Winston v. Countrywide Financial
Filed 3/11/13 Winston v. Countrywide Financial 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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
MICHAEL WINSTON,
Plaintiff and Respondent,
v.
COUNTRYWIDE FINANCIAL
CORPORATION et al.,
Defendants and Appellants.
B232823
(Los Angeles
County
Super. Ct.
No. LC085895)
ORDER MODIFYING OPINION
AND DENYING REHEARING
(NO CHANGE IN JUDGMENT)
THE COURT:
It is
ordered that the opinion filed herein on February 19, 2013 be modified
as follows:
1. At the top of page 6, the sentence
beginning “Dick Sambol, Countrywide’s then-president,†delete the name “Dickâ€
and replace it with “David†so that the sentence reads:
David Sambol,
Countrywide’s then-president, asked Winston to report directly to him on the
project (because Moody’s “can shut us downâ€).
2. On page 16, all of footnote 14,
beginning “Winston’s reliance on Donchinâ€
is deleted and the following footnote is inserted in its place:
14 Winston’s reliance on our decision in
34 Cal.App.4th 1832 is misplaced.
In Donchin, a premises
liability action, the plaintiff alleged a landlord had actual knowledge of the
vicious nature of a tenant’s dogs and was responsible for her injuries after
the dogs had attacked her. (
the tenant had dogs, a statement he later admitted was false. (Id.
at p. 1835.) In a sworn declaration
submitted in support of his motion for summary judgment, he stated he knew
about the dogs but lacked any knowledge of their violent propensities.
summary judgment in favor of the landlord, explaining, first, a jury reasonably
could infer from the landlord’s earlier false exculpatory statement denying
knowledge of the dogs’ existence that his later statement denying knowledge of
their violent propensities was likewise false (
at pp. 1840-1843); and second, “[t]he inference [the landlord’s] denial of
knowledge should be disbelieved is bolstered further by some of the affirmative
evidence [plaintiff] offered suggesting the landlord indeed possessed, or must
have possessed, knowledge about the rottweilers’ propensities.†(Id.
at p. 1843.) Based on the entire record
before the trial court on the summary judgment motion—that is, both a reasonable
basis for disbelieving the landlord’s testimony and affirmative evidence that
he must have known the dogs were vicious—we concluded the evidence would
support a jury verdict in favor of the plaintiff and, therefore, granting
summary judgment was improper. (Id.
at p. 1845.)
Nothing
in Donchin’s holding or analysis
supports Winston’s argument the jury here was entitled to infer Goren had
disparaged Winston to Fishel simply because it disbelieved Fishel’s
testimony. Moreover, unlike the landlord
in Donchin, Fishel never recanted his
testimony or made a demonstrably false exculpatory statement that could justify
a secondary inference his stated reasons for not hiring Winston were
pretextual. Absent conclusive evidence of
such a falsehood, the inference he gave pretextual reasons for the decision not
to hire Winston was unduly speculative and does not constitute substantial
evidence in support of the jury’s verdict.
(See Donchin v. Guerrero, supra,
34 Cal.App.4th at p. 1839.)
There is no
change in the judgment. Respondent’s
petition for rehearing is denied.
____________________________________________________________________
PERLUSS, P. J. WOODS, J. JACKSON, J.
Filed
2/19/13 Winston v. Countrywide
Financial CA2/7 (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
MICHAEL WINSTON,
Plaintiff and Respondent,
v.
COUNTRYWIDE FINANCIAL
CORPORATION et al.,
Defendants and Appellants.
B232823
(Los Angeles
County
Super. Ct.
No. LC085895)
APPEAL from
a judgment of the Superior Court
of Los Angeles County,
Bert Glennon, Jr., Judge. Reversed.
Davis
Wright Tremaine, Henry J. Tashman, John P. LeCrone and Camilo Echavarria for
Defendants and Appellants Countrywide Financial Corporation and Bank of America
Corporation.
The Mathews Law Group, Charles T.
Mathews; Pine & Pine, Norman Pine, Beverly Tillett Pine and Janet R.
Gusdorff for Plaintiff and Respondent.
