Kobbervig-Harrell v. Nike

Filed 4/18/07 Kobbervig-Harrell v. Nike CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment of the Superior Court of the County of Los Angeles, Edward Ferns, Judge. Affirmed in part, reversed in part and remanded.

Ross & Morrison, Gary B. Ross and Andrew B. Morrison for Plaintiff and Appellant.

Kirkpatrick & Lockhart Nicholson Graham, Paul W. Sweeney, Jr., Christopher J. Kondon and Myra B. Villamor for Defendants and Respondents.

_____________________

Donna Kobbervig-Harrell, a former sales associate for Nike, Inc., appeals from the judgment entered after the trial court granted summary judgment in favor of Nike and three of its managers in Kobbervig-Harrells action for wrongful termination and related employment claims. Because Nike failed to satisfy its initial burden on summary judgment/summary adjudication concerning Kobbervig-Harrells claim Nike failed to accommodate her pregnancy, we reverse the judgment in favor of Nike as to that cause of action. In all other respects, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Kobbervig-Harrells Sales Position with Nike

Kobbervig-Harrell, an African-American woman, worked for Nike in various sales positions for more than nine years, until her termination in March 2004. In December 2000 she held the title of Nike sales associate for boutiques and urban accounts in San Francisco. Her responsibilities included selling seasonal Nike products, helping accounts manage inventory, meeting with account managers and showing product lines. Throughout her tenure with Nike, Kobbervig-Harrell received written performance reviews indicating she had met, achieved or exceeded Nikes expectations. In a July 2003 written performance review, Erica Bullard, a Nike manager, characterized Kobbervig-Harrells efforts to increase sales volume as phenomenal.

2. Kobbervig-Harrell Moves to Los Angeles and Discloses Her Pregnancy

In September 2003 Kobbervig-Harrell moved from San Francisco to Los Angeles and, with the same job title and duties, began representing some of Nikes Los Angeles accounts. At about the same time Kobbervig-Harrell informed her supervisors she was pregnant and expected to give birth in late January 2004. According to Kobbervig-Harrell, after informing one of her supervisors, Beth Habes, about her pregnancy, Habes (who herself apparently had given birth to three children while working at Nike) began making comments about being pregnant and being a working mother while employed at Nike: Its hard to have a baby and be a rep at Nike. . . . No one wants to hear about any problems or issues you might have due to pregnancy or when you have a baby or any of that. Nike just doesnt want to hear about that; and Being pregnant is great, but dont broadcast youre tired. Work has to go on just the way it was. Nobody wants to hear that your back hurts or your legs hurt or you have doctor appointments.

3. Customer Complaints to Nike about Kobbervig-Harrell

a. The Nort West complaint

On January 22, 2004 Nike received a complaint from Nort West, one of the San Francisco accounts Kobbervig-Harrell had serviced for Nike prior to her move to Los Angeles. Nort West complained several of its orders for Nike product placed while Kobbervig-Harrell acted as its representative had not been shipped in a timely fashion. On January 29, 2004 Kobbervig-Harrell, apparently unaware of the complaint, began her scheduled leave in accordance with Nikes policy that affords an employee up to 12 weeks of leave in connection with the birth of a child.

Nikes senior employee-relations specialist Pam Clemons investigated the complaint during Kobbervig-Harrells absence by speaking to Sara Menuck, Kobbervig-Harrells temporary replacement, and Van McGhee, a Nike customer service employee who was also assisting with Kobbervig-Harrells accounts. Menuck told Nike Kobbervig-Harrell had not alerted her to Nort Wests late order. Clemons did not contact Kobbervig-Harrell to obtain her side of the story because she was on leave. On February 3, 2004, after completing her inquiry, Clemons concluded that Nort West bore some responsibility for the delayed shipment because it had submitted its product orders past deadline and Kobbervig-Harrell was partly responsible because she had failed to alert Menuck to the late order. A written letter of discipline, labeled a written reminder, was placed in Kobbervig-Harrells personnel file.

b. The Proper complaint

On February 26, 2004, while Kobbervig-Harrell remained on parental leave, Nike received a six-page written complaint from Tristan Caruso, owner of a store called Proper, one of the Los Angeles accounts Kobbervig-Harrell had serviced for Nike before her leave. Caruso detailed in his lengthy complaint, which he described as unsolicited, the poor quality of service Kobbervig-Harrell had provided since becoming Propers Nike representative in September 2003. In particular, Caruso accused Kobbervig-Harrell of failing to deliver product as promised, threatening to withhold product when Caruso complained, rarely visiting the store and refusing to increase Propers credit limit, which was increased later by other Nike representatives when Caruso complained to Kobbervig-Harrells superiors. Caruso explained he would not have complained about Kobbervig-Harrell but for the stark contrast between the quality of service Kobbervig-Harrell provided and that offered by Menuck; Caruso specifically requested Nike allow Menuck to remain as Propers representative when Kobbervig-Harrell returned from leave.[1]

4. Nikes Investigation into Accounts Serviced by Kobbervig-Harrell

In the first week of March 2004, following receipt of Propers complaint, Nike initiated an investigation into Kobbervig-Harrells handling of other Nike accounts. Habes, in her position as head of sales, conducted the investigation, contacting seven of Kobbervig-Harrells 25 recent accounts and asking about the quality of service each had received from Nike. Six of the seven accounts reported very serious concerns about Kobbervig-Harrells service. Among the complaints, Kobbervig-Harrell had told clients that store owners had bought her personal gifts (for example, a flat-screen television) and insinuated they would get better service from her if they did the same. Others complained about their difficulty getting Kobbervig-Harrell to return calls, the accuracy of her orders and her refusal to take responsibility for her mistakes. The customers stated they had not previously complained about Kobbervig-Harrell because, based on insinuations from Kobbervig-Harrell, they feared reprisals in the form of deprivation of product.

