Nelson v. Jones Day

 

 

 

 

 

 

 

Filed 6/25/13  Nelson v. Jones Day CA2/4

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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 FOUR

 

 
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JAKI NELSON,             Plaintiff and Appellant,             v.   JONES DAY,             Defendant and Respondent.

B235720         (Los Angeles County        Super. Ct. No. BC413805)

 

 

          APPEAL from a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Mary Ann Murphy, Judge.  Affirmed.

          Jaki Nelson, in pro. per., for
Plaintiff and Appellant.

          Sheppard, Mullin, Richter &
Hampton, Tracey A. Kennedy and Jonathan P. Barker for Defendant and Respondent.

 

 

 

          Jaki Nelson, in propria persona,
appeals from the judgment entered in favor of her former employer, Jones Day,
following the trial court’s grant of summary judgment in favor of Jones
Day.  We affirm.

 

>FACTUAL AND PROCEDURAL BACKGROUND

          Nelson, an African American woman, was
hired by Jones Day as a legal secretary in its Los Angeles office in November 1992.  She was laid off on June
15, 2010.  She alleged that African American secretaries
in Jones Day’s Los Angeles office were subjected to disparate
treatment in areas such as compensation, benefits, performance evaluations, and
accusations of misconduct.  She further
alleged that she had been retaliated against for complaining about disparate
treatment by the firm’s human resources manager, Suzanne Zamel, office
administrator, Lisa Takata, and human resources coordinator/secretarial
supervisor, Pat Miller.  She stated that
she received positive performance evaluations before she complained of
mistreatment based on race and filed complaints with the Equal Employment
Opportunity Commission (EEOC). 

          Nelson asserted that the complaints of
non-African American employees were addressed promptly, while hers were
not.  As an example, she asserted that
the partner she began working for in 1997, Norman Pedersen, treated her
abusively, frequently yelling at her and calling her a “bitch.”  She complained to the office manager, Clark
Carlson, who assured her the complaint would remain confidential, but Carlson
told Pedersen, which led to Pedersen yelling at Nelson again.  Around 2001, Nelson asked the office
administrator, Sheila McKeown, if she could work for someone else, but,
according to Nelson, nothing was done. 

          Although Nelson alleged that nothing
was done regarding her complaints about Pedersen, memos from her personnel file
and copies of emails in the record indicate that McKeown and Zamel responded to
Nelson by email and met with her in May 2001 and July 2001 to discuss the
situation.  The record shows that Nelson
received positive evaluations from Pedersen, and there is no indication that
she was unhappy with McKeown’s and Zamel’s responses to her. 

          Nelson also alleged that she was
exposed to racist comments by Jones Day employees and that her complaints about
these comments were ignored.  In 2001, she
returned from a sick leave and asked a Caucasian attorney, Scott Behrendt,
which secretary covered for her during her absence.  Behrendt replied that it was “A dirty
Mexican, can’t you smell her?”  Nelson
complained to McKeown about this comment, but nothing was done.  After Nelson’s complaint, Behrendt began
acting physically aggressive toward her and criticizing her work. 

          In 2004, Nelson was told by an unnamed
employee that Miller, the secretarial supervisor and human resources
coordinator, referred to an African American legal secretary as a “ghetto
nigger.”  When Nelson confronted Miller,
Miller did not deny using the epithet and did not apologize, but instead asked
Nelson who told her about the remark. 
Nelson did not tell Miller. 
Nelson further alleged that Miller treated employees of color
differently by ignoring their complaints, whereas she immediately addressed the
complaints of Caucasian employees. 

          In 2003, Nelson saw Behrendt and Reed
Aljian, a Caucasian attorney, repeatedly taunt Emery El Habiby, an African
American attorney of Egyptian ancestry. 
El Habiby filed an EEOC complaint against Jones Day and included
Nelson’s name as a witness.  Aljian
confronted Nelson, told her he was furious with her, and asked that she no
longer work with him.  Although Aljian
got a new secretary, he continued to demand that Nelson do work for him and on
one occasion threw a paper clip at Nelson. 
Nelson further alleged that Aljian had a violent temper, slammed papers
on her desk, and had threatened to throw secretaries out the window.  In addition, she alleged that Behrendt,
Aljian, and another Caucasian attorney, Christopher Lovrien, made her
uncomfortable by glaring at her when they would go out to lunch. 