_________________________________
>
Michael Winston, a human
resources executive with nearly 30 years of experience in his field, sued
Countrywide Financial Corporation, his former employer, and its successor, Bank of America Corporation, for wrongful termination and fraud after Bank
of America acquired Countrywide in 2008 and declined to offer him continued
employment. Winston alleged Countrywide had disparaged him to
the Bank of America executive charged with determining which Countrywide human
resources employees should be offered new positions with Bank of America in retaliation for actions he took in 2006. A jury agreed Winston had
been wrongfully terminated and awarded him more than $3 million for lost
wages. The trial court denied Countrywide and Bank of America’s motion for judgment notwithstanding the verdict.
We reverse. Although a jury verdict is entitled to broad
deference, Winston’s evidence was insufficient to establish Bank of America
declined to offer him a job based on impermissible motives.
factual and procedural background
1.
The Evidence at Trial
a.
Winston’s hiring by
Countrywide
Winston, who had previously
worked at several Fortune 500 companies including Lockheed Martin, McDonnell Douglas, Motorola and Merrill Lynch,
was hired by Countrywide’s director of human resources, Leora Goren, in April 2005 to assist Countrywide in
executive leadership development and succession planning. Countrywide had experienced rapid growth in
the previous decade, and Goren advised Winston the company needed to develop
more robust leadership systems to support that growth. Winston relocated from northern California
based on Countrywide’s bright future, in part as portrayed by Goren.
Winston performed well at
Countrywide and was promoted by Goren during the next year.
launched an executive leadership development program aimed at “the top brass of
the company.†Angelo Mozilo, chairman of the board and chief executive officer of
Countrywide, attended the first of the planned six-part program modules and
complimented Winston on the event, indicating the program was exactly what
Countrywide needed. A national human
resources publication recognized the new program implemented by Winston as the
15th best in the nation among companies with more than 2,000 employees.
On July 17, 2006 Goren
announced a restructuring of the human resources division that transferred
responsibility for non-executive employee training to Josh Klarin, a newly
hired human resources executive.
employees reporting directly to Winston was reduced, he remained in charge of
executive leadership development and was named a managing director of the
company with the title of enterprise chief leadership officer.
b.
Winston experiences
retaliation by Goren and other Countrywide executives
According
to Winston, the first incident that led to a pattern
of retaliation against him occurred on July 26, 2006, shortly after Goren’s
announcement of the restructuring. The
building housing Winston’s team was undergoing renovation; and, in Winston’s
words, “I first heard a sound like a low humming sound . . . and before I even
could look up, I felt like vapor droplets hitting my head. . . . [Immediately] I felt
unbelievably dizzy, unbelievably nauseated, pounding headache, shortness of
breath. . . . I [saw] pinkish,
orange droplets coming down.†Winston’s assistant,
who was with him in his office, testified she saw “a fog†and felt like her lungs
had been “seared.†Approximately 10
other employees reported discomfort or burning in their lungs, a metallic taste
in their
mouths
and headaches. The effects were
limited to the area near Winston’s office.
Winston reported the incident
to Countrywide’s safety office, which initiated an investigation. As part of the safety manager’s response to
the incident, company nurses contacted employees in the affected area and
offered medical assistance if needed.
Testing performed throughout the building, however, failed to identify
the source of the discharge.
name="_ftnref3" title="">[3]
Immediately after the event
Winston contacted Goren, who was out of the office on vacation, and thereafter
made “daily†efforts to get Countrywide “to do something about it.†Expecting Goren’s appreciation for his diligent
response, Winston was surprised when she appeared angry at him upon her
return. When he questioned her decision
to announce to employees that testing had shown no danger, she acknowledged the
testing had not yet been completed but told him she was trying to prevent panic
among employees.
name="_ftnref4" title="">[4] After the testing had been
completed, Winston continued to advocate for further answers and asked the
company to report the incident to the California Division of Occupational
Safety and Health (Cal-OSHA). On August 7, 2006, having
heard no response to his request, he personally reported the incident to
Cal-OSHA.
title="">[5]
Winston testified that,
immediately following his complaint to
Cal-OSHA, many of his programs were cancelled or put
on hold.
title="">[6] In his words, he
experienced “death by a thousand cuts†in a retaliation campaign he attributed
to Goren. Two employees in his group
noted the hostile atmosphere and also identified Goren as the source. Several weeks after the incident, while
Winston was away on a business trip, Klarin, to whom several of Winston’s
reporting employees had been transferred, held a meeting in Winston’s office
with the remaining members of Winston’s staff and told them Winston would not
be returning and all executive leadership programs had been placed on
hold. Upon Winston’s return Goren would
not answer questions about the meeting, but Winston was not terminated.