5. Nikes Termination of Kobbervig-Harrells Employment

After the investigation was completed, Clemons urged, and Nike managers, including Mag Myers, Larry Harper and Habes, agreed, that Kobbervig-Harrells at-will employment should be terminated upon her return to Nike from her leave. On March 15, 2004 Kobbervig-Harrell returned to work from her parental leave. She was notified that same day her employment was terminated, effective immediately.

6. Kobbervig-Harrells Complaint for Discrimination, Harassment and Wrongful Termination

On November 23, 2004 Kobbervig-Harrell filed a sparse, four-page complaint in Los Angeles Superior Court asserting two causes of action against Nike and three of its managers (Bullard, Habes and Pete Ferrer): the first for violation of the Fair Employment and Housing Act (FEHA) (Gov. Code, 12900 et seq.)[2]‑‑ a single, nine-line paragraph alleging Nike and the individual defendants had committed unlawful employment practices by discriminating against, harassing, retaliating against, taking adverse job action against and terminating Kobbervig-Harrell based on her protected characteristics including pregnancy, childbirth, taking statutory leave, gender and/or race and by failing to make all reasonable accommodations and take all reasonable steps to prevent discrimination and harassment;[3]and the second for wrongful termination in violation of public policy. In her general allegations Kobbervig-Harrell averred Nike had summarily terminated her employment based on reasons that were false, distorted, and pretextual and that Nikes actual reasons for terminating her were that she had announced her pregnancy, taken leave and/or other protected characteristics.

7. Nikes Motion for Summary Judgment/Summary Adjudication

On October 7, 2005 Nike, Bullard, Ferrer and Habes jointly moved for summary judgment or, in the alternative, summary adjudication. Citing the complaints from Nort West and Proper and the results of the investigation into Kobbervig-Harrells handling of several other accounts and supplying with their motion both Habess transcribed investigation notes[4]and declarations from several store owners concerning their conversations with Habes and their reports of Kobbervig-Harrells poor performance and unethical conduct, Nike argued it had a legitimate, nondiscriminatory reason for terminating Kobbervig-Harrells employment. As part of the evidentiary support for its motion, Nike also included a declaration from Caruso explaining the basis for the Proper complaint, which had prompted the investigation: According to Caruso, he was so upset about the treatment he received from Kobbervig-Harrell that he felt [he] had no other choice but to send an unsolicited 6-page e-mail to Beth Habes detailing Kobbervig-Harrells conduct. Nike also provided evidence that several employees, including Bullard, had taken parental leave while employed at Nike in accordance with Nikes parental-leave policy.

In her sexual harassment claim Kobbervig-Harrell alleged Ferrer, a fellow employee who became her supervisor only when she moved to Los Angeles, rubbed up against her five or six times during the eight year period they had worked together and had commented on occasion that she looked good or looked hot. In its motion Nike argued the allegations, even if true, did not rise to the level of actionable harassment under FEHA as a matter of law.

Finally, Bullard, Ferrer and Habes argued that, as individuals acting in the scope of their employment, they were not liable for Kobbervig-Harrells discrimination, wrongful termination and retaliation claims as a matter of law.

8. Kobbervig-Harrells Opposition to the Summary Judgment Motion

a. Evidence of pretext

In opposition to the motion for summary judgment, Kobbervig-Harrell argued the Proper complaint and ensuing investigation resulting in her dismissal were actually a pretext for gender (pregnancy) and race discrimination and unlawful retaliation for her utilization of statutorily protected pregnancy leave. As evidence, Kobbervig-Harrell cited the timing of her termination, immediately upon her return to work from her pregnancy leave. She also provided a declaration from McGhee, who asserted Caruso had told her that Menuck had solicited the complaint from him, and stressed Nike human resource employee Amy Clementss comment that the complaint was long but good, suggesting, according to Kobbervig-Harrell, the Proper complaint was a necessary part of the plan to terminate her employment.[5] McGhee also testified it was unusual for Nike to terminate someone without allowing the employee an opportunity to address the allegations against him or her.[6] In addition, according to both Kobbervig-Harrell and McGhee, Propers dissatisfaction with Kobbervig-Harrell (including its inability to increase its credit limit) stemmed from Nike policies that Kobbervig-Harrell was required to follow, not from practices unilaterally implemented by Kobbervig-Harrell. According to McGhee, the investigation appeared to be a set up.

Kobbervig-Harrell also disputed the substance of the complaints, arguing they were untrue. As to the Proper complaint, Kobbervig-Harrell asserted she had tried to increase Propers credit limit. She also included evidence that, just prior to beginning her leave, she had received an e-mail from Caruso telling her, [W]e know you are looking out for us. Caruso explained in his testimony that his e-mail had followed a heated conversation with Kobbervig-Harrell in which she had accused him of going behind her back to obtain Nike product.

Kobbervig-Harrell denied in her declaration she had asked for gifts or insinuated clients would receive better service if they were to give her gifts and stated she had never accepted a gift from a customer. She asserted Nike clients are dependent on Nike product for their livelihoods and thus had a motive to invent the allegations against her to help Nike, even at her expense. She also cited the depositions of Habes and Clemons, both of whom testified that, although some store owners had stated Kobbervig-Harrell asked or implied gifts would be welcome, Nike had not been able to confirm that Kobbervig-Harrell had actually received any gifts from clients.