          Nelson’s complaints about Aljian were
not addressed, so she sent an email in 2005 to Takata, Zamel, and two partners,
Frederick McKnight and Elwood Lui, expressing her belief that she was being
discriminated against based on her race. 
She did not receive a response. 

          In 2003 or 2004, a former secretary,
Geri Abood, told Nelson that Zamel had revealed confidential information from
Nelson’s personnel file to Abood.  Nelson
complained about Zamel to David Boyce, the firm’s administrative partner, but
nothing was done. 

          In 2005, an unnamed secretary told
Nelson that the secretary’s salary had been $70,000 for many years.  Nelson requested a raise, asserting that
non-African American secretaries earned more than African American secretaries,
but Zamel and Takata told her that no secretaries earned $70,000. 

          In 2005, Nelson made a confidential
complaint to Miller that Harriet Leva, a partner, violated the firm’s
no-fragrance policy.  Nelson asked Miller
to keep her complaint confidential, but Miller told Leva, who became angry with
Nelson.  Nelson then complained to
Takata, who told Nelson that she should have approached Leva herself.  According to Nelson, Takata started yelling
at her, so she walked out, but Takata then accused her of insubordination. 

          Nelson alleged that, from 2006 until
mid-2007, Geoffrey Forgione would tell her to complete his timesheets with 7.5
hours or more of billable hours each day, but without giving her his actual
time worked and the tasks performed, causing her to worry that this constituted
fraudulent billing.  Nelson spoke to
Miller about the practice, but nothing was done about it.  Nelson also alleged that Forgione made
derogatory comments to her that she regarded as racially motivated. 

          On May 23, 2007, Nelson was called into a two-hour
meeting with Zamel and Takata, who allegedly yelled at her and “took turns
hurling demeaning insults” at her.  When
Nelson asked them why they were singling her out, Zamel allegedly replied that
Nelson previously had singled Zamel out, presumably referring to Nelson’s prior
complaint to Boyce about Zamel.  Zamel
allegedly also told Nelson that it was “payback” for her prior complaints about
other people at the firm.  Nelson told
them she felt she was being singled out because of her race. 

          Zamel and Takata told Nelson that the
four attorneys for whom she worked were unhappy with her, and Zamel accused
Nelson of “time-sheet fraud, bad attendance, chronic lateness and excessive
phone and Internet usage.”  Takata told
Nelson, “Black people have come a long way and you should be ashamed of cheating
the firm.”  Nelson alleged that no
attorneys had raised any issues with her prior to this meeting and that Zamel
and Takata did not allow her to review reports documenting the accusations
against her. 

          After the May 2007 meeting, Nelson
sent an email to David Williams, the firm’s Human Resources Director, telling
him she had experienced discrimination,
retaliation, and harassment because of her race.  Williams subsequently called Nelson, told her
he had reviewed her personnel file, and had concluded that Nelson was at
fault. 

          In a memo to Nelson’s personnel file
following the May 2007 meeting, Zamel wrote that, after receiving reports of
Nelson spending excessive time on the Internet and on personal phone calls, the
human resources department examined her usage and found Internet usage of six
hours on four randomly selected days and personal phone usage from 45 minutes
to three hours on each of those days. 
Zamel further wrote that she had confirmed that Nelson did not take the
initiative to ask for work from any of the four attorneys assigned to her.  In addition, Miller had noticed discrepancies
on Nelson’s timesheets and the actual time she had arrived at work, based on
her cardkey reports.  The memo also
stated that Nelson had arrived to work late every day in April 2007.  According to Zamel’s memo, Nelson agreed
during the meeting to stop using the Internet for personal business, decrease
her personal phone calls, report her hours accurately, arrive at work on time,
and take the initiative to assist the four attorneys. 