At Winston’s request he met
with Goren on September 13, 2006 to discuss his position at Countrywide. He informed Goren he believed he was being
retaliated against through the removal of his responsibilities and employees
because of his report to Cal-OSHA and advised her he had consulted with an attorney. Goren referred his complaint to Countrywide’s
legal department and requested an investigation.
Winston testified the
retaliation against him personally increased in December 2006 as a result of
his work in response to an audit by Moody’s Investors Services, Inc. (Moody’s),
a rating agency that evaluates the quality of securities issued by a
company. Among other consequences, a
poor rating by Moody’s can dramatically affect the availability and cost to a
company of operating capital, a critical component of Countrywide’s business as
a lender. In particular, Moody’s
requested information relating to the strength of Countrywide’s succession
planning, an area of review prompted by the sudden departure in May 2005 of
Countrywide’s president and chief operating officer Stan Kurland (who had been Mozilo’s anticipated successor) and the company’s delay of several
months in replacing him. Goren asked
Winston to prepare a response to Moody’s on this question. To assist him in preparing a competent
response, Winston asked Goren for information about Countrywide’s previous
succession plans, but Goren did not provide it. Dick
Sambol, Countrywide’s then-president, asked Winston to report directly to him on the project
(because Moody’s “can shut us downâ€).
When Winston’s report offered no explanation for the gap between
Kurland’s departure and Sambol’s appointment, Sambol asked Winston to
“cooperate†on the proposed explanation to Moody’s to, as Winston believed, obscure the
actual length of time the position had been unfilled. Winston replied, “I think I understand what
you want me to do . . . . I am not your guy.â€
According to Winston, the
consequences were swift and harsh. In an
email dated January 24, 2007 (about six
weeks after the conversation) Mozilo wrote to Goren
and Sambol demanding Winston’s immediate termination.
Mozilo complained about Winston’s “motivations and overall attitude and
demeanor,†citing Winston’s personal website advertising himself as a
motivator, entertainer and networker:
“He cannot serve two masters.â€
Goren objected to Mozilo’s directive, stating it would not be in the
company’s best interest and praised Winston as “an extremely talented, albeit
eccentric, individual†and “an expert in the Leadership field.†She suggested any negative comments about
Winston had come from the outside consultant who had previously performed
Winston’s functions for Countrywide and disputed the notion his speaking
activities were incompatible with his work for the company. Sambol joined in this recommendation and told
Mozilo they would “continue monitoring his performance and periodically revisit
the issue.†Mozilo reluctantly accepted
this recommendation but noted “[e]ccentric people are by definition not team
players†and Winston could be replaced by someone who was “talented†but also
“proud to be on our team rather than feel superior to the team.â€
Notwithstanding the
retaliation against Winston personally, his team rolled out the second and
third modules of the executive leadership development program in September and
December 2006 and the third, fourth and fifth modules in the spring and summer
of 2007. One of the key members of
Winston’s team testified support within the company’s leadership for the
executive development initiatives actually improved during 2007. The team also developed a new model for
succession planning within executive leadership. Based largely on Winston’s initiatives,
Countrywide’s executive development program was named eighth best in the
nation in 2007 by the same industry publication, having improved from the
previous year’s showing of 15th. Winston
testified, however, his team continued to be dismantled, and Sambol refused to
acknowledge him. He was also forced to
relocate his office seven times and was not invited to critical executive
meetings.
c.
Bank of America decides to
acquire Countrywide but declines to offer Winston a post-acquisition position
By the fall of 2007, the
mortgage industry was imploding. The sixth and final module
of the executive leadership program, which had been scheduled for fall 2007,
was cancelled when Countrywide’s business plummeted and the company announced
yet another round of cutbacks and layoffs.
America, which had invested $2 billion in Countrywide in August 2007, announced plans to acquire
Countrywide. By that time, Winston was
managing only two employees.