In addition, on March 9, 2004, the same day Habes had contacted Kobbervig-Harrells accounts as part of her investigation, Clementsinquired of the accounting department whether Kobbervig-Harrell had any outstanding credit balances and admonished the recipient of her written inquiry that the matter was [s]hhhundercover, which, according Kobbervig-Harrell, suggests an ulterior and improper motive for the termination. Clements, on the other hand, testified the remark was merely a reminder to the recipient, who did not work in human resources, to keep personnel information confidential.

b. Harassment

Asserting she had pleaded a claim for sexual harassment (although not specifically designated as such in her complaint), Kobbervig-Harrell cited comments made by Habes as to the difficulty of being pregnant and working as a Nike representative. She also provided her own deposition testimony describing Ferrers comments and the five or six times he rubbed up against her during the eight years they had worked together. Kobbervig-Harrell claimed the conduct was sufficiently severe or pervasive for a fact-finder to find sexual harassment in violation of FEHA. Kobbervig-Harrell acknowledged in her deposition testimony she had never reported her harassment accusations to Nike notwithstanding its anti-harassment policy. She asserted she told Bullard that she preferred not to work with Ferrer upon her move to Los Angeles but admitted she did not provide any reasons for that request.

c. Failure to accommodate her pregnancy

Kobbervig-Harrell also argued that Nike had not addressed in its motion for summary judgment/summary adjudication her claim Nike had failed to accommodate her pregnancy. She submitted evidence she had told Habes in November 2003 she could not work more than eight hours each day because of her pregnancy and indicated she had a note from her physician recommending that work limitation. According to Kobbervig-Harrell, Habes responded that she did not need to see the note; if work required more than eight hours a day, Kobbervig-Harrell was expected to do it. Kobbervig-Harrell did not give Habes or anyone at Nike her physicians note. Instead, she agreed to do what was expected of her, even if it meant working longer than eight hours each day.

9. Nikes Reply

In reply Nike argued Kobbervig-Harrell had not pleaded a failure-to-accommodate claim and thus it had no obligation to address that theory. Alternatively, it argued Kobbervig-Harrell was not disabled by her pregnancy and thus not protected by FEHAs accommodation requirements. As for the discrimination claim, Nike submitted a second declaration from McGhee purporting to explain her original declaration, offered by Kobbervig-Harrell in opposition to Nikes summary judgment motion. McGhee testified in this second declaration she has no idea what Mr. Carusos motivation was for making a complaint, or whether he made the complaint of his own volition or whether somebody asked him to direct any complaint he had about his sales representative to managers at Nike. All I know is that Mr. Caruso told me that he had made a complaint to Nike about Ms. Kobbervig-Harrell. To the extent my prior declaration suggests that I might know why Mr. Caruso decided to make a complaint to Nike managers about Ms. Kobbervig-Harrell, when he did, or what motivated him to do so, that is not correct. I have no knowledge as to why he sent the complaint to Nike managers, or whether he did so on his own or at someones suggestion. McGhee explained set-up was a term used by Kobbervig-Harrells lawyer and was not her own; she did not think Nike set-up Kobbervig-Harrell; and she had no facts that would lead me to believe that Nike terminated Ms. Kobbervig-Harrell because of her race, gender, or pregnancy. Nor do I believe that to be the case.

10. TheParties Objections and Their Failure to Obtain Rulings

Together with its reply, Nike and its managers filed their written objections to much of the testimony offered by Kobbervig-Harrell. Following Nikes reply, Kobbervig-Harrell objected to the new testimony from McGhee on timeliness grounds. The trial court did not rule on any of the objections.[7]

11. Summary Judgment for Nike and Its Managers

The trial court granted summary judgment in favor of Nike, Bullard, Ferrer and Habes, concluding as to the FEHA claims for discrimination and retaliation and the common law claim for wrongful termination in violation of public policy, Nike had proffered a legitimate business reason for Kobbervig-Harrells termination and Kobbervig-Harrell had not put forward substantial responsive evidence Nikes proffered business reason was a pretext for unlawful discrimination or retaliation for using pregnancy leave. The trial court also ruled the alleged harassment was not sufficiently severe or pervasive to be actionable. Finally, the court ruled that managers Bullard, Ferrer and Habes could not be held individually liable as a matter of law for wrongful termination in violation of public policy or discrimination in violation of FEHA.

CONTENTIONS

Kobbervig-Harrell contends triable issues of material fact exist as to whether Nikes proffered business reason for her termination ‑‑ customer dissatisfaction and allegations of unethical conduct ‑‑ was a pretext for illegal race and gender discrimination and retaliation for utilization of her pregnancy leave protected under FEHA. She also contends triable issues of material fact exist as to her sexual harassment claim, and Nikes failure to address her failure-to-accommodate claim precludes disposition of that cause of action on summary judgment.

DISCUSSION

1. Governing Law and Standard of Review

FEHA prohibits an employer from, among other things, using gender or race to discriminate against an employee in connection with hiring, firing or promotions. ( 12940, subd. (a).) Pregnancy discrimination is a form of gender discrimination prohibited by FEHA. (Kelly v. Stamps.Com Inc. (2005) 135 Cal.App.4th 1088, 1097 (Kelly); Badih v. Myers (1995) 36 Cal.App.4th 1289, 1294-1295; see also 12945 [providing statutory accommodation requirement for medical needs of pregnant employees in  12945 is [i]n addition to protections against pregnancy discrimination provided by  12940 and 12926].)