          Nelson took a medical leave of absence
beginning May 29, 2007, because of emotional trauma resulting from the alleged href="http://www.mcmillanlaw.com/">“harassment and discrimination.”  She filed a complaint with the EEOC in August
2007.  She later alleged that she
experienced retaliation when she returned to work on June 2, 2008, stating that
she was assigned to work as a floater and was “ostracized and shunned” because
of her EEOC complaint.  In September
2008, Nelson was reprimanded for missing a training class, although others who
had missed the class were not reprimanded. 
In November 2008, she was temporarily blocked from the email system
because her name was “in the ‘termination’ file,” although Zamel later told her
this was a mistake.  Nelson also was
contacted by a legal recruiter who was under the impression that Nelson had
been fired. 

          As another example of disparate
treatment, Nelson stated that James Childs, a senior partner, repeatedly
chastised her work performance and, at one point, snatched her glasses off her
face and said, “You need to get some new fucking glasses!” 

          Nelson also asserted that Jones Day
began to give her pretextual negative reviews in preparation for her
termination.  For example, in January
2009, Childs and another attorney, Sophia Chang, chastised Nelson for taking
too long to create file folders and for a typographical error in a letter from
June 2008.  Nelson alleged that, after
she filed a second EEOC complaint in March 2009, she was shunned by many
employees, she was refused permission to view her personnel file, and when she
was allowed to view it, she noticed that she had received negative evaluations
for the first time in her career. 

          In November 2008, Nelson received an
email from Aaron Agenbroad, an African American partner who said he would be
investigating her claims of harassment, discrimination, and retaliation.  Agenbroad met Nelson in December 2008 and
corresponded with her through January 2009. 
He interviewed twelve other witnesses and concluded his investigation in
February 2009.  Agenbroad acknowledged
that a number of people raised concerns about disparate treatment by personnel
in the Los Angeles office’s human resources department, including the
perception that they played favorites among the staff.  However, he concluded that the preferential
treatment was not based on race or any other protected characteristic, noting
that members of many different racial groups had received preferential
treatment. 

          In his memo summarizing his
investigation, Agenbroad concluded that, although Nelson was upset by her
interactions with the human resources personnel, he did not find disparate
treatment of employees based on race.  He
further concluded that the firm’s dealings with Nelson, such as monitoring her
Internet usage and processing her unemployment and other benefits claims, were
not tainted by racial or retaliatory animus. 
Agenbroad did, however, find it troubling that neither Zamel nor Takata
had made any effort to investigate Nelson’s prior complaints of
discrimination. 

          Nelson filed the instant action in May
2009.  She filed a second amended
complaint in September 2010, alleging eight causes of action:  (1) harassment based on race in
violation of the California Fair Employment and Housing Act (FEHA) (Gov. Code,
§ 12900 et seq.); (2) discrimination based on race in violation of FEHA; (3)
failure to prevent unlawful harassment, discrimination and retaliation in
violation of FEHA; (4) failure to investigate racial harassment in violation of
FEHA; (5) retaliation in violation of FEHA; (6) tortious discharge in violation
of public policy; (7) intentional infliction of emotional distress; and (8)
negligent infliction of emotional distress. 
Jones Day filed a motion for summary judgment or summary adjudication in
March 2011. 

          Nelson did not oppose Jones Day’s
motion for summary adjudication of her first (racial harassment), fourth
(failure to investigate harassment), and eighth (negligent infliction of
emotional distress) causes of action. 
After holding a hearing, the trial court granted Jones Day’s motion for
summary judgment and entered judgment in favor of Jones Day. 