As part of Bank of America’s
acquisition of Countrywide, it initiated a transition process to evaluate which programs and personnel to
retain. Each Countrywide employee was directed to
complete a talent profile recounting the employee’s work history, education and
skills. Although a form was completed
for Winston, he testified he never saw it and noted errors he said he never would have made.
considered for employment at Bank of America, was also asked to evaluate the
strengths and weaknesses of the employees who reported directly to her,
including Winston, whom she supposedly ranked last. No witness was able to authenticate the
document containing this ranking, however; and it was not admitted at trial.
Brian Fishel, senior vice president of enterprise executive development for Bank
of America, was assigned the task of evaluating Countrywide’s leadership and performance management group
(headed by Winston) and its training group (headed by Klarin) for employment by Bank of
America. Fishel, who had seen Winston’s
talent profile but had not seen or been informed of Goren’s rankings,
interviewed members of the two groups, including Winston, in June 2008. Before the interviews began, Fishel met with
Goren for 15 to 20 minutes. Fishel acknowledged he had
spoken with Goren about Winston and Klarin but denied she had said anything
negative about Winston or mentioned either of the two events Winston claimed
led to retaliation against him.
he had no knowledge of the July 2006 chemical release in Winston’s office or Winston’s
subsequent complaint to Cal-OSHA or that Countrywide had been required to
respond to Moody’s in December 2006. According
to Fishel, he alone made the decision not to offer Winston a position at Bank
of America.
In fact, of the 14 employees
interviewed, Fishel chose to hire only three lower-level employees. None of the six managing directors who
reported to Goren was offered a position with Bank of America, including Winston and Klarin. Explaining his decision not to hire Winston,
Fishel testified his own position at Bank of America
was equivalent to Winston’s at Countrywide and the bank was not looking to replace or modify its existing executive
development programs, its succession plans or other human resources functions
within Winston’s areas of expertise. Moreover,
Winston’s base salary at Countrywide in 2007 exceeded that of Fishel’s. Fishel also testified he found Winston to be
arrogant during the interview and did not believe he would fit well with Bank
of America’s corporate culture.
Winston’s account of the
interview differed markedly. According to
Winston, Fishel first tried to get Winston to divulge the secrets of his
success. Within minutes, however, Fishel
told Winston, “I know how it feels to be acquired and not have a job after
that. . . . Don’t worry. You’ll bounce back.†Winston testified he was astonished Fishel
failed to identify any possible positions he might be able to fill at Bank of
America.
Winston received his official
notice of severance, conditioned on finalization of Countrywide’s acquisition by Bank
of America, on June 30, 2008. The letter
advised, “If the merger is not consummated, this notice will have no
effect.†The acquisition was concluded
in July 2008, and Winston received a severance package valued at
$877,086.23. Although Winston testified
he had made “Herculean†efforts to find another job following his termination, he was unable to do so.
2.
The Jury’s Verdict and
Posttrial Motions
The jury rejected Winston’s
claims of fraud in his hiring but found he had been wrongfully terminated. It awarded $3,828,166 in past and future economic damages, but nothing for past
and future emotional distress. The jury
also rejected Winston’s request for punitive damages. Judgment was entered on February 24,
2011.
Countrywide and Bank of
America moved for judgment notwithstanding the verdict based on Winston’s
failure to establish Bank of America’s decision not to hire him was based on an
improper, retaliatory motive. Without answering this contention explicitly,
the trial court denied the motion, reasoning the jury had shown careful
consideration of the factual issues in its verdicts and had before it ample
evidence on a variety of subjects relating to the decision not to hire
Winston.
discussion
1.
Governing Law and Standard of
Review
The cause of action for
wrongful termination in violation of public policy is an exception to the
general rule that an employer has an unfettered right to terminate an at-will
employee: Although an employer has the
right to terminate at-will employees for any or no reason, even an arbitrary or
irrational reason, the employer does not have the right to terminate an
employee in violation of a substantial and fundamental public policy. (Guz v. Bechtel National Inc. (2000)
24 Cal.4th 317, 335; see also Stevenson v. Superior Court (1997) 16
Cal.4th 880, 889-890; Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167,
169-170.) To support a claim for
wrongful termination in violation of public policy, the policy allegedly
violated must be articulated, at the time of the discharge, in a constitutional
or statutory provision. (Stevenson,
at pp. 889-890; see Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66,
76.)