Kobbervig-Harrells claims for gender (pregnancy) and race discrimination under FEHA require proof of discriminatory intent. ( 12940, subd. (a); see Clark v. Claremont University Center (1992) 6 Cal.App.4th 639, 642 [discriminatory intent necessary element of disparate treatment claim under FEHA].) Because direct evidence of discriminatory intent is rare, California has adopted the three-stage burden-shifting test established by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 [93 S.Ct. 1817, 36 L.Ed.2d 668] for trying discrimination claims based on a theory of disparate treatment. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 356-357 (Guz).) At trial, the McDonnell Douglas test places on the plaintiff the initial burden to establish a prima facie case of discrimination. . . . [] The specific elements of a prima facie case may vary depending on the particular facts. [Citations.] Generally, the plaintiff must provide evidence that (1) he [or she] was a member of a protected class, (2) he [or she] was qualified for the position he [or she] sought or was performing competently in the position he [or she] held, (3) he [or she] suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some circumstance suggests discriminatory motive. [Citations, fn. omitted.] [] If, at trial, the plaintiff establishes a prima facie case, a presumption of discrimination arises. . . . [] Accordingly, at this trial stage, the burden shifts to the employer to rebut the presumption by producing admissible evidence, sufficient to raise [] a genuine issue of fact and to justify a judgment for the [employer], that its action was taken for a legitimate, nondiscriminatory reason. [Citations.] [] If the employer sustains this burden, the presumption of discrimination disappears. [Citation.] The plaintiff must then have the opportunity to attack the employers proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive. [Citations.] . . . The ultimate burden of persuasion on the issue of actual discrimination remains with the plaintiff. [Citations.] (Id. at pp. 354-356.)

An employer moving for summary judgment on a FEHA cause of action requiring proof of discriminatory intent can negate that element and shift the burden to the plaintiff by producing evidence of a legitimate, nondiscriminatory reason for the allegedly adverse employment action. (Guz, supra, 24 Cal.4th at pp. 356-357; Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 150; see Code Civ. Proc., 437c, subd. (p)(2) [defendant meets its burden on summary judgment by showing one or more elements of [plaintiffs] cause of action, even if not separately pleaded, cannot be established, or [by establishing] a complete defense to that cause of action].)

Once the employer sets forth a nondiscriminatory reason for the decision,

the burden shifts to the plaintiff to produce substantial responsive evidence that the employers showing was untrue or pretextual. (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1735; Slatkin v. University of Redlands (2001) 88 Cal.App.4th 1147, 1156; see also Guz,supra, 24 Cal.4th at p. 357.) [A]n employer is entitled to summary judgment if, considering the employers innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that the employers actual motive was discriminatory. (Guz, at p. 361.)

The same burden-shifting analysis applies to a FEHA claim for retaliation under section 12940, subdivision (h). (Yanowitz v. LOreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz).) A plaintiff establishes a prima face case for retaliation by showing he or she engaged in a protected activity, the employee suffered an adverse employment action and a causal link exists between the protected activity and the employers action. (Ibid.) Upon such a showing, the burden shifts to the employer to provide substantial responsive evidence showing a legitimate, non-retaliatory reason for the adverse employment action. (Ibid.; Sada v. Robert F. Kennedy Medical Center, supra, 56 Cal.App.4th at p. 149.) Summary judgment is appropriate if, upon consideration of all the circumstances, no reasonable trier of fact could find more likely than not the employers actual motive was retaliatory. (Yanowitz,at p. 1042; Sada,at p. 149.)

We review the trial courts grant of summary judgment de novo and decide independently whether the parties have met their respective burdens and whether the facts not subject to triable dispute warrant judgment for the moving party as a matter of law. (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348; Guz, supra, 24 Cal.4th at p. 334; Code Civ. Proc.,  437c, subd. (c).)

2. Kobbervig-Harrell Failed To Raise a Triable Issue of Fact That Nikes Termination Decision Was Discriminatory or Retaliatory

Kobbervig-Harrell concedes that, as to the claims for gender and race discrimination and retaliation for utilizing pregnancy leave, Nike met its burden on summary judgment/summary adjudication by proffering a legitimate, nondiscriminatory reason for her termination. However, she contends triable issues of material fact exist concerning whether that proffered reason is merely a pretext for unlawful gender and race discrimination ( 12945, subd. (a)) or retaliation for utilizing statutory leave guaranteed under FEHA.[8]

Pretext may be demonstrated by showing the proffered reason had no basis in fact, the proffered reason did not actually motivate the discharge, or, the proffered reason was insufficient to motivate the discharge. [Citation.] [Citation.] (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 224; see also Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1005 [pretext may be shown by such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employers proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence, [citation], and hence infer that the employer did not act for [the asserted] non-discriminatory reasons.].) However, simply showing the employer is lying, without some evidence of discriminatory motive, is not enough to infer discriminatory animus. The pertinent [FEHA] statutes do not prohibit lying, they prohibit discrimination. (Guz, supra, 24 Cal.4th at p. 361; see also Slatkin v. University of Redlands, supra, 88 Cal.App.4th at p. 1156.)

a. Pregnancy discrimination and retaliation

Kobbervig-Harrell asserts the timing of her termination ‑‑ the day she returned from parental leave ‑‑ coupled with Habess pregnancy-related remarks following Kobbervig-Harrells disclosure of her pregnancy, are more than sufficient to raise an inference the termination of employment was motivated by her pregnancy and use of her pregnancy leave. (See, e.g., California Fair Employment & Housing Com. v. Gemini Aluminum Corp. (2004) 122 Cal.App.4th 1004, 1023 [timing of termination immediately following employees engagement in protective conduct may raise inference termination was illegal result of protected conduct]; Kelly, supra, 135 Cal.App.4th at p. 1100 [evidence that plaintiff was discharged within a day of complaining about possible pregnancy discrimination permitted inference discharge was discriminatorily based].)