 

DISCUSSION

          Appellant contends that the trial
court erred in granting summary judgment as to her claims for retaliation,
violation of public policy, discrimination, failure to prevent discrimination,
and intentional infliction of emotional distress.href="#_ftn1" name="_ftnref1" title="">>[1] 

          “On appeal after a motion for href="http://www.fearnotlaw.com/">summary judgment has been granted, we
review the record de novo, considering all the evidence set forth in the moving
and opposition papers except that to which objections have been made and
sustained.  [Citation.]”  (Guz v.
Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 (Guz).)  “Declarations of the
moving party are strictly construed, those of the opposing party are liberally
construed, and doubts as to whether a summary judgment should be granted must
be resolved in favor of the opposing party.” 
(Johnson v. United Cerebral
Palsy/Spastic Children’s Foundation (2009) 173 Cal.App.4th 740, 754 (>Johnson).)  Because Jones Day is the moving party, it has
“the burden of demonstrating as a matter of law, with respect to each of the
plaintiff’s causes of action, that one or more elements of the cause of action
cannot be established, or that there is a complete defense to the cause of
action.  [Citations.]  If a defendant’s presentation in its moving
papers will support a finding in its favor on one or more elements of the cause
of action or on a defense, the burden shifts to the plaintiff to present
evidence showing that contrary to the defendant’s presentation, a triable issue
of material fact actually exists as to those elements or the defense.”  (Id.
at p. 753.)

          “California has adopted the
three-stage burden-shifting test established by the United States Supreme Court
for trying claims of discrimination,” set forth in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792.  (Guz,> supra, 24 Cal.4th at p. 354.)  The test requires the plaintiff to establish
a prima facie case of employment discrimination by providing evidence that (1)
he was a member of a protected class; (2) he was qualified for or performing competently
in the position; (3) he suffered an adverse employment action, such as
termination; and (4) some circumstance indicates a discriminatory motive.  (Id.
at pp. 354-355.)  The plaintiff’s burden
of establishing a prima facie case “is not onerous, but it does require the
plaintiff to present evidence of actions taken by the employer from which the
trier of fact can infer, if the actions are not explained by the employer, that
it is more likely than not that the employer took the actions based on a
prohibited discriminatory criterion.”  (>Johnson, supra, 173 Cal.App.4th at pp. 754-755.)  If the plaintiff establishes his href="http://www.mcmillanlaw.com/">prima facie case, “a rebuttable
presumption of discrimination arises and the burden shifts to the employer to
rebut the presumption with evidence that its action was taken for a legitimate,
nondiscriminatory reason.”  (>Id. at p. 755.) 

          “Finally, if the defendant presents
evidence showing a legitimate, nondiscriminatory reason, the burden again
shifts to the plaintiff to establish the defendant intentionally discriminated
against him or her.  [Citation.]  The plaintiff may satisfy this burden by
proving the legitimate reasons offered by the defendant were false, creating an
inference that those reasons served as a pretext for discrimination.  [Citation.]” 
(Wills v. Superior Court
(2011) 195 Cal.App.4th 143, 160.)

          “[T]o 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 a
combination of the two, such that a reasonable trier of fact could conclude the
employer engaged in intentional discrimination. 
[¶]  . . .  [¶]  As
several federal courts have stated:  ‘The
[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.  [Citations.]’”  (Hersant
v. Department of Social Services (1997) 57 Cal.App.4th 997, 1004-1005.)

 

I.       Retaliation

          Nelson’s first argument is that she
has raised triable issues of material fact as to her claim for
retaliation.  “In order to establish a
prima facie case of retaliation under [FEHA], ‘a plaintiff must show (1) he or
she engaged in a “protected activity,” (2) the employer subjected the employee
to an adverse employment action, and (3) a causal link existed between the
protected activity and the employer’s action.’ 
(Yanowitz [>v. L’Oreal USA, Inc. (2005)] 36 Cal.4th
[1028,] 1042 [Yanowitz].)”  (McCoy
v. Pacific Maritime Assn. (2013) 216 Cal.App.4th 283, 298.)  “Once an employee establishes a prima facie
case, the employer is required to offer a legitimate, nonretaliatory reason for
the adverse employment action. 
[Citation.]  If the employer
produces a legitimate reason for the adverse employment action, the presumption
of retaliation ‘“‘drops out of the picture,’”’ and the burden shifts back to
the employee to prove intentional retaliation. 
[Citation.]”  (>Yanowitz, supra, 36 Cal.4th at p. 1042.)