To prevail on a cause of
action for wrongful termination resulting from retaliation, whether under the
Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) or other statutory
authority, a plaintiff must show (1) he or she engaged in protected activity; (2) the employer
discharged the employee; and (3) a causal link existed between the protected activity and the
discharge—for instance, the employer harbored a retaliatory motive against the employee
that led to the discharge. (See
Cal.4th 1028, 1042; Soukup v. Law Offices
of Herbert Hafif (2006) 39 Cal.4th 260, 287-288; Guthrey
v. State of California (1998) 63 Cal.App.4th 1108, 1125.)
“‘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 an
inference derived from circumstantial evidence, ‘such as the employer’s knowledge that the
[employee] engaged in protected activities and the proximity in time between
the protected action and allegedly retaliatory employment decision.’†[Citation.]’ [Citation.] ‘Essential to a causal link is evidence that
the employer was aware that the plaintiff had engaged in the protected
activity.’†(Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52,
69-70.)
Proof of intentional
discrimination or retaliation often depends on circumstantial evidence because
it consists of “subjective matters only the employer can directly know, i.e.,
his attitude toward the plaintiff and his reasons for taking a particular
adverse action.†(Mamou v. Trendwest Resorts, Inc.
(2008) 165 Cal.App.4th 686, 713 (Mamou); accord, Joaquin v. City of Los Angeles (2012) 202 Cal.App.4th 1207, 1219 (
explains, “Given the resulting difficulties of proof, the courts have
fashioned a special presumption shifting the burden of production—but not
persuasion—to the employer upon a prescribed showing by the plaintiff. Specifically, ‘the employee “may raise a
presumption of discrimination
by presenting a ‘prima facie case,’ the components of which vary with the
nature of the claim, but typically require evidence that ‘(1) [the plaintiff]
was a member of a protected class [or engaged in a protected activity], (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 [or retaliatory] motive. [Citations.]’ A
satisfactory showing to this effect gives rise to a presumption of
discrimination which, if unanswered by the employer, is mandatory—it requires
judgment for the plaintiff.â€â€™â€ (
pp. 713-714; see also Morgan v. Regents
of University of California, supra, 88 Cal.App.4th at p. 68.)
Once the
employee makes the required showing, to avoid an
adverse judgment the employer must then produce evidence to rebut the
presumption of discrimination or retaliation: “Once an employee establishes a prima facie
case [of retaliation], the employer is required to offer a legitimate,
nonretaliatory reason for the adverse employment action. [Citation.]
If the employer produces a legitimate reason for the adverse employment
action, the presumption of retaliation ‘“‘drops out of the picture,’â€â€™ and the burden
shifts back to the employee to prove intentional retaliation.†(Yanowitz v. L’Oreal USA, Inc., supra, 36 Cal.4th at p. 1042; accord, Joaquin,
supra, 202 Cal.App.4th at p. 1220; McRae
v. Dept. of Corrections and Rehabilitation (2006) 142 Cal.App.4th 377,
388-389 (McRae).) “‘The ultimate question is whether the employer intentionally
discriminated, and proof that “the employer’s proffered reason is unpersuasive, or even obviously
contrived, does not necessarily establish that the plaintiff’s proffered reason
. . . is
correct.’ [Citation.] In other words, “[i]t is not enough . . . to disbelieve
the employer; the factfinder must believe the plaintiff’s explanation of
intentional discrimination.†[Citation.]’†(Frank
v. County of Los Angeles
(2007) 149 Cal.App.4th 805, 824, quoting Reeves v. Sanderson Plumbing Products, Inc.
(2000) 530 U.S. 133, 146-147 [120 S.Ct. 2097, 147 L.Ed.2d 105].) “The central issue is and should remain
whether the evidence as a whole supports a reasoned inference that the
challenged action was the product of discriminatory or retaliatory animus.â€
p. 1226, fn. 5.)
