Filed 11/19/18 Bedini v. Live Nation Entertainment CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Plaintiff Deborah Bedini appeals from a summary judgment granted in favor of her former employer, defendant and respondent Live Nation Entertainment Inc. (Live Nation) on her age discrimination claim under the Fair Employment and Housing Act (FEHA) (Govt. Code, § 12900 et seq.). She contends summary judgment should not have been granted because there was a triable issue of fact as to whether her “demotion” and ultimate termination were the product of age discrimination. She also argues the trial court erred in considering a “reply separate statement.” We affirm.

I. FACTS AND PROCEDURAL HISTORY

On February 26, 2015, after obtaining a right-to-sue letter from the Department of Fair Employment and Housing, plaintiff filed a complaint against Live Nation alleging age discrimination under FEHA. On June 30, 2016, Live Nation moved for summary judgment against Bedini, presenting the following as evidence:

The Fillmore is a concert venue in San Francisco now owned by defendant Live Nation, which is the world’s largest operator of concert facilities and also owns and operates The Masonic, another concert venue in San Francisco. Plaintiff (born in 1967) began working as a security guard at The Fillmore in 1994 and was promoted to security supervisor in 1999. She worked predominantly at The Fillmore but worked a couple of times each month at The Masonic. While plaintiff worked for Live Nation, no one made age-related comments to her.

As a security supervisor, plaintiff’s responsibilities included the hiring and training of security guards. She coordinated with the General Manager or Operations Manager to determine how many guards to schedule and interfaced with those guards, holding pre-event meetings, monitoring their work, and re-positioning them in various venue locations as needed. She was also responsible for “cutting” security guards—sending them home during shows—when they were no longer needed. Plaintiff did the scheduling of security personnel on and off as part of her duties, but did not consider it a demotion when scheduling was turned over to Chrissi Reubens in 2011 for a couple of years. Tony Biancala, who is in his mid-50’s, also worked as a security supervisor for The Fillmore and a third person, also in his 40’s, filled in as needed.

Security supervisors at The Fillmore reported to General Manager Amie Bailey-Knobler, who reported to Divisional Chief Operating Officer Matthew Prieshoff. Both Bailey-Knobler and Prieshoff were in their 40’s at the times relevant to this case. In 2013, Prieshoff had a serious discussion with Bailey-Knobler about The Fillmore’s poor financial performance and its high “operations-per-head” cost relative to other Live Nation venues. Other General Managers from Live Nation venues were flown in for an assessment, and they reported, among other things, that staffing levels were too high. Additionally, although they were supposed to be part-time, many security guards were being scheduled to work more than 1,560 hours annually, which triggered an entitlement to benefits and cost increases.

Prieshoff placed Bailey-Knobler on a performance improvement plan. He was critical to Bailey-Knobler of staffing decisions made by plaintiff, although he did not have any direct conversations on this subject with plaintiff. He was also critical of plaintiff receiving benefits, because a security position, even a supervisor, is a part-time position.

As part of the solution to the overstaffing problem, Prieshoff and Bailey-Knobler discussed creating a new position, an Event Staffing Manager (ESM). Prieshoff told Bailey-Knobler that “staffing levels needed to change, and that [they] needed a fresh look” at how they staffed The Fillmore. Prieshoff wanted a “fresh set of eyes” on the building because “The Fillmore is an iconic building that has been around for years, which means that many employees have been there for a long period of time. [¶] Frequently with any of our venues that exist over a long period of time, people get sedate in the way they look at the venue. [¶] ‘We’ve always done things this way,’ is the most frequent answer, if asked the question, ‘Why do we do things this way?’ That’s an unacceptable business answer. The [correct] answer is, ‘This is the best way to do things,’ or ‘This is the most efficient way to do things,’ not ‘This is the way we’ve always done things.’ [¶] So, we’re always looking for a fresh set of eyes as to ‘How do we staff? How can we be more efficient? How can we provide better customer service to our–our fans?” Bailey-Knobler testified at her deposition that the purpose of having an ESM was to save money by having someone who watched everyone’s hours. The ESM would ultimately work at The Masonic as well, which was closed for renovations in 2014.