          In support of the first required
element, Nelson contends that she engaged in protected activity by complaining
about racial discrimination several times prior to the May 2007 meeting with
Zamel and Takata.  She cites Agenbroad’s
comment that Zamel and Takata did not investigate Nelson’s prior complaints
about discrimination.  She also cites the
email she sent in 2005 to McKnight, Lui, Takata, and Zamel, stating that she
was being discriminated against by Jones Day on the basis of race.  Jones Day does not dispute that Nelson
engaged in protected activity. 

          Jones Day also does not dispute that
Nelson suffered the adverse employment action of having her employment
terminated.  Jones Day does, however,
disagree with Nelson’s contention that she was subjected to other adverse
employment actions:  the May 23, 2007
meeting with Zamel and Takata, the November 2008 incident in which she was
unable to access the firm email because it was reported that she had been
terminated, and the report to a legal recruiter that she had been terminated.

          “The inquiry as to whether an
employment action is adverse requires a case-by-case determination based upon
objective evidence.  [Citation.]”  (Thomas
v. Department of Corrections (2000) 77 Cal.App.4th 507, 510-511 (>Thomas).)  “[T]o be actionable, the retaliation must
result in a substantial adverse change in the terms and conditions of the
plaintiff’s employment.  A change that is
merely contrary to the employee’s interests or not to the employee’s liking is
insufficient.”  (Akers v. County of San Diego (2002) 95 Cal.App.4th 1441,
1455.) 

          “‘Work places are rarely idyllic
retreats, and the mere fact that an employee is displeased by an employer’s act
or omission does not elevate that act or omission to the level of a materially
adverse employment action.’ 
[Citation.]  If every minor change
in working conditions or trivial action were a materially adverse action then
any ‘action that an irritable, chip-on-the-shoulder employee did not like would
form the basis of a discrimination suit.’ 
[Citation.]”  (>Thomas, supra, 77 Cal.App.4th at p. 511.) 


          Even construing Nelson’s allegations
liberally, the May 23, 2007 meeting, her temporary inability to access her
email, and a report to a legal recruiter that she had been terminated do not
constitute substantial adverse changes in the terms and conditions of her
employment.  Thus, the only adverse
employment action Nelson suffered was her termination.  In order to establish a prima facie case,
Nelson must establish a causal link between her protected activities and her
termination.

          As evidence of a causal link, Nelson
relies on Zamel’s alleged statement during the May 2007 meeting that Nelson was
being singled out as “payback” for her having complained about Zamel and other
people at the firm.  Zamel’s statement
does not support an inference that Nelson’s termination was based on her race.  The context indicates that Nelson’s reference
to being “singled out” was a reference to the disciplinary meeting itself,
which took place more than three years before Nelson’s termination.  Moreover, although Zamel’s alleged statement
may indicate a personal grudge behind Zamel’s treatment of Nelson during the
May 2007 meeting, it does not indicate that Nelson’s termination three years
after this meeting was based on race.

          Nelson also argues that Agenbroad’s
finding that Zamel and Takata gave preferential treatment to certain employees
is strong circumstantial evidence of
retaliation.  Agenbroad specifically
stated, however, that he found no evidence that the preferential treatment was
based on a protected status.  Instead, he
found that the preferential treatment was not based on race at all, pointing
out that employees of different races received the preferential treatment. 

          Nelson further contends that the
negative performance evaluations she received after her second EEOC complaint
constitute evidence of retaliation. 
Although the record indicates that Nelson received generally positive
performance evaluations in 2005 and 2006, evaluations of Nelson prior to her
second EEOC complaint indicate that several attorneys had expressed concern
with the very issues raised by Zamel and Takata during the May 2007
meeting. 

          For example, in 2005, Daniel Lucas
rated Nelson as satisfactory or in need of improvement in most areas, stating
that she was late or absent quite often. 
In May 2007, Lovrien gave Nelson a satisfactory evaluation, but he
indicated that Nelson could improve in her attention to detail, setting forth
two examples of important mistakes she had made.  He also stated that Nelson’s attendance and
timeliness needed improvement.  In 2007,
Forgione indicated that Nelson was satisfactory, but he wanted her to improve
in her attendance, stating that she was tardy and absent too often.  He also indicated that she often made
personal phone calls and did not take the initiative to ask for work when she
was available. 