Kobbervig-Harrell overstates the evidence and the permissible inferences from it. The uncontroverted evidence establishes Kobbervig-Harrells termination followed Nikes receipt of a scathing complaint from Proper accusing Kobbervig-Harrell of significant performance issues, and an investigation revealed similar problems at other accounts serviced by Kobbervig-Harrell. Thus, Kobbervig-Harrells argument as to the timing of her termination rests primarily, as it must, on her assertion the Proper complaint was itself solicited by Nike to justify its wrongful termination scheme, a fact she says is supported by the hearsay assertion in McGhees initial declaration that Caruso told her Menuck had requested he submit the complaint to Nike.[9]

Although Carusos declaration explains his complaint was unsolicited and McGhee confirmed in her second declaration that she, in fact, did not know whether Caruso had volunteered the information or was asked for it, Kobbervig-Harrell contends these inconsistencies in McGhees two declarations and between McGhees initial declaration and Carusos declaration raise a triable issue of fact sufficient to defeat summary judgment.

Kobbervig-Harrells reliance on McGhees initial declaration, even were it admissible, is misplaced. McGhees first declaration does not contradict Carusos testimony that the substance of his complaint was volunteered to Nike. Indeed, the only reasonable inference to be derived from all the evidence, considered together, is that Menuck told Caruso to reduce his unsolicited oral complaints about Kobbervig-Harrell to writing in order to submit them to Kobbervig-Harrells managers. There is no evidence of any sort that Caruso manufactured the complaint to assist a Nike scheme to terminate Kobbervig-Harrell. Indeed, even if McGhees original hearsay statement is susceptible to the inference Kobbervig-Harrell advances ‑‑ that Menuck, on behalf of Nike, requested Caruso submit his complaints about Kobbervig-Harrell to Nike ‑‑ it does not follow that the reason for the request was discriminatory animus over Kobbervig-Harrells pregnancy or her use of statutorily protected leave as opposed to some other reason (for example, that Menuck wanted the Proper account for her own, even after Kobbervig-Harrell returned to work). Moreover, although Clementss comment that the complaint is long but good might, without further explanation, suggest an ulterior motive by Nike, without credible evidence the Proper complaint was in fact solicited, the remark itself provides at most only a weak inference of discrimination. (See Guz, supra, 24 Cal.4th at p. 362 [given the strength of the employers showing of innocent reasons, summary judgment appropriate where countervailing circumstantial evidence is too weak to raise a rational inference discrimination occurred]; Slatkin v. University of Redlands, supra, 88 Cal.App.4th at p. 1156 [that employer lied about reasons for firing plaintiff was not sufficient to support a religious discrimination claim absent evidence firing was based on religious differences].)

Kobbervig-Harrell also argues substantial evidence of pretext and discriminatory animus may be found in Habess comments about the difficulty of working at Nike while pregnant. However, contrary to Kobbervig-Harrells contention, Habess comments are not themselves direct evidence of discrimination (cf. Enlow v. Salem-Keizer Yellow Cab Co. (9th Cir. 2004) 389 F.3d 802, 811 [direct evidence of discrimination is found in statements or conduct that may be viewed as directly reflecting the alleged discriminatory attitude]), nor are they powerful circumstantial evidence of such animus. The cited remarks are highly ambiguous comments made by Habes (who herself had three children while at Nike) about the difficulty of working full time while pregnant, and as such, fall far short of the substantial evidence required to infer a discriminatory intent in terminating Kobbervig-Harrells employment. (See Horn v. Cushman &Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 803 [comment from supervisor to older employee, havent you ever heard of a fax before, was highly ambiguous and at most, a stray ageist remark entitled to little weight in considering question of pretext]; see also Phelps v. Yale Sec., Inc. (6th Cir. 1993) 986 F.2d 1020, 1026, [i]solated and ambiguous comments are too abstract to create inference of age discrimination]; Smith v. Firestone Tire and Rubber Co. (7th Cir. 1989) 875 F.2d 1325, 1330 [comments unrelated to the decisional process, are insufficient to demonstrate that the employer relied on illegitimate criteria, even when such statements are made by decision-maker in issue].)[10]

Kelly, supra, 135 Cal.App.4th 1088, on which Kobbervig-Harrell relies, does not compel a different result. In Kelly the plaintiff, pregnant at the time she was terminated, sued her employer for pregnancy discrimination in violation of FEHA and for wrongful termination in violation of public policy. In its motion for summary judgment, the employer asserted the plaintiff was terminated due to economic downsizing. In opposition to the motion, the plaintiff provided evidence her employers true motivation was discriminatory: When consulted by the employer about whom to lay off, the plaintiffs supervisors unanimously encouraged her retention, characterizing her work as superior and attesting to her abilities to manage marketing efforts in a period of downsizing and transition. The supervisors opinion on her retention, however, was expressly dismissed by the decision maker with the off-handed remark that the plaintiff had checked out, referring to the plaintiffs pregnancy. The plaintiff also presented evidence that, even though she was told by her employer that she was being let go because her position was being eliminated, her position was in fact, retained notwithstanding the downsizing. Division Eight of this court reversed the summary judgment, holding that, from this evidence, a trier of fact could reasonably conclude more likely than not that the proffered business reason for the plaintiffs termination was merely pretext for pregnancy discrimination. (Id. at pp. 1099-1100.)

Although Kobbervig-Harrell asserts the checked out remark in Kelly, supra, 135 Cal.App.4th 1088, resembles Habess comments about Kobbervig-Harrells pregnancy, in fact, the nature, context and significance of the remarks are very different. In Kelly, the remark was expressly related to the decisionmaking process and provided responsive evidence of discriminatory animus to defeat summary judgment. Here the isolated comments, albeit made by Habes, one of Kobbervig-Harrells supervisors, were entirely unrelated to the decisionmaking process. (See Smith v. Firestone Tire and Rubber Co., supra, 875 F.2d at p. 1330 [comments unrelated to the decisional process are insufficient to demonstrate that the employer relied on illegitimate criteria, even when such statements are made by decision-maker in issue].) Moreover, it was Clemons, not Habes, who had first urged Kobbervig-Harrells termination. (See Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 70 [statements made by individuals not integrally involved in decisionmaking process not indicative of employers discriminatory motive].)

