Elkandary v. Wells Fargo

Filed 5/2/07 Elkandary v. Wells Fargo 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Los Angeles County. William Highberger, Judge. Affirmed.

Law Offices of William B. Hanley and William B. Hanley for Plaintiff and Appellant.

Sanchez & Amador, Richard S. Amador and Stephanie A. Collins for Defendants and Respondents.

__________________________

SUMMARY

The trial court granted summary judgment on the plaintiffs retaliation claim, and the plaintiff appeals. We affirm.

FACTUAL AND PROCEDURAL SYNOPSIS[1]

In September 2001, Wells Fargo hired Dina Elkandary as a home mortgage associate (HMA) at its Beverly Hills (Canon) Home Loan office. She had never worked in the mortgage industry before. As an HMA, Elkandary assisted home mortgage consultant (HMC) Jerry Mekerdichian.

In April 2002, Marc Williams was assigned to manage the Canon office. According to Elkandary, on two or three occasions in mid- to late-2002, Williams stood too close to her while showing her something on the computer, and his sweat was dripping. A couple of weeks later, in reminding her of a meeting, Williams said she should feel free to wear jeans. You wouldnt want to wear panty hose and turn on all the men.

In late June, Elkandary asked Williams for a raise. He commented: Oh, you live in Beverly Hills. How could you afford that on this salary? Do you have a sugar daddy? When Elkandary told him she needed to make more money, he suggested that she ask the HMC she was assisting (Jerry Mekerdichian) for a commission-sharing arrangement under Wells Fargos commission policy, and said he would review her request for a raise.

On July 1, Elkandary contacted Wells Fargo Human Resources to complain about Williams comments and his standing too close and was referred to Wells Fargo Employee Relations. Elkandary spoke with an employee relations consultant (Debra Mitchell) and her assistant (Tami Pattison) about her complaints. Elkandary said Williams had also harassed her by asking whether she had completed a certain required test rather than check a report which would have confirmed that she had done so. Mitchell said Wells Fargo would investigate Elkandarys complaints; she also basically asked Elkandary: Is there anything that you did to bring this upon yourself?

In conducting her investigation, Mitchell contacted Williams area manager (Clay Behm), the HMC for whom Elkandary worked (Jerry Mekerdichian) and one of Elkandarys co-workers (Tracy Sutton). Mitchell was unable to conclude Williams had sexually harassed or discriminated against Elkandary. According to Behm, Williams had admitted making the sugar daddy comment, but Mitchell testified that Behm had not mentioned it to her, and, if he had, she would have investigated further and would have interviewed Behms supervisor.

In mid-July, Elkandary received a pay increase from $30,000 to $36,000 per year, and, as additional compensation, she began receiving the maximum allowable percentage of commissions received by the HMC she was assisting.

In November, Elkandary met with Williams to request a promotion to HMC. Williams agreed to Elkandarys request, and Wells Fargo promoted Elkandary in January 2003. As a result of Elkandarys promotion, Jerry Mekerdichian no longer had an HMA so Elkandary assisted him for about two months as a temporary solution.[2] During this time, Elkandary was paid more than $4,000 per month.

When Elkandary became an HMC, she was told of Wells Fargo policy requiring (1) that loans other than home purchases must be locked for 60 days and (2) that application fees must be collected up front, but she was not required to comply with these provisions initially. On February 12, Williams e-mailed Elkandary, noting that while she had not been required to collect fees for her first month as an HMC to get a jump start on creating a pipeline of loans, she would need to start collecting money with any loan registered after 2/15/03. She was further advised that she needed to comply with loan lock requirements because as you are beginning to experience, we [Wells Fargo] are still not delivering refinances within a 30-day timeframe.[3] Williams congratulated Elkandary on her quick start and for submitting 8 loans for $4,871,000. Unbelievable for someone in their first month.

On February 28, Williams sent Elkandary a reminder, stating Please remember ther[e] are no 30-day locks except on purchases. That same day, Elkandary answered the e-mail by stating: And with regards to the 60-day lock, I will start locking refis at 60 day[s].

On March 14, Elkandary received a confidential Performance Improvement Plan (PIP) for failing to collect application fees up front, failing to lock refinance loans for 60 days and for failing to submit loan packages for branch compliance review.[4] The three big producers in the Canon office (Kerry Sisson, Mark Mekerdichian and Jerry Mekerdichian) were not required to lock their loans at 60 days and collected application fees upfront at their discretion.

After March, Williams made comments about Elkandarys check, such as: Oh, this is a big paycheck. I bet you never got paid that much before. [] What are you going to do, buy yourself a new dress? Reward yourself and buy a new dress?

On another occasion, after Williams decided to have the office employees pictures taken, he said Elkandarys picture looks like it should be in another magazine. When she asked what he meant, he said, Oh, nothing. A dating magazine.

In mid-2003, Williams told another HMC (Kerry Sisson) that he was struggling to look away from [Elkandarys] legs, and Sisson later relayed this comment to Elkandary.

Williams instructed his assistant to copy Elkandarys loan files, reviewed them (although he did not do so for the other HMCs) and made notations for underwriters. As branch manager, Williams was responsible for ensuring that loan applications submitted to Wells Fargo were accurate and in compliance with company policies. In his experience, new HMCs were more likely to make errors on loan applications and, given the backlog of applications at the time, errors or missing information could considerably slow the loan underwriting and approval process. Elkandary was the only new HMC at the Canon office at the time.

Williams prevented Elkandary from sending out pre-approved Wells Fargo flyers to areas he said were saturated. He locked the postage meter preventing all HMCs from using it. Williams opened Elkandarys mail to see how she was marketing herself, refused to hire Elkandary an assistant and refused to pay for a full-page color insert with Elkandarys picture in the Los Angeles Times. Wells Fargo hires assistants (HMAs) to assist HMCs who have consistent high performance over an extended period; in hiring an HMA, the bank assumes an obligation to pay the employees salary and benefits and would not want to have to fire an HMA if an HMC to which he or she was assigned was not so profitable as to support such an expense. Williams also refused Elkandarys request for a private office although one was vacant.

In July, Matthew Jensen (MAP Center team lead) screamed at Elkandary, threatened she could not call again if she did not stop calling about her loans and hung up on her. Sharla Young at the MAP