Thus,
contrary to Nelson’s contention, her evaluations prior to her complaint and her
EEOC claims were not uniformly positive, and her contention that Zamel and
Takata “manufactured” the concerns they raised in the May 2007 meeting is belied
by the evidence. 

          The only other performance evaluations
in the record are the negative evaluations that Nelson cites as evidence of
retaliation.  Those three evaluations
were completed in November 2009, which was after Nelson filed the complaint in
this case and her second EEOC claim, and shortly before her termination in June
2010.  The evaluations state that Nelson
was not “particularly interested in being helpful,” “spent most of the day on
personal calls,” was “never at the desk,” “did not touch base,” and “was not
always at her desk when I needed her.” 
The evaluations viewed as a whole indicate a consistency over the years
in the concerns expressed about Nelson’s performance.  Because the concerns expressed by the 2009
evaluations are similar to the concerns raised in the 2005 and 2007
evaluations, they do not support an inference that the negative evaluations
were completed in retaliation for Nelson’s protected activity.

          Nelson also contends that Jones Day
actively solicited the negative evaluations about her, which would support an
inference that Jones Day “was engaged in a search for a pretextual basis for
discipline.”  (Yanowitz, supra, 36
Cal.4th at 1062.)  There is, however, no
evidence to support this contention.  In
fact, one of the 2009 evaluators indicated remorse about giving Nelson a bad
review, expressing the possibility that she had higher standards than normal
because her other secretary was “awesome.” 
There is simply no evidence to support the inference that the negative
evaluations from 2009 were pretextual.

          Even if Nelson had established a prima
facie case by showing a causal link between her termination and her protected
activity, Jones Day has produced a legitimate, nonretaliatory reason for the
adverse employment action.  (>Yanowitz, supra, 36 Cal.4th at p. 1042.)

          Jones Day submitted evidence that
Nelson was terminated as part of a restructuring of the firm.  In spring of 2010, the Los Angeles office had
approximately 30 fewer attorneys than it had in prior years, but the number of
staff was the same, and the increased use of technology had decreased the need
for support staff.  Lovrien, the partner
in charge of the Los Angeles office, stated in a declaration that he and
McKnight therefore decided to eliminate nine secretarial positions and six
legal support positions. 

          As part of the restructuring, all of
the secretaries and other support staff were eligible for termination.  In order to determine who would be
discharged, Lovrien asked personnel in the human resources department to rank
the secretaries, based on criteria such as supervisory evaluations, ability to
work on difficult assignments, attendance, and ability to work with
others.  Nelson was ranked in the bottom
2 out of 43 secretaries.  After Zamel,
Takata, and Miller completed their rankings of the secretaries, Lovrien asked
for an independent review of the evaluations by Lori Bounds, who worked in
Jones Day’s Dallas office.  Bounds
conducted an analysis of the evaluations in order to determine that no race or
protected category would be disproportionately affected by the layoffs.  The evaluations then were reviewed by Lovrien
and McKnight before the final decisions were made.  Nine secretaries were laid off, two of them
African American.  Jones Day has
presented evidence showing a legitimate, nonretaliatory reason for the
action.  The burden therefore shifts back
to Nelson to prove intentional retaliation. 
(Yanowitz, >supra, 36 Cal.4th at p. 1042.)

          Nelson does not dispute that she was
terminated as part of the restructuring of the firm or that the human resources
personnel ranked the secretaries in order to determine which secretaries were
to be discharged.  Instead, she argues
that the employees who ranked the secretaries had previously demonstrated bias
against her by ignoring her complaints, “playing favorites,” and conducting the
May 2007 meeting, which she describes as a “two-hour beat down.”  She also points out that when Lovrien began
planning the reduction in the workforce, he consulted counsel to see if Nelson
could be terminated. 

          Lovrien stated in his deposition that,
after McKnight decided to do a restructuring of the firm, Lovrien consulted
counsel to ensure that it was done in accordance with the law.  He also was concerned about the restructuring
because of Nelson’s ongoing lawsuit against the firm.  The fact that Lovrien consulted counsel
before laying off nine secretaries does not support the inference that the
termination was prompted by a discriminatory motive.