Of course, singling out an employee for an investigation may be sufficient, when combined with evidence of discriminatory animus, to raise a reasonable inference the employers proffered business reason for the adverse employment action is actually a pretext for unlawful discrimination or other conduct prohibited by FEHA. (See, e.g.,Yanowitz, supra, 36 Cal.4th at pp. 1061-1062.) For example, in Yanowitz, the plaintiff (Yanowitz) sued her employer (LOreal) for unlawful retaliation under FEHA, claiming she suffered an adverse employment action after she refused her superiors demand to terminate a female employee Yanowitzs superiors considered insufficiently physically attractive. In moving for summary judgment, LOreal proffered evidence its adverse-employment action had been prompted by customer complaints it had received about Yanowitz, including an expressed desire by certain corporate customers not to work with Yanowitz. The Supreme Court held that, while the evidence proffered by LOreal did suggest problems with Yanowitzs performance, the record established that many of the complaints about Yanowitz had been known previously by LOreal and included in Yanowitzs prior performance reviews; yet, despite these known complaints, Yanowitz was consistently rated above expectation. It was not until Yanowitz exercised her protected rights under FEHA to refuse an instruction to fire an otherwise qualified person on the basis of gender stereotypes that Yanowitzs supervisor began soliciting additional negative information about Yanowitz from her subordinates and, even more significantly, began to give greater credence to such complaints. Under those circumstances summary judgment for the employer was improper because triable issues of material fact existed as to whether the proffered reason for the adverse employment action was merely a pretext for retaliation prohibited by FEHA. (Id. at pp. 1060-1062.)

The employers decision in Yanowitz, supra, 36 Cal.4th 1028 to ignore customer complaints and continue to evaluate the plaintiff positively until she defied her superiors and exercised her protected rights materially distinguishes Yanowitz from the instant case. Here, the evidence is undisputed Nike had no knowledge about Kobbervig-Harrells alleged improper and unethical behavior until the Proper complaint. Nikes investigation of that complaint and discovery of additional customer concerns are in no way similar to LOreals reliance on complaints it had previously disregarded to justify a further solicitation and investigation of Yanowitz after her refusal to comply with her supervisors unlawful demand.

Although Kobbervig-Harrells appellate briefs, like her opposition to the motion for summary judgment/summary adjudication, devote a great deal of attention to emphasizing purported factual disputes, those disputes relate to immaterial issues. For example, Kobbervig-Harrell asserts much of the substance of the client complaints is false: She never suggested or accepted any gifts from clients; properly advocated on behalf of Proper to raise its credit limit; and merely followed company policy in providing Nike product to Proper. She claims Nike knew that front line sales representatives often bear the brunt of clients dissatisfaction with Nikes product policies and argues it is disingenuous (and indicative of pretext) for Nike to suggest it relied on such customer complaints to terminate her.

Without weighing the credibility of the complaints or Kobbervig-Harrells denials of wrongdoing (see Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840 [trial court may not grant summary judgment based on courts evaluation of credibility]), the undisputed evidence reflects a number of complaints about Kobbervig-Harrells attitude, customer service and unethical conduct. As long as Nike believed the Proper complaint and undertook its investigation in good faith, its decision to terminate Kobbervig-Harrells at-will employment may be foolish, trivial, unwise or entirely baseless, but that alone does not make the decision discriminatory. (See Guz, supra, 24 Cal.4th at p. 358 [[I]f nondiscriminatory, [the employers] true reasons need not necessarily have been wise or correct. [Citation.] [T]he ultimate issue is simply whether the employer acted with a motive to discriminate illegally.]; Hersant v. Department of Social Services, supra, 57 Cal.App.4th at p. 1005 [to defeat summary judgment after employer has presented substantial evidence of a legitimate nondiscriminatory reason for its decision, [i]t is not enough for the employee simply to raise triable issues of fact concerning whether the employers reasons for taking the adverse action were sound. What the employee has brought is not an action for general unfairness but for discrimination].)

Kobbervig-Harrell, of course, suggests the investigation was not undertaken in good faith but was based on its distaste for pregnant women working at Nike and/or was in retaliation for her utilization of pregnancy leave. But, as explained, there is no evidence to support either assertion. Habess comments themselves do not support an inference of company bias against pregnant women nor is there any evidence, apart from the timing of the termination, which supports a claim of retaliation based on usage of statutorily protected pregnancy leave. Nike not only presented evidence of highly negative customer complaints regarding service and unethical conduct as a reason for termination, but it also provided evidence of its parental leave policy and its adherence to that policy for pregnant employees. No evidence was presented by Kobbervig-Harrell that Nike ever departed from that policy in other circumstances. While such evidence is certainly not necessary to support a claim of discrimination against Kobbervig-Harrell, its absence is notable in a record otherwise devoid of evidence of discriminatory animus. Indeed, it is the failure to provide substantial evidence from which a rational trier of fact could infer more likely than not that discrimination motivated the decision that is fatal to Kobbervig-Harrells efforts to defeat summary judgment. (See Guz, supra, 24 Cal.4that p. 362 [summary judgment for the employer appropriate where given the strength of the employers showing of innocent reasons, any countervailing circumstantial evidence of discriminatory motive or retaliation is too weak to raise a rational inference that discrimination occurred.]; Reeves v. Sanderson Plumbing Product, Inc. (2000) 530 U.S. 133, 148 [120 S.Ct. 2097, 147 L.Ed. 2d 105] [summary judgment proper where plaintiff created only a weak issue of fact as to whether employers reason was untrue and there is abundant evidence that no discrimination had occurred].)

b. Race discrimination

Kobbervig-Harrells race discrimination claim also lacks any evidentiary support. Apart from whether Kobbervig-Harrell could even satisfy a prima facie case for race discrimination, she provided no evidence at all that race motivated the termination decision. At most, she provides the declaration of a former employee, Greg Harvey, who offered the conclusory assessment Nikes workforce lacked ethnic and gender diversity. Even if that single-sentence observation was meant as a comment on the racial make-up of Nikes employees, in light of Nikes showing of legitimate business reason for its decision to discharge Kobbervig-Harrell, such evidence falls far short of establishing racial animus in the termination decision.