The jury found Bank of
America’s 2008 decision not to hire Winston, which resulted in his termination
by Countrywide, was motivated by retaliation for his June 2006 complaint to
Cal-OSHA and his December 2006 refusal to make any misleading statements in the report to
Moody’s.
title="">[11] The sole issue in this
appeal is whether the jury’s verdict was supported by substantial
evidence. Defendants contend Bank of
America had legitimate reasons not to offer employment to Winston and these
reasons were not pretextual. Indeed, Countrywide and Bank of America argue Winston failed to prove Bank of America even knew of the
2006 episodes he claims motivated its decision not to hire him.
Countrywide
and Bank of America bear a heavy burden in this
court: “[T]he reviewing court must start
with the presumption that the record contains evidence sufficient to support
the judgment; it is appellant’s burden to demonstrate otherwise.†(Baxter Healthcare Corp. v. Denton
(2004) 120 Cal.App.4th 333, 368.)
“‘Actions for unlawful discrimination and retaliation are inherently
fact-driven, and we recognize that it is the jury, and not the appellate court,
that is charged with the obligation of determining the facts. Nonetheless, the jury’s verdict stands only
if it is supported by substantial evidence.
“In determining whether a judgment is supported by substantial evidence,
we may not confine our consideration to isolated bits of evidence, but must
view the whole record in a
light most favorable to the judgment, resolving all evidentiary conflicts and
drawing all reasonable inferences in favor of the decision of the trial
court. [Citation.] We may not substitute our view of the correct
findings for those of the trial court [or jury]; rather, we must accept any reasonable
interpretation of the evidence which supports the [factfinder’s] decision. However, we may not defer to that decision
entirely. ‘[I]f the word “substantial†means anything at all, it
clearly implies that such evidence must be of
legal significance. Obviously the word
cannot be deemed synonymous with “any†evidence. It must be reasonable in nature, credible,
and of solid value; it must actually be “substantial†proof of the essentials
which the law requires in a particular case.’â€
(Joaquin, supra, 202 Cal.App.4th at
pp. 1218-1219, quoting Beck Development
Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th
1160, 1203, 1204; accord, McRae, supra,
142 Cal.App.4th
at pp. 389-390.)
judgment may be supported by inference, but the inference must be a reasonable
conclusion from the evidence and cannot be based upon suspicion, imagination,
speculation, surmise, conjecture or guesswork.
[Citation.] Thus, an inference
cannot stand if it is unreasonable when viewed in light of the whole
record. [Citation.] And although an appellate court will normally
defer to the trier of fact’s drawing of inferences, it has been said: ‘To these well settled rules there is a
common sense limited exception which is aimed at preventing the trier of the
facts from running away with the case.
This limited exception is that the trier of the facts may not indulge in
the inference when that inference is rebutted by clear, positive and
uncontradicted evidence of such a nature that it is not subject to doubt in the
minds of reasonable men. The trier of
the facts may not believe impossibilities.’â€â€™â€
(Joaquin, supra, 202 Cal.App.4th at
p. 1219; accord, McRae, supra, 142 Cal.App.4th at p. 390;
149 Cal.App.4th at pp. 816-817.)
2.
There Was Insufficient
Evidence for the Required Showing Bank of America’s Decision Not To Hire
Winston Was Based on an Impermissible Retaliatory Motive
The linchpin of Winston’s
claim was the assertion Bank of America knew about his protected activity in
reporting a safety violation to Cal-OSHA and in refusing Sambol’s request he
alter the Moody’s report to misrepresent the timing of Sambol’s appointment as
Countrywide’s president. There is no
evidence, either documentary or testimonial, linking Bank of America’s decision
not to hire Winston to either of these events.
The decision not to hire
Winston was made on behalf of Bank of America by Fishel. That Fishel’s stated reasons for not hiring
Winston were legitimate and non-retaliatory is indisputable. According to Fishel, Bank of America had no
open position for an executive employee with Winston’s expertise because Fishel
himself held the equivalent
position at Bank of America. No evidence contradicts this testimony by Fishel. Winston’s attempt to discredit Fishel’s testimony
with a 2007 job announcement he claims demonstrated Bank of America had recruited him
possibly to replace Fishel and his assertion his skills and experience exceeded
Fishel’s are irrelevant. Fishel was Bank
of America’s leadership development executive, and Bank of America was not
required to displace him to make room for Winston.
Further, the fact Winston’s salary at Countrywide exceeded Fishel’s Bank
of America salary corroborates Fishel’s conclusion the bank’s interests would
not be served by hiring Winston.