In May 2013, a job posting for an ESM for The Fillmore was placed on Live Nation’s website, where it was publicly available. The ESM was to have broad staffing responsibility at both The Fillmore and The Masonic and would schedule all personnel at both venues. The ESM would also “track incident reports, employee sick days, injuries and employee discipline issues,” “[w]ork with venue managers and event staff supervisors to interview, hire and train event staff,” “update employee files,” maintain “workman’s comp paperwork,” and “[o]versee supplies needed for event staff departments daily operations.” The qualifications of the new ESM position included three years of supervisory experience, being California Guard-Carded, excellent writing skills, proficiency with MS Office, with payroll experience being a plus. Security experience was not required.

Bailey-Knobler told plaintiff about the new position and said the new ESM would do all employee scheduling. She invited plaintiff to apply if she wanted more regular hours. Plaintiff did not read the job posting and did not apply for it because she was happy doing the job she was doing. When it was clear plaintiff would not apply to be ESM, Bailey-Knobler asked her to encourage the manager of another venue (over age 40) to do so. When he was not interested, plaintiff spoke to Raymond Gonzalez (then age 34), an outdoor security supervisor who worked for The Fillmore and was returning soon from disability leave. Plaintiff understood that whomever was hired would take over her scheduling duties.

Bailey-Knobler identified three top candidates for ESM, including Gonzalez and Rachel Menter (then age 24) who had worked for the Atlanta Symphony Orchestra and the Verizon Amphitheater in a supervisory capacity. A close business associate of Prieshoff’s recommended Menter for the job. Prieshoff interviewed Menter and testified in his deposition that she was “[c]ertainly eager, certainly motivated, certainly ready to work, ready to take on another challenge in the entertainment business. [¶] [I] saw a lot of––of me in her, somebody that was—that started at a young age, was gaining experience as she went, that was very motivated, that was very organized. [¶] She seemed to have what I refer to as a ‘high motor[.]’ ”

Bailey-Knobler felt that Menter was a “really good candidate” but was concerned her lack of security experience and youth would undermine her credibility with the other security guards. Prieshoff disagreed that Menter’s lack of security experience would be problematic, as he was hiring her for more than security purposes. He believed hiring Menter as ESM would improve both The Fillmore and The Masonic by introducing “fresh blood who will play by the new rules rather than ‘the way we have always done things’ ” mindset. Hiring Menter for both venues would also “kill two birds with one stone” because it would eliminate the need to replace security supervisor John Consentino at The Masonic, who had recently left.

Menter was hired by Live Nation on October 17, 2013 when plaintiff was 46. Additionally, security supervisor Biancala was being promoted to a new position, so another security supervisor was needed at The Fillmore. Prieshoff hired Gonzalez into Biancala’s vacated position when he hired Menter. Plaintiff’s hourly pay was reduced from $21.73 to $17.00, the pay rate for all Live Nation security supervisors, because she was not responsible for staffing any longer. Gonzalez was also paid $17.00 per hour. Bailey-Knobler informed plaintiff of her pay reduction and told her no security supervisor at Live Nation makes more than $17.00 an hour.

Menter started work in mid-October 2013 and was paid $20.00 an hour. Scheduling was turned over to her, and she was empowered to make changes that improved the guest experience and the bottom line. Her duties at Live Nation spanned between both The Fillmore and The Masonic and included the managing and scheduling of all event staff, serving as the front of the house manager, preparing cost reports and financial analyses, and editing payroll.