3. Wrongful Discharge in Violation of Public Policy and Retaliation

Kobbervig-Harrells claim of wrongful discharge in violation of public policy rests on her claim she was terminated because of her gender or race or in retaliation for utilization of her statutory leave in violation of the public policies codified in FEHA. (See City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, 1159 [common law tort claim for wrongful termination must be premised on violation of public policy articulated in Constitution or statute].) As explained, her claims alleging termination in violation of FEHA fail as a matter of law. Accordingly, so too do her claims for wrongful termination in violation of the public policies codified in FEHA. (Ibid.)

4.Harassment

It is an unlawful employment practice under FEHA to harass an employee based on the employees sex. ( 12940, subd. (j)(1).) [H]arassment because of sex includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions. ( 12940, subd. (j)(4)(C).) FEHAs harassment prohibition protects against a broad range of conduct, ranging from expressly or impliedly conditioning employment benefits on submission to or tolerance of unwelcome sexual advances, to the creation of a work environment that is hostile or abusive on the basis of sex. (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 461 (Miller).)

Kobbervig-Harrell contends that, both before and after her pregnancy, she was subject to a hostile work environment. To establish a hostile work environment, the plaintiff must demonstrate that she was subjected to unwelcome sexual advances, comments or behavior that was severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their sex. (Miller, supra, 36 Cal.4that p. 462; Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 130.) The work environment is evaluated by the totality of the circumstances, including the frequency of the discriminatory conduct[,] its severity[,] whether it is physically threatening or humiliating, or a mere offensive utterance[,] and whether it unreasonably interferes with an employees work performance. (Miller, at p. 462, quoting Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17, 23 [114 S.Ct. 367, 126 L.Ed.2d 295].) The required showing of severity varies inversely with the pervasiveness or frequency of the conduct; that is, the more incidents the less severe they need to be to establish a hostile environment. (Ellison v. Brady (9th Cir. 1991) 924 F.2d 872, 878; see also Miller, at p. 462.)

Kobbervig predicates her sexual harassment claim on allegations that, on five or six occasions during an eight year period they worked together, Ferrer rubbed up against her in sales meetings and made comments on her appearance, telling her she looked good or looked hot. By her own admission, Kobbervig-Harrell never reported this conduct to Nike despite Nikes anti-harassment policy. Quite apart from any statute of limitations problem (an issue not raised in the summary judgment motion), her harassment allegations fail as a matter of law. Although physical touching is generally considered more offensive than unwelcome verbal abuse and thus need not be as severe or pervasive (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 609-610), the sporadic comments and conduct alleged, occurring five or six times over an eight-year period, were not sufficiently frequent, severe or pervasive to be actionable under FEHA. (See Aguilar v. Avis Rent A Car Systems, Inc., supra, 21 Cal.4th at pp. 130-131 [occasional, isolated, [or] sporadic acts are usually not enough to alter the conditions of employment and create a hostile environment]; Herberg v. California Institute of the Arts (2002) 101 Cal.App.4th 142, 153 [observing that isolated or sporadic incidents of offensive touching under certain circumstances, particularly where there is no violence or threat of violence, may not rise to level of actionable harassment]; Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1123-1124 [isolated instances of crude conduct not actionable harassment]; Fisher, at pp. 610-612.)[11]

5. Summary Judgment Was Improper as to Nike Because Nikes Motion Failed To Address the Failure-to-Accommodate Claim

In addition to her other claims of FEHA violations, Kobbervig-Harrell alleged Nike committed unlawful employment practice(s) . . . by failing to make all reasonable accommodations [for her pregnancy]. Nike failed to address that claim in its motion for summary judgment/summary adjudication, a fact pointed out by Kobbervig-Harrell in her opposition to the motion. In its reply to the motion Nike argued a failure-to-accommodate claim had not been pleaded or, in the alternative, Kobbervig-Harrell was not disabled as a matter of law and thus not entitled to an accommodation. The trial court, omitting any reference to this claim in its statement of decision, apparently (albeit implicitly) agreed with one or both these arguments. This was error.

Although captioned under a single cause of action, Kobbervig-Harrells allegations actually encompass separate claims under FEHA, including gender/pregnancy discrimination, race discrimination, retaliation, harassment, failure to accommodate her pregnancy and failure to take reasonable steps to prevent discrimination and harassment. (Mathieu v. Norrell (2004) 115 Cal.App.4th 1174, 1187 [allegations of sexual harassment and retaliation actually alleged two separate causes of action under FEHA even though pleaded in single count of complaint]; see Skrbina v. Fleming Companies (1996) 45 Cal.App.4th 1353, 1364 [plaintiff who alleges defendants single wrongful act invaded two different rights has stated two causes of action even though pleaded in a single count of the complaint]; Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848-1855 [same].) To be sure, the complaint itself is barely adequate; several different causes of action are alleged in a single sentence with the only supporting detail supplied by a reference to equally vague, generalized assertions of wrongdoing. Yet there is little question that the complaint put Nike on notice of the failure-to-accommodate claim, alleged with the same specificity as the discrimination, harassment and retaliation claims. If Nike wished to clarify those allegations, its obligation was to do so, either in a demurrer challenging the complaints sufficiency or in discovery prior to making its motion for summary judgment/summary adjudication.