          Moreover, as discussed above, there is
no evidence that Takata and Zamel were motivated by discriminatory animus in
their evaluation of Nelson, other than the “payback” comment, their conduct of
the May 2007 meeting, and their preferential treatment of various employees.  We conclude that Nelson has failed to raise a
triable issue of material fact as to her claim for href="http://www.mcmillanlaw.com/">intentional retaliation.

 

II.      >Violation of Public Policy

          Nelson’s second argument is that she
has raised triable issues of material fact as to her claim for wrongful
termination in violation of public policy. 
Her complaint alleged that she was terminated in violation of public
policy pursuant to FEHA.  In opposition
to summary judgment, she argued that she was terminated in retaliation for
reporting Forgione’s alleged billing fraud. 
On appeal, she relies on the alleged fraud as the basis for her claim.href="#_ftn2" name="_ftnref2" title="">[2]

          To establish a claim for wrongful
termination in violation of public policy, Nelson must show that (1) she was
employed by Jones Day; (2) her employment was terminated; (3) the violation of
public policy was a motivating reason for the termination; and (4) the
termination caused her damages.  (>Haney v. Aramark Uniform Services, Inc.
(2004) 121 Cal.App.4th 623, 641.)

          Nelson’s only evidence that Forgione
engaged in fraud is her declaration stating that he instructed her to complete
his timesheets without giving her sufficient information.  Her declaration states that he provided her
the client name and narrative, but not the amount of time he spent on each
task.  Nelson argues that the California
Penal Code prohibits defrauding another person out of money, citing general
theft statutes, and that the California Rules of Professional Responsibility require
that lawyers act honestly in their dealings with clients.  Her vague allegations do not, however,
constitute sufficient evidence to raise an issue of fact as to her claim that
Forgione engaged in billing fraud.

          Even if Nelson had presented
sufficient evidence that Forgione engaged in fraud, she has presented no
evidence whatsoever that she was terminated in retaliation for reporting this
conduct.  Her declaration indicates that
she reported Forgione’s conduct when she worked for him from 2006 until mid-2007,
and she was not terminated until 2010. 
There is no evidence that her report of Forgione’s conduct was
considered at all in her termination. 
Nelson has failed to raise a triable issue as to her claim for wrongful
termination in violation of public policy.

 

III.     Discrimination
Based on Race and Failure to Prevent Discrimination

          Nelson contends that her claims for href="http://www.fearnotlaw.com/">racial discrimination and failure to
prevent discrimination should proceed to a jury because she presented evidence
that Jones Day’s dealings with her were pretextual.  As discussed above, Nelson has failed to show
that Jones Day’s actions were pretextual. 
She has failed to establish a claim for racial discrimination, and she
cannot claim a failure to prevent discrimination if her claim for
discrimination fails.  (>Thompson v. City of Monrovia (2010) 186
Cal.App.4th 860, 880.)

 

IV.     Intentional
Infliction of Emotional Distress

          Finally, Nelson contends that she has
raised triable issues of material fact as to her intentional infliction of
emotional distress claim.  We
disagree.  “An essential element of such
a claim is a pleading of outrageous conduct beyond the bounds of human decency.  [Citations.] 
Managing personnel is not outrageous conduct beyond the bounds of human
decency, but rather conduct essential to the welfare and prosperity of
society.  A simple pleading of personnel
management activity is insufficient to support a claim of intentional
infliction of emotional distress, even if improper motivation is alleged.  If personnel management decisions are
improperly motivated, the remedy is a suit against the employer for
discrimination.”  (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 80.)  Nelson’s termination was a personnel
management decision and is thus insufficient to support her intentional
infliction of emotional distress claim.

 

>DISPOSITION

                   The
judgment is affirmed.  Respondent is
entitled to costs on appeal.

                   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

 

 

                                                                   WILLHITE,
J.

 

 

                   We concur:

 

 

 

                   EPSTEIN, P. J.

 

 

 

                   SUZUKAWA, J.