty to disclose that
information, there is still the question of reliance. Majeske failed to establish that had he known
of the method of accounting, he would have opted for the Hughes plan. He admitted he did not understand the fine
points of accounting. He also stated he
received a $30,000 retention bonus for staying at DRS and actually liked the
program. He did not establish that the
Hughes Plan would have allowed him to transfer between divisions at
Raytheon. He could not prove that the
only reason he stayed at DRS was because of the SRP. Moreover, Majeske did not establish that the
inability to transfer was the reason hindering his employment at DRS and thus
his ability to stay in the SRP. Majeske
was not ordered to transfer divisions.
He viewed transferring as the only way around his conflict with Viviano. A trier of fact could reasonably infer that
in a different economic climate, the costs of the SRP might not have affected
Majeske’s ability to transfer. Certainly
there was the possibility that at the time of the SRP presentation, Majeske
would not have cared at all about the way the costs of the SRP were expensed
and would have made his decision to enroll in the SRP even if the disclosure
had been made. Majeske failed to present
substantial responsive evidence of misrepresentation, constructive fraud or
fraud.
b.
Unfair competition.
In his
complaint, Majeske alleged that the unfair competition claim was based on the
same alleged misrepresentations about the SRP and that they were unfair or
fraudulent claims in violation of Business and Professions Code sections 17200
et seq. In opposition to respondents’
summary judgment motion, Majeske claims that the representations that the SRP
plan was a “DRS plan†was likely to deceive him and thus constituted an unfair
business practice. On appeal, however,
Majeske contends that the unfair competition claim is based on his claim for
age discrimination in violation of the Fair Employment and Housing Act (FEHA)
(Gov. Code, § 12900 et seq.). He argues
that because the cause of action was not based on fraud and misrepresentation,
summary adjudication should not have been granted and that the unfair
competition cause of action should have proceeded to trial along with the age
discrimination cause of action.
At the time
of the summary judgment motion, there was no indication that Majeske was
pursuing the theory based on age discrimination. Majeske stated that the basis of the unfair
competition was that DRS was misrepresenting employee benefits in order to gain
an advantage over other employers. He
may not raise that claim for the first time on appeal. (City
of San Diego v. D.R. Horton (2005) 126 Cal.App.4th 668, 685.) There is no evidence that DRS sought to
unfairly compete by driving down its costs by hiring only younger
employees. Summary adjudication was
properly granted on this cause of action.
2. Directed verdict
After the
trial, respondents moved for nonsuit or partial nonsuit after the close of
evidence on the ground that Majeske failed to introduce sufficient evidence as
a matter of law to prove his claims for age discrimination and wrongful
termination. Respondents alleged that
Majeske did not demonstrate that his age was a motivating factor for his
termination under a disparate treatment analysis, nor that their decision to
terminate him had a disparate impact on the workforce as a group.
Code of
Civil Procedure section 581c authorizes a motion of nonsuit after the plaintiff
has presented his or her evidence in a jury trial. Here, since the motion was made after the
presentation of both sides’ evidence, the court treated it as a motion for a
directed verdict.
A directed
verdict may be granted when the court determines there is no substantial
evidence to support the claim of the party opposing the motion or a verdict in
its favor. The trial court gives the
evidence of the opposing party all the value to which it is legally entitled
and gives every legitimate inference from that evidence in favor of the party
opposing the motion. (
358; Magic Kitchen v. Good Things
International Ltd. (2007) 153 Cal.App.4th 1144, 1154.) On appeal of an order granting a defendant’s
motion for a directed verdict in its favor, we review the evidence in the light
most favorable to the plaintiff, resolving all conflicts and drawing all
inferences in its favor and disregarding conflicting evidence. We reverse the judgment if there is
substantial evidence that would tend to prove each of the elements of the
plaintiff’s case. (Wolf v. Walt Disney Pictures and Television (2008) 162 Cal.App.4th
1107, 1119.)