Finally, albeit subjective in nature and thus possibly insufficient
standing alone to constitute a legitimate, non-retaliatory reason for an
adverse job action, Fishel’s impression that Winston was personally arrogant—a
perception that comported with the testimony of other Countrywide employees—is
a permissible reason for an employer not to hire a prospective employee.
To counter the facial
legitimacy of Fishel’s stated reasons, Winston asserts Fishel’s decision not to
offer him a position resulted from Goren’s negative attitude about Winston,
which she conveyed either during the meeting she had with Fishel shortly before
their interview or
through a memorandum she allegedly prepared ranking Winston last of her
directly reporting employees.
Goren made any negative comments about Winston during that meeting and testified he never
spoke with any other Countrywide executive about Winston, including Mozilo, who
had left Countrywide several months earlier in February 2008. Fishel, in fact, denied any knowledge of the
2006 events Winston claims formed the basis of the retaliation against him, and
Winston has not presented any evidence to the contrary.
Absent evidence Goren’s
perceived antipathy toward him was actually communicated in some manner to
Fishel, Winston may not infer it must have occurred from the mere opportunity
afforded by Goren’s meeting with Fishel.
Winston argues the jury clearly disbelieved Fishel, the only person who
was questioned about the conversation.
Disbelief of this testimony, however, does not constitute affirmative
evidence of the contrary proposition. (See California Shoppers, Inc. v. Royal
Globe Ins. Co. (1985) 175 Cal.App.3d 1, 48 [“[i]f a witness testifies, for
instance, that it was not raining at the time of the collision, and if
the jury disbelieves that testimony, such disbelief does not provide evidence
that it was raining at the time of the collisionâ€]; Hicks v. Reis
(1943) 21 Cal.2d 654, 660 [if the finder of fact refuses to give credence to a
witness’s testimony, the testimony “‘is of no more effect than if it had not
been given. It disappears from the case
. . .’â€].) As Judge
that the carriage, behavior, bearing, manner and appearance of a witness—in
short, his ‘demeanor’—is part of the evidence.
The words used are by no means all that we rely on in making up our
minds about the truth of a question that arises in our ordinary affairs, and it
is abundantly settled that a jury is as little confined to them as we are. . . . [fn.
omitted.]
[S]uch evidence may satisfy the tribunal, not only that the witness’
testimony is not true, but that the truth is the opposite of his story; for the
denial of one, who has a motive to deny, may be uttered with such hesitation,
discomfort, arrogance or defiance, as to give assurance that he is fabricating,
and that, if
the truth of what he denies. [¶] Nevertheless, although it is therefore true
that in strict theory a party having the affirmative might succeed in
convincing a jury of the truth of his allegations in spite of the fact that all
the witnesses denied them, we think it plain that such a verdict would
nevertheless have to be directed against him.
This is owing to the fact that otherwise in such cases there could not
be an effective appeal. . . . He, who has seen and heard
the ‘demeanor’ evidence, may have been right or wrong in thinking that it gave
rational support to a verdict; yet, since that evidence has disappeared, it
will be impossible for an appellate court to say which he was.†(Dyer v. MacDougall (2d Cir. 1952) 201 F.2d
265, 267-268 (Hand., L., J.); accord,
Viner v. Sweet (2004) 117 Cal.App.4th 1218, 1229-1230.)
Winston alternatively argues
we should apply what is known as the “cat’s paw†doctrine, which recognizes the
improper motive of a non-decisionmaker may be imputed to the decisionmaker in
certain circumstances. (See, e.g., Staub
v. Proctor Hospital (2011) ___ U.S. ___ (Mar.
1, 2011, No. 09-400) [131 S.Ct. 1186, 179 L.Ed.2d
144].) In Staub the United States Supreme Court held the plaintiff had proven
employment discrimination on the “cat’s paw†theory by producing evidence that
his supervisors’ actions “were motivated by hostility toward [his] military obligationsâ€
and “were causal factors underlying [the] decision to fire [him].†(Id. at p. 1194; see also Poland
v. Chertoff (9th Cir. 2007) 494 F.3d 1174, 1182 [“if a subordinate, in response to a plaintiff’s
protected activity, sets in motion a proceeding by an independent decisionmaker
that leads to an adverse employment action, the subordinate’s bias is imputed
to the employer if the plaintiff can prove that the allegedly independent
adverse employment decision was not actually independent because the biased
subordinate influenced or was involved in the decision or decisionmaking
processâ€].) Unlike Poland, however, Winston has failed to show how Goren affected
Fishel’s decision either directly or indirectly. Bank of America’s acquisition of Countrywide,
and its ensuing selection of some, but by no means all, Countrywide employees
for retention, cannot be traced to Goren’s antipathy toward Winston.