Plaintiff’s hours were reduced once Menter was hired. Menter trained with plaintiff, shadowing her during several shows. Menter tried to change the manner in which security guards had historically been positioned, but was met with resistance from plaintiff, who according to Menter, acted out and encouraged other staff members to disregard Menter’s authority. Plaintiff would refuse to come to meetings or storm around, slamming doors on at least one occasion, and would not go to the security positions requested by Menter. Sometimes, plaintiff would move people around behind Menter’s back. When an all-staff meeting was called, plaintiff was dismissive of Menter. If Menter missed something, plaintiff would not help out but would instead let the staff know. Plaintiff refused to do anything supervisory in protest of Menter’s management.[1]

Bailey-Knobler and Menter reported their concerns about plaintiff’s behavior toward Menter to Prieshoff and to Live Nation’s Regional Human Resources Manager Thela Thatch, who was then in her 40’s. Bailey-Knobler verbally counseled plaintiff about her unprofessional behavior. Menter noted the issues she had with plaintiff in the computer, including (1) On January 3, 2014, plaintiff was told another employee would be working the late shift and she “stormed off and slammed [three] doors;” (2) On February 14, 2014, plaintiff was assigned to work the ADA position and switched without permission from the manager (Menter); and (3) On March 1, 2014, plaintiff came in late and said she wasn’t working her assigned position (outside on Steiner Street) because she was not prepared.

Thatch emailed Prieshoff in March 2014, wondering if it was time to proceed with “eliminat[ing] [plaintiff]’s role.” In April 2014, Prieshoff emailed Menter to ask how plaintiff had been lately and what the notes in the system reflected. Menter described the incidents noted above and added other examples of plaintiff’s bad attitude. Prieshoff and Thatch decided to terminate plaintiff. In Thatch’s view, her behaviors were bad enough to warrant a termination rather than a performance improvement plan and Prieshoff agreed. Bailey-Knobler met with plaintiff on June 13, 2014, to tell her she was being terminated.

Since Spring of 2015, the two security supervisors at The Fillmore have been Ray Gonzalez and Lori Glumac, age 42, who worked there previously. Of the 243 people employed by The Fillmore, 135 are over age 40 and 63 of those over 40 were hired before 2013.

II. DISCUSSION

A. Standard of Review

“The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) As such, the summary judgment statute, Code of Civil Procedure section 437c, “provides a particularly suitable means to test the sufficiency of the plaintiff’s prima facie case and/or of the defendant’s [defense].” (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203.)

The moving party “bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar, supra, 25 Cal.4th at p. 850, fn. omitted.) A defendant moving for summary judgment must
“ ‘show[ ] that one or more elements of the cause of action . . . cannot be established’ by the plaintiff.” (Id. at p. 853, quoting Code Civ. Proc., § 437c, subd. (o)(2).) A defendant meets its burden by presenting affirmative evidence that negates an essential element of the plaintiff’s claim. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 (Guz).) Alternatively, a defendant meets its burden by submitting evidence “that the plaintiff does not possess, and cannot reasonably obtain, needed evidence” supporting an essential element of its claim. (Aguilar, at p. 855; see also Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 780.)

Because summary judgment motions involve pure questions of law, we review the record de novo. (Guz, supra, 24 Cal.4th at p. 334.)

B. Age Discrimination and Summary Judgment

Here, appellant’s complaint asserted only one cause of action for age discrimination under FEHA. In resolving such claims in summary judgment motions, California has adopted the three-stage burden shifting test set forth in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802 (McDonnell Douglas). (See Guz, supra, 24 Cal.4th at p. 354.) Under the McDonnell Douglas test, the plaintiff employee has the initial burden of establishing a prima facie case. (Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 715 (Mamou).) Once the plaintiff meets this threshold, the burden shifts to the defendant employer to rebut the presumption of discrimination by producing evidence of a legitimate, nondiscriminatory reason for the termination. If the defendant meets its burden, the burden shifts back to the plaintiff to establish “whether the evidence as a whole supports a reasoned inference that the challenged action was the product of discriminatory [] animus.” (Mamou, supra, 165 Cal.App.4th at p. 715.)

An employer may move for summary judgment against a discrimination cause of action with evidence of a legitimate, nondiscriminatory reason for the adverse employment action. (Guz, supra, 24 Cal.4th 317, 357.) A legitimate, nondiscriminatory reason is one that is unrelated to prohibited bias and that, if true, would preclude a finding of discrimination. (Id. at p. 358.) The employer’s evidence must be sufficient to allow the trier of fact to conclude that it is more likely than not that one or more legitimate, nondiscriminatory reasons were the sole basis for the adverse employment action. (Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th 1088, 1097–1098.)

