SettlementOne
Filed 7/5/13 Drimmel v.
SettlementOne CA4/1
NOT TO BE PUBLISHED
IN OFFICIAL REPORTS
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and parties from citing or relying on opinions not certified for publication or
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
SYLVIE
DRIMMEL ,
Cross-complainant and Appellant,
v.
SETTLEMENTONE
CREDIT CORP.,
Cross-defendant and Respondent.
D060144
(Super. Ct. No. 37-2007-00073917-CU-BT-CTL)
APPEAL
from a judgment of the Superior Court
of
County, Joel M. Pressman, Judge. Affirmed.
Bleiler
& Bond, Diane E. Bond; Simpson & Moore and Sean Simpson for
Cross-complainant and Appellant.
The
Cabrera Firm and Guillermo Cabrera for Cross-defendant and Respondent.
In this
employment discrimination case, an employee was promoted from her position as
the operations manager of one portion of her employer's title, escrow and
credit information business to vice-president of a new and separate marketing entity
her employer established. Following her
promotion, a male who was younger than the employee took over her position as
operations manager. The new marketing
entity did not do well and, according to the employer, the employee did not perform
well in her new position. The employee
was terminated, and the new entity was discontinued.
The trial
court rejected the employee's contention that in losing her position as
operations manager the employee was the victim of unlawful discrimination. The trial court found that the employee's promotion
to vice-president of the marketing entity was not an adverse employment action
and that her later termination from that position was based on the employee's performance
as well as financial and economic circumstances. The record fully supports the trial court's
finding on these issues. Thus, we affirm
the trial court's judgment in favor of the employer.
FACTUAL AND PROCEDUAL
BACKGROUND
1. Employment
In July 2005, cross-complainant and appellant
Sylvie Drimmel began working for cross-defendant and respondent SettlementOne
Credit Corporation (erroneously sued in the cross-complaint as Settlement One
Title Company; hereafter SettlementOne) as its director of operations. Drimmel was initially paid a salary of
$85,000 a year and oversaw SettlementOne's day-to-day operations.
In early
2006, SettlementOne's chief executive officer, Jevin Sackett, began considering
establishing a multi-level marketing program for SettlementOne's title, escrow
and credit products. Because Drimmel had
experience with multi-level marketing, Sackett discussed the idea with her and
looked to Drimmel to lead a new program which would recruit and train other
people to sell SettlementOne's products and place its products in already
existing businesses.
In
November 2006, Drimmel began performing tasks needed to launch the marketing
program, including developing a draft business plan. The draft business plan Drimmel prepared set
a recruiting goal for January 2007 of three affiliates, or individuals selling
SettlementOne product lines, and one dealer, or existing business, which would
add the SettlementOne product line to its portfolio of products; for February,
the draft plan called for recruiting three additional affiliates and one
dealer; for March, the plan set a goal of five additional affiliates and one
more dealer.
In
January 2007, Drimmel was formally offered and accepted a position as vice-president
of corporate development at SettlementOne.
Drimmel received a 10 percent raise when she was promoted to the new
position, bringing her salary to $100,000; significantly, her promotion made
her responsible for the new marketing endeavor.
SettlementOne replaced Drimmel as director of operations with another
employee who was a man and was younger than 40 years old.
Drimmel
did not perform well in the new position.
According to Sackett, it appeared to him that rather than focusing on
recruiting affiliates and dealers, Drimmel was still functioning as the operations
manager and doing many tasks which, in Sackett's view, should have been
performed by subordinates or other employees with particular expertise. According to Sackett, by February of 2007,
Drimmel had not placed advertisements on any online media and had not recruited
any affiliates or dealers. Eventually,
Drimmel was able to recruit, from existing business relationships with
SettlementOne, three affiliates.
According
to Sackett, because of Drimmel's poor performance and because of the then
deteriorating real estate and mortgage market, in the middle of February 2007, he
decided to terminate Drimmel and discontinue the marketing program. Drimmel's employment ended on March 22, 2007.
2. Litigation
This
lawsuit was initiated by SettlementOne, which filed a complaint against Drimmel
alleging causes of action for intentional interference with contractual
relations, intentional interference with prospective economic advantage, and
unfair business practices. By way of a
cross-complaint, Drimmel alleged multiple causes of action, including age and
sex discrimination claims.
Prior to
trial, SettlementOne dismissed its claims against Drimmel. Also prior to trial, the trial court granted
summary adjudication in SettlementOne's favor on all of Drimmel's claims except
for her allegations of age and sex discrimination.