Instead, this case is similar
to the Ninth Circuit’s decision in Cafasso
v. General Dynamics C4 Systems, Inc.
(9th Cir. 2011) 637 F.3d 1047, in which the court rejected the
plaintiff’s “cats paw†theory. As the
court explained, the employer justified its termination of the plaintiff as
part of a corporate reorganization unrelated to her protected inquiries; and
the official who terminated the plaintiff testified he did not know about her
inquiries when he made the reorganization decision. (Id. at p. 1060.) The plaintiff failed to
produce any contrary evidence and admitted in
had no reason
to disbelieve his
account. (
the employer, the plaintiff would have had to show “that
decisionmaker’s] subordinates, in
plaintiff’s] protected activity,
‘set[] in motion’
eliminate [her] department
and job, and
‘influenced or was
involved in the
decision or decisionmaking
process.’†(Id. at p. 1061.) Because the plaintiff failed to “
specific facts†this chain of
events in fact occurred, the court concluded a finding of liability would
require “undue speculation.†(Ibid.)
The instant case is markedly similar to the situation in Cafasso. Bank of America’s acquisition of Countrywide
did not revolve around Winston or his colleagues in the human resources
division. Bank of America (in a move it
certainly came to regret) acquired Countrywide for its loan portfolio, not its
subsidiary support functions. Bank of
America was a far larger company with substantial existing institutional
systems to support its operations.
Within the small realm of Winston’s and Klarin’s groups, only three
lower-level employees were hired by Bank of America to integrate into those
existing systems. Moreover, Winston was
hardly the only executive at his level not to be hired by Bank of America; to
the contrary, Bank of America retained none of the top executives in Winston’s
chain of command and none of the managing directors who reported to Goren. Winston has not shown that the history of
retaliation he experienced formed the basis for Bank of America’s decision not
to hire him.
In short, having scoured the record for evidence supporting the jury’s
verdict on the issue of causation, we have found none. It follows that the
trial court erred in denying defendants’ motion for judgment notwithstanding
the verdict. (See, e.g., Hauter v.
Zogarts (1975) 14 Cal.3d 104, 110 [“‘A motion for judgment notwithstanding
the verdict of a jury may properly be granted only if it appears from the
evidence, viewed in the light most favorable to the party securing the verdict,
that there is no substantial evidence
to support the verdict. If there is any
substantial evidence, or reasonable inferences to be drawn therefrom, in
support of the verdict, the motion should be denied.’â€]; Henrioulle v. Marin
Ventures, Inc. (1978) 20 Cal.3d 512, 515 [appellate court in reviewing
trial court’s grant or denial of a motion for judgment notwithstanding the
verdict uses same standard of review as employed by the trial court in deciding
the motion].)
name="_ftnref15" title="">[15]
disposition
The judgment is reversed. Countrywide
and Bank of America are to recover their costs on
appeal.
PERLUSS,
P. J.
We
concur:
WOODS, J.
JACKSON, J.
these promotions, Goren identified several weaknesses in Winston’s performance
in his December 2005 annual review.
According to Goren, “Michael is exceptionally articulate and thoroughly
knowledgeable in his field.†“There are
occasions when he could be more concise in his communications and it is
imperative that he be more judicious in sharing certain thoughts with and
making certain comments in front of more junior employees in his
organization. Additionally,
. . . Michael occasionally responds emotionally when faced with
challenges. A calmer reaction is
generally more effective.â€
and memoranda between Winston and members of his team demonstrate the
restructuring spawned a turf war between Klarin’s and Winston’s groups as
duties and reporting lines shifted.
Winston’s own notes reveal significant frustration over his perception
his work was not properly appreciated or compensated.