By presenting such evidence, the employer shifts the burden to the plaintiff to present evidence that the employer’s decision was motivated at least in part by prohibited discrimination. (Guz, supra, 24 Cal.4th at pp. 353, 357.) The plaintiff’s evidence must be sufficient to support a reasonable inference that discrimination was a substantial motivating factor in the decision. (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232; Guz, at p. 353.) The stronger the employer’s showing of a legitimate, nondiscriminatory reason, the stronger the plaintiff’s evidence must be in order to create a reasonable inference of a discriminatory motive. (Guz, at p. 362 & fn. 25.)

Although an employee’s evidence submitted in opposition to an employer’s motion for summary judgment is construed liberally, it “remains subject to careful scrutiny.” (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433.) The employee’s “subjective beliefs in an employment discrimination case do not create a genuine issue of fact; nor do uncorroborated and self-serving declarations.” (Ibid.) The employee’s evidence “must relate to the motivation of the decision makers [and] prove, by nonspeculative evidence, an actual causal link between prohibited motivation and termination.” (Id. at pp. 433–434.)

To show that an employer’s reason for termination is pretextual, an employee “ ‘cannot simply show that the employer’s decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent or competent.’ ” (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1005 (Hersant).) To meet his or her burden, the employee “ ‘must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them “unworthy of credence,” ’ ” and hence infer “ ‘that the employer did not act for [the asserted] non-discriminatory reasons.’ ” (Ibid.) “[T]he ultimate issue is simply whether the employer acted with a motive to discriminate illegally. Thus, ‘legitimate’ reasons [citation] in this context are reasons that are facially unrelated to prohibited bias, and which, if true, would thus preclude a finding of discrimination.” (Guz, supra, 24 Cal.4th at p. 358, italics omitted.)

Where the case has been decided on summary judgment, “ ‘ “[i]f the employer presents admissible evidence either that one or more of plaintiff’s prima facie elements is lacking, or that the adverse employment action was based on legitimate, nondiscriminatory factors, the employer will be entitled to summary judgment unless the plaintiff produces admissible evidence which raises a triable issue of fact material to the defendant’s showing.” ’ ” (Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 344, italics omitted.)

C. Analysis

To establish a prima facie case of age discrimination under FEHA, plaintiff was required to present evidence that (1) an adverse employment action was taken against her, (2) at the time of the adverse actions she was 40 years of age or older, (3) at the time of the adverse action she was satisfactorily performing her job, and (4) the circumstances of the adverse employment action give rise to an inference of age discrimination, such as the plaintiff’s being replaced in her position by a significantly younger person. (Hersant, supra, 57 Cal.App.4th at p. 1003.) Appellant presented evidence that she was 47 years old at the time her employment ended on June 13, 2014, and had more than 20 years experience in security, thus proving prongs (1) through (3) as is necessary for a prima facie case. But assuming the fourth prong was also met, and the circumstances support an inference of age discrimination necessary for a prima facie case, we conclude that inference was effectively rebutted by Live Nation.

Once plaintiff met her burden to establish a prima facie case of age discrimination, the burden shifted to Live Nation to offer evidence justifying the adverse employment action on a basis other than age. Live Nation did so by presenting evidence that the decision to change plaintiff’s duties was economic, and the decision to terminate plaintiff was based on her attitude and insubordination. (See Wills v. Superior Court (2011) 195 Cal.App.4th 143, 171–174 [summary judgment proper in employer’s favor in discrimination case where employee was terminated based on threatening and unprofessional conduct].) These reasons were nondiscriminatory and the burden thus shifted back to plaintiff to meet her “ultimate obligation of proving that the reason for the adverse action was age discrimination.” (Hersant, supra, 57 Cal.App.4th at p. 1003.) In order to meet this burden and to avoid summary judgment, “an employee claiming discrimination must offer substantial evidence that the employer’s stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or some combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination.” (Id. at pp. 1004–1005.)