At trial,
Mandel testified that she discussed the SRP with 22 former Hughes engineers in
order to retain them, and told them it was an unqualified pension plan which
was unfunded. She told them it would be
equal to the Hughes plan and that the payments would come out of DRS’ general
assets. The issue of transferring to
another division did not come up with Majeske until 2007.
Mandel
admitted that retirement cost was a factor in transferring between
divisions. But the cost of the SRP did
not become an issue until long after 2003, the year in which the employees
could bridge back to the Hughes Plan.
Majeske and
Tortorella were on the layoff list because of the cancellation of a contract
and not to retaliate against them. In
2009, after she received the layoff list, she had heard comments that Majeske
did not have a good reputation and that he would not receive good
references. No one suggested to Mandel
that Majeske was laid off because of his age.
Majeske was laid off because of insufficient work.
She also
testified about the statistics regarding age and participation in the SRP. One other person who was 16 days younger than
Majeske and who was enrolled in the SRP was not laid off. Majeske was the oldest SRP participant who
had not reached retirement age. There
were still SRP participants working at DRS at the time of trial. The average age of DRS employees before the
layoff –48 – was the same as it was after the layoff. Mandel and Rose Holland are older than
Majeske.
Viviano,
the Vice President and General Manager of DRS,
testified he did not recall if he looked at Majeske’s performance
reviews prior to the layoff and did not personally give him reviews. In 2007 and 2008, other supervisors were not
assigning Majeske work. Viviano was not
his supervisor during those years.
In 2008,
Majeske was working for the RSTA division on a part-time basis. RSTA did not have enough work for Majeske or
Tortorella. No one was willing to give
Majeske assignments in 2008 because of his prior poor performance.
Majeske
overran the costs on the Crosshairs program and received a bad performance
review. There were cost overruns and
delays on both the CETS and TUSK programs, which Majeske worked on. Majeske got a 2.5 rating for performance
while working on the Tusk program.
Majeske was an “adequate†proposal writer, but he performed
unsatisfactorily on three programs. He
had a lower “direct realization†score than other managers, that is, he spent
less time on contracts resulting in payments to DRS.
Viviano
said he never thought about how expensive Majeske was. The first time he heard of SRP costs was in
2008. He thought it was “a very
disproportionate benefit†for only a few employees. He admitted having a conversation with Mandel
expressing his displeasure about the SRP and did not remember saying he was
happy to be rid of Majeske and his overhead.
Viviano
testified the freeze of the SRP in 2008 made the division better able to
compete in the marketplace but when the SRP was unfrozen, he felt the cost
“wasn’t going to bankrupt the division.â€
He was concerned about losing people in the SRP program to other
companies offering similar pension plans.
The loss of
the FCS project resulted in a 20 percent revenue loss to DRS. Not only FCS employees were laid off. Nineteen people were laid off as a direct
result of the loss of the FCS contract.
Nine of the 19 individuals had a pension plan. There were eight people still at DRS who were
enrolled in the SRP plan.
In his
complaint, Majeske alleged age discrimination and disparate treatment in the
form of the failure to increase his wages and termination of his
employment. His wrongful termination
cause of action was based on age discrimination.
The court
indicated in its ruling for directed verdict that there was no evidence of a
disparate impact on employees over 40 years old from the transfer policy and no
evidence that the average age of the employees changed materially after the
layoff. Then after the court stated it
granted the motion, Majeske’s attorney asked, “The motion as to which part
because there w[ere] two parts to this motion for nonsuit? There was disparate impact and disparate
treatment.†The court responded. “It is
the treatment. This is over with.â€
“‘Disparate
treatment’ is intentional
discrimination against one or more persons on prohibited grounds. [Citations.]
Prohibited discrimination may also be found on a theory of ‘disparate
impact,’ i.e. that regardless of motive, a facially
neutral employer practice or policy, bearing no manifest relationship to
job requirements, in fact had a
disproportionate adverse effect on members of the protected class.†(Guz v.
Bechtel National Inc., supra, 24 Cal.4th 317, 354, fn. 20; italics in
original.)