Nikes failure to address this claim in its moving papers is not salvaged by its reply, in which it argued Kobbervig-Harrell was not disabled by her pregnancy and thus not entitled to an accommodation. Having failed to address this claim in its moving papers, the motion should have been denied without regard to arguments made either in the opposition or in the reply. (See Code Civ. Proc., 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 [moving party must successfully meet initial burden of production and persuasion showing claim to be without merit; only then does burden of production shift to opposing party to make a prima facie showing of the existence of a triable issue of material fact]; Scripps Clinic v. Superior Court (2003) 108 Cal.App.4th 917, 929 [summary judgment in favor of defendant inappropriate where defendant failed to address cause of action alleged, albeit not separately pleaded, in complaint; defendant cannot defeat for first time in reply cause of action it failed to address in its moving papers]; Crouse v. Brobeck, Phleger & Harrison (1998) 67 Cal.App.4th 1509, 1534 [if defendant fails to meet its initial burden of showing entitlement to judgment as a matter of law, burden does not shift to plaintiff and motion is properly denied without regard to plaintiffs opposition].)[12]

For the same reason, Kobbervig-Harrell contends the motion should also be denied with regard to her claim alleging Nikes failure to take all reasonable steps necessary to prevent discrimination and harassment from occurring ( 12940, subd. (k)). That contention is not well taken. A necessary element of a cause of action under FEHA for failing to take all reasonable steps necessary to prevent discrimination or harassment is that discrimination or harassment actually occurred. (Carter v. California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 925, fn. 4 [cause of action under 12940, subd. (k), for failure to take reasonable steps to prevent discrimination and harassment does not stand alone, but depends upon one being able to prove he or she was actually victim of discrimination or harassment]; Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 286-287 [same].) Having demonstrated as a matter of law that no discrimination or harassment occurred, Nike properly negated that cause of action in its moving papers.

DISPOSITION

The judgment is affirmed as to Erica Bullard, Pete Ferrer and Beth Habes. The judgment is reversed as to Nike. The trial court is directed on remand to issue a new and different order granting Nikes summary adjudication motion as to the claims for wrongful termination in violation of public policy, gender discrimination, race discrimination, retaliation, harassment and failure to take steps to prevent harassment and discrimination from occurring and denying the summary adjudication motion as to the

failure-to-accommodate claim and to conduct further proceedings not inconsistent with this opinion. Bullard, Ferrer and Habes are to recover their costs on appeal. Kobbervig-Harrell and Nike are to bear her and its own costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

PERLUSS, P. J.

We concur:

JOHNSON, J. ZELON, J.

Publication courtesy of San Diego free legal advice.

Analysis and review provided by Santee Property line attorney.

[1] Carusos letter included the following explanation for its timing, Now I realize you are both probably thinking to yourselves why did it take us so long to come forward and express these concerns to the both of you? Frankly and simply put, it took Sara [Menuck] coming to work with us to make us realize that the treatment we had been receiving up until that point was not standard or condoned by Nike. We had assumed that being threatened to have our [Q]uickstrike account pulled from us, and price fixing was something that must have been backed by Nike. . . . How exactly does one go about telling your most valuable vendor that you[re] unhappy with them when youve been repeatedly threatened with the possibility of being shut down by your sales rep.

[2] Statutory references are to the Government Code unless otherwise indicated.

[3] Kobbervig-Harrell did not allege in her complaint that she had filed an administrative complaint with the Department of Fair Employment and Housing and had received a right to sue letter. Nike and its managers did not demur to the FEHA causes of action nor seek summary adjudication of the FEHA claims on this ground, despite asserting failure to exhaust administrative remedies as an affirmative defense in their answer.

[4] Habes testified she transcribed her notes from the investigation in an e-mail she sent to Clemons.

[5] At her deposition Clements testified she had no prior knowledge of the complaint and explained her remark upon receiving the complaint meant only its thorough. There is a lot of specific, a lot of specifics that the account was talking to and thats it.

[6] Clemons acknowledged the company ordinarily would have confronted the employee before termination. That practice was not followed in this case because Kobbervig-Harrell was on leave at the time Nike made the decision to terminate her.

[7] There is no indication the parties expressly asked the court to rule on their objections at the hearing or that it would have been futile to do so. Accordingly, the objections are considered waived, and the objected-to evidence may be considered part of the record on appeal. (Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 1186-1187 [as a general rule, on appeal from an order granting summary judgment the reviewing court may consider any objected-to evidence in the absence of a ruling by the trial court], disapproved on other grounds by Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853, fn. 19; Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 670; Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co. (2005) 133 Cal.App.4th 1197, 1216.)

[8] At the time of Kobbervig-Harrells termination, section 12945, subdivision (b)(2), provided it was an unlawful employment practice for an employer to refuse to allow a female employee affected by pregnancy to take a leave on account of pregnancy for a reasonable period of time not to exceed four months. (Stats. 1999, ch. 591, 9.) Section 12945 was amended effective January 1, 2005. It currently provides, [I]t shall be an unlawful employment practice, unless based upon a bona fide occupational qualification for an employer to refuse to allow a female employee disabled by pregnancy, childbirth or related medical conditions to take a leave for a reasonable time not to exceed four months and thereafter return to work, as set forth in the commissions regulations. ( 12945, subd. (a); see also Cal. Code Regs., tit. 2, 7291.9 [Upon granting the pregnancy disability leave or transfe