Plaintiff produced no evidence that Live Nation’s stated nondiscriminatory reasons for reducing her pay rate, hiring an ESM or terminating her employment was false. She argues that an inference can be drawn that its reasons were pretextual, because: (1) Rachel Menter was only 24 when she was hired and Ray Gonzalez was only 34 when promoted; (2) Prieshoff made several comments about needing a “fresh set of eyes,” or “fresh blood” at The Fillmore and Live Nation advertised for persons who were energetic, liked concerts and wanted flexible summer hours, which is code for “youth;” (3) the incidents cited by Live Nation in support of its argument that it fired plaintiff for insubordination did not really occur. Plaintiff contends she produced evidence sufficient to raise a triable issue of fact on this stage of the McDonnell Douglas inquiry. We reject appellant’s contentions.

Although Menter was only 24 years old when she was hired by Live Nation, the evidence shows she did not replace plaintiff. Rather, she assumed a role that plaintiff did not apply for, despite being invited to do so, that encompassed some scheduling duties previously held by plaintiff. Menter additionally had duties which plaintiff had never performed. As to Gonzalez, he was not given a new position, but replaced a security supervisor (the same job held by plaintiff) after being recommended for ESM by plaintiff. Plaintiff did take a reduction in salary given that her staffing duties were assigned to Menter, but this “demotion” brought her in line with the amount paid to others performing her security role. She kept her position for several months after Menter was hired and Gonzalez was promoted, and was not fired until she was reported to be insubordinate to Menter on several occasions.

Plaintiff denied being insubordinate to Menter, but submitted nothing other than her own flat denial of the incidents and conclusory statements. (See Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 816 [employee’s subjective personal judgments of own competence does not alone raise genuine issue of triable fact].) With one incident, that where she refused to take the position on Steiner Street, she attempted to recast it as a misunderstanding. But in any event, regardless of whether plaintiff was in fact insubordinate, she presented no evidence that Prieshoff and Thatch, the decision-makers in this case, did not honestly believe she was insubordinate when they decided to fire her.

Plaintiff points to a few stray remarks made by Prieshoff regarding “fresh eyes” and “fresh blood,” but the fresh eyes and blood he was seeking could just as easily have been age 50 as age 25. What he was concerned with when he participated in creating the ESM position was an entrenchment among existing employees in the old way of doing things. Whether this was wise as a matter of policy—there is often a tension between innovation and experience—plaintiff has not shown this motive to be discriminatory. And clearly, firing someone for insubordination was not discriminatory.[2]

The question is, could a reasonable trier of fact conclude the reason for reducing plaintiff’s salary and then firing her were discriminatory? (Hersant, supra, 57 Cal.App.4th 1004–1005.) Having failed to produce any “substantial” or “specific” evidence of age discrimination, plaintiff cannot avoid summary judgment. (See Martin v. Lockheed Missiles & Space Co., (1994) 29 Cal.App.4th 1718, 1735.) In so concluding, we acknowledge, as plaintiff notes, that discrimination claims can and in some cases must, be proved by circumstantial evidence. But in this case, even the proffered circumstantial evidence fell short.

D. Reply Papers

Plaintiff makes a procedural argument that the trial court prejudicially and erroneously considered evidence submitted by Live Nation on reply. Although a party moving for summary judgment ordinarily may not submit new evidence in reply (San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 315–316), the trial court’s consideration of such evidence is not an abuse of discretion when the opposing party had notice and an opportunity to respond to any new material (Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 449). Here, plaintiff was given notice of the additional evidence when she was served with the reply papers, but she responded with objections that did not address the merits rather than filing responsive evidence or a sur-reply. (Ibid.) The trial court did not abuse its discretion to the extent it considered the new evidence. In any event, our review is de novo and we do not find it necessary to consider matters presented only in the reply papers to conclude plaintiff failed to carry her burden of raising a material issue of triable fact as to discrimination.

III. DISPOSITION

The summary judgment in favor of Live Nation is affirmed. Live Nation is entitled to its ordinary costs on appeal.

NEEDHAM, J.

We concur.

JONES, P.J.

BRUINIERS, J.

(A150361)