Majeske did
not prove a disproportionate effect of the layoff on older workers. Not all members of the group who were laid
off were over 40 or SRP participants. (
Cal.App.4th 1313, 1326.) There was no
impact on the average age of the company and no evidence that only older
workers were laid off. All he was able
to show was that he and Tortorella, both over 40 and both SRP participants,
were laid off. This is not enough
evidence of disparate impact.
As far as
his theory of disparate treatment, he did not show any intentional
discrimination. Mandel and Viviano were
able to show numerous reasons for his layoff; his performance reviews, the lack
of available work, the loss of the FCS contract, and his direct realization
scores. In addition, the statistical
evidence did not support any claim of intentional discrimination against older
employees. There was evidence that the
employees who were retained had unique skills and no evidence that the
employees who were not laid off were only those younger than 40. The evidence that Majeske presented of
animosity by Viviano was evidence of concern of costs over the retirement plan
and not about his age.
3. Discovery of metadata
Prior to
the order granting summary adjudication, Majeske sought discovery of computer
data on his performance reviews. He
contends that this “metadata†would show that he had not received his
performance reviews through DRS’ online review process. The trial court denied the motion.
A motion to
compel discovery is reviewed for abuse of discretion. (Costco
Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733.) When the facts asserted by the parties
conflict, the trial court’s factual findings will be upheld if they are
supported by substantial evidence. (
However,
even assuming that Majeske did not see his below average or negative reviews,
he could not prove his case. It was not
disputed that DRS lost an important contract prior to Majeske’s termination,
and Majeske acknowledged that he was responsible for the loss of the Crosshairs
program and that Viviano did not like him.
Any evidence of whether he saw his performance reviews would have been
cumulative.
4. Denial of motion to amend
At the
close of evidence, Majeske moved to amend his complaint to add retaliation as a
basis for wrongful termination in his second cause of action, and to add a
cause of action for intentional interfere with prospective economic
advantage. The trial court denied the
motion.
On appeal,
he contends that evidence to support those amendments had already been
presented at trial and thus there was no prejudice to respondents.
Code of
Civil Procedure section 473, subdivision (a)(1) gives the court discretion to
allow a party to amend a pleading in furtherance of justice.
Respondents
contend that Majeske waited too long before making his motion to amend and had
no good cause for the delay since he filed his complaint on December 30, 2009,
and did not move to amend until July 26, 2011, after trial had essentially
ended. In addition, respondents contend
that the motion did not seek to allege any new facts, which Majeske himself
admitted. Finally, respondents contends
that the cause of action for retaliation was time-barred and meritless. Government Code section 12965 required him to
commence his civil action on a FEHA-based claim within one year after his right
to sue notice was issued by the DFEH. No
protected activity under FEHA was alleged.
We review a
denial of a motion to amend for abuse of discretion. (Leader
v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 612.) Although a court is allowed great liberality
in permitting amendments (Atkinson v. Elk
(2003) 109 Cal.App.4th 739, 761), the trial court must consider a number of
factors, including the timing of the presentation of the amendment. (Id.
at p. 613.) Unwarranted delay in
presenting an otherwise valid amendment may justify a denial of a motion for
leave to amend. (P & D Consultants, Inc v. City of Carlsbad (2011) 190
Cal.App.4th 1332, 1345 – amendment sought after trial readiness
conference.) Majeske did not allege any
new facts which would justify the delay in bringing the motion. The trial court did not abuse its discretion
in denying the motion to amend.
The
judgment (order granting summary judgment and order directing verdict) in favor
of respondents is affirmed. Respondents
shall recover costs on appeal.
WOODS,
J.
We concur:
PERLUSS, P. J.
ZELON, J.
[1] Majeske did not appeal the ruling on
the breach of implied covenant of good faith and fair dealing.
[2] Majeske uses the term “metadata†to
describe information describing the history or tracking of an electronic
document. He sought to obtain
information about how and when his online performance reviews were accessed.