At trial,
Drimmel argued that her promotion to vice-president of corporate development
was merely a ruse by which SettlementOne could replace her as director of operations
with a younger male employee. The trial
court rejected this theory and found that her promotion was bona fide and that
she was terminated for nondiscriminatory reasons. Thus, the trial court found Drimmel was not
the victim of age or sex discrimination.
After the trial court filed its statement of
decision, Drimmel moved for a new trial, filed objections to the statement of
decision and asked the trial court to make more specific findings. The trial court did not alter its findings
and instead entered judgment in favor of SettlementOne. Drimmel filed a timely notice of appeal.
DISCUSSION
I
Drimmel argues at some length that the trial court's
statement of decision was inadequate and that the trial court erred in failing
to make further, more specific findings after she objected to its proposed
statement of decision. We find no error.
Code of Civil Procedure sections 632 and 634 require
no more than that a statement of decision fairly disclose "determinations
as to the ultimate facts and material issues in the case. [Citation.]" (Central
Valley General Hospital v. Smith (2008) 162 Cal.App.4th 501, 513.) "When this rule is applied, the term 'ultimate
fact' generally refers to a core fact, such as an essential element of a claim. [Citation.]
Ultimate facts are distinguished from evidentiary facts and from legal
conclusions. [Citations.]" (Ibid.;
see also Yield Dynamics, Inc. v. TEA
Systems Corp. (2007) 154 Cal.App.4th 547, 559 (Yield Dynamics) [ultimate fact is fact "without which the
claim or defense must fail"].) Here,
by way of its statement of decision, the trial court determined that Drimmel's
promotion was not an adverse employment action and that SettlementOne had
nondiscriminatory reasons for terminating her employment as vice-president of corporate
development. These determinations, which
as we explain are supported by substantial evidence, are sufficient to defeat
Drimmel's discrimination claims. Thus,
the statement of decision more than adequately discloses the trial court's
resolution of ultimate facts and thereby meets the requirements of Code of
Civil Procedure sections 632 and 634.
Accordingly, we reject Drimmel's nominal argument that the statement of
decision was defective and that the trial court erred in failing to respond to
her objections to it.
In this regard, in reviewing Drimmel's contentions
with respect to the statement of decision, we note that none are directed to
any failure by the trial court to fulfill its obligations under Code of Civil
Procedure sections 632 and 634 but instead are disagreements with respect to
the merits of the trial court's resolution of contested legal and factual
issues. Given these circumstances, although
we find no formal defect in the statement of decision, we will nonetheless
address the substantive merit of each of the issues Drimmel raises in the guise
of an attack on the adequacy of the statement of decision.
II
Before reaching the substantive
merits of Drimmel's arguments, the principles governing our review of the trial
court's decision deserve attention: "First,
the trial court's judgment is presumptively correct, such that error must be
affirmatively demonstrated, and where the record is silent the reviewing court
will indulge all reasonable inferences in support of the judgment. [Citations.]
This means that an appellant must do more than assert error and leave it
to the appellate court to search the record and the law books to test his
claim. The appellant must present an
adequate argument including citations to supporting authorities and to relevant
portions of the record.
[Citations.] Of course this also
means that during trial, the parties must ensure that an adequate record is
made of errors by which they are or may be aggrieved; ordinarily, errors not
reflected in the trial record will not, and indeed cannot, sustain a reversal
on appeal. [Citations.]
"Second, findings must be sustained if they
are supported by substantial evidence, even though the evidence could also have
justified contrary findings.
[Citation.] When combined with
the foregoing principle this means that an appellant who challenges a factual
determination in the trial court—a jury verdict, or a finding by the judge in a
nonjury trial—must marshal all of the
record evidence relevant to the point in question and affirmatively demonstrate
its insufficiency to sustain the challenged finding. [Citation.]
"Third, even if error is demonstrated it will
rarely warrant reversal unless it appears 'reasonably probable that a result
more favorable to the appealing party would have been reached in the absence of
the error.' [Citations.] This means the appellant must show not only
that error occurred but that it is likely to have affected the outcome." (Yield
Dynamics, supra, 154 Cal.App.4th at
pp. 556-557.)
III
In her
first and principal argument on appeal, Drimmel challenges the trial court's finding
that in offering Drimmel the position of vice-president of corporate development,
with a pay raise, SettlementOne was in fact offering Drimmel a bona fide
promotion. In making this finding, the
trial court rejected Drimmel's contention the new position was an adverse
employment action designed to replace her as director of operations with a
younger male employee.
The trial court's finding that the new position
was a bona fide promotion is fully supported by the record. We note the record includes Sackett's
testimony that creation of the multi-level marketing entity was a good-faith
effort to expand SettlementOne's business, evidence Sackett and Drimmel
expended considerable effort in developing a draft business plan and evidence Drimmel
got a raise in salary with the new position.
Importantly, the record also shows Drimmel herself looked at the new
position as an opportunity to advance her career. In an email Drimmel sent to Sackett in
response to his initial offer to her, and in which she asked for a higher
salary, she stated in part: "I am
excited about this opportunity and look forward to taking this endeavor to new
heights. Based upon our meetings, I am
convinced that this is the right direction for SettlementOne and I feel
confident I will make a significant contribution to the growth and
profitability of the company."
We also
note Sackett's testimony with respect to the real estate market, which began a
precipitous decline in early 2007. The
trial court could reasonably conclude that the changing market conditions
explained in large part Sackett's rapid change of heart with respect to the new
marketing project.
Although the relatively short period of time
Sackett gave Drimmel and the new marketing entity an opportunity to succeed,
taken together with the absence of a formal budget for the endeavor, might
support a contrary factual determination, given the other evidence which
suggests that the new entity and Drimmel's promotion were bona fide, we are in
no position on appeal to reject the trial court's resolution of the conflicting
evidence. In this regard, the record
here is in sharp contrast to the summary judgment the court considered in
upon which Drimmel relies in attacking the trial court's finding that her
promotion was bona fide.
In
had established a prima facie case of age discrimination by showing that in
addition to (1) disparaging remarks about his age which had been made by both
subordinates and executives to whom the plaintiff reported, (2) an email
exchange which made a specific reference to the plaintiff's mature age, (3) an
email which made reference to "getting [the plaintiff] out," (4) statistical
evidence of discrimination, and (5) changing rationales for the plaintiff's
termination, the plaintiff had also shown that before he was terminated he had
been demoted to a nonviable position in his employer's company. (Reid,
evidence, the trial court erred in granting the employer's motion for summary
judgment. (Ibid.)
Nothing
in Reid stands for the proposition
that any promotion or transfer, which is thereafter followed by a termination,
is suspect or that a fact finder may not, as the trial court did here, examine
the particular circumstances under which a promotion was made and either accept
or reject the plaintiff's characterization of it. Unlike the summary judgment being reviewed in
Reid, here, the trial court found on
substantial evidence that Drimmel's promotion was bona fide and, as we have
noted, we are in no position to disturb that factual determination.
In a
related argument, Drimmel contends the evidence shows that in her new position
she was given an unattainable goal and thus set up for failure in a larger
scheme to terminate her because of her age and sex. (See Willnerd
v. First Nat. Nebraska, Inc. (8th Cir. 2009) 558 F.3d 770, 779;
1998) 161 F.3d 491, 495.) The difficulty
with this argument is that prior to commencing her new job, Drimmel helped
develop the business plan which set forth the goals of the program and
thereafter was not able to meet those goals.
Drimmel's active participation in setting the goals for the multi-level marketing
project undermines her contention that as a matter of law she was set up for
failure.
IV
Next,
Drimmel challenges the trial court's finding that she did not establish a prima
facie case of discrimination. Again, we find no error.
A plaintiff in a wrongful termination case establishes
a prima facie case of discrimination by showing (1) he or she was a member of a
protected class, (2) he or she was competently performing her job, (3) he or she
suffered an adverse employment action, and (4) some other circumstance suggests
discriminatory motive. (See
Because the record shows that her promotion to vice-president
of corporate development was bona fide, Drimmel may not rely upon the promotion
to establish either the requisite adverse employment action or any
discriminatory motive. A bona fide
promotion, such as the one the trial court found, is not only not adverse, but
it will not support any logical inference of an unlawful motive on the part of
a defendant.
Drimmel of course did suffer an undeniably adverse
action when she was later terminated from her job as vice-president of corporate
development. The difficulty which then
arises for Drimmel is showing some circumstance that suggests her termination was
motivated by discriminatory animus.
As the trial court noted, an inference of
discriminatory animus arises and a prima facie case is established if a
terminated employee is replaced by someone not in a protected class; here,
someone who is either younger and a male or both. (See Schoonmaker
v. Spartan Graphics Leasing, LLC (6th Cir. 2010) 595 F.3d 261, 267.) Because the marketing program was
discontinued and no one replaced Drimmel as vice-president of corporate development,
she cannot establish any discriminatory motive in that manner.
Drimmel is then left with the fact SettlementOne
chose not to displace the person who took her former position as director of operations. She argues she presented evidence she was
more qualified than her replacement, and SettlementOne still needed a director
of operations. We cannot accept the
proposition that, by itself, SetttlementOne's unwillingness to terminate or
demote Drimmel's replacement gives rise to any inference of discriminatory
animus. If Drimmel had successfully
shown that her promotion was not bona fide, this argument might be
persuasive. In that hypothetical
situation, in which the record showed that the promotion was only a pretext for
SettlementOne's plan to replace her with a younger male, a reasonable inference
of discriminatory intent would arise.
However, as we have discussed, the record here supports the trial court's
finding that Drimmel's promotion and initial replacement as director of operations
with a younger male was bona fide and lawful.
The fact the decision to promote the replacement was lawful and
nondiscriminatory undermines any inference the later decision to retain him was
somehow colored by discriminatory intent.
Also
undermining any inference of discriminatory intent in SettlementOne's decision
to retain Drimmel's replacement is the fact Drimmel was initially hired and
promoted by Jevin Sackett. "'[W]here
the same actor is responsible for both the hiring and the firing of a
discrimination plaintiff, and both actions occur within a short period of time,
a strong inference arises that there was no discriminatory motive.'" (Nazir
v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 272 (
Drimmel also relies on two alternative theories to
establish discriminatory intent. Neither
is persuasive:
Drimmel contends she demonstrated discriminatory
animus by showing that the reasons SettlementOne offered for her termination
were false. Although discriminatory
intent may be inferred when an employer offers false justification for an
adverse employment action (see Reeves v.
Sanderson Plumbing Products, Inc. (2000) 530 U.S. 133, 143, 148), here the
trial court found, on substantial evidence, that the reasons offered by
SettlementOne—Drimmel's poor performance in the new position and the
deteriorating real estate market—were its actual reasons for terminating her
employment. The fact Drimmel did not
meet her initial recruitment goals and the actual later collapse of the real
estate market in 2008 support a finding that performance issues and legitimate economic
fears in fact caused Sackett to terminate the program and Drimmel. Importantly, as the trial court noted: "'It
is the employer's honest belief in the stated reasons for firing an employee
and not the objective truth or falsity of the underlying facts that is at
issue[.]'" (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 436.)
Drimmel also
argues the trial court should have inferred discriminatory intent from evidence
she presented from other employees about what they perceived as Sackett's
preference for younger employees in general and younger attractive women in
particular. The trial court expressly
rejected the notion that this evidence undermined the reasons offered by
SettlementOne for Drimmel's discharge.
The trial court's unwillingness to draw a connection between what the
other employees believed about Sackett and the circumstances surrounding Drimmel's
actual discharge is, in turn, supported by the fact Sackett hired and promoted
Drimmel. (See Nazir, supra, 178
Cal.App.4th at p. 272.) In short, the
trial court was more persuaded by Sackett's actual hiring and promotion of Drimmel
than by any biases perceived by other employees. On appeal, we are in no position to disturb
this resolution of a factual issue.
V
Drimmel
also argues the trial court erred in permitting SettlementOne to offer evidence
of the number of employees it laid off in 2007 and their age and gender. SettlementOne offered the evidence to
demonstrate that in 2007 its business was rapidly shrinking and layoffs were
necessary and that it did not discriminate on the basis of age or gender. Drimmel objected to the evidence on the
grounds that it was not disclosed during discovery.
We find
no abuse of discretion in the trial court's admission of the statistical
evidence. In his deposition, Sackett
testified that as the mortgage crisis was developing, SettlementOne took a
number of cost cutting measures, including laying off a number of workers. Although in her discovery request Drimmel asked
SettlementOne to set forth all the information which supported its affirmative
defense that her termination was justified by nondiscriminatory reasons, the
record does not show that Drimmel ever asked for any statistics as to the
number, gender and sex of those terminated.
Given Drimmel's opportunity to propound discovery which directly addressed
the information provided by Sackett at his deposition, and her failure to do
so, the trial court did not abuse its discretion in admitting the statistical
evidence offered by SettlementOne, which was subject to thorough
cross-examination at trial.
DISPOSITION
The
judgment is affirmed. SettlementOne to
recover its costs of appeal.
BENKE, Acting P. J.
WE CONCUR:
NARES,
J.
McINTYRE,
J.
name="_ftn1" title="">[1] Although Drimmel spends a good deal of effort criticizing
the so-called "same actor" doctrine where, as here, it is treated as
a factual inference to be weighed along with other evidence rather than as a
mandatory presumption, it is appropriate.
(See Nazir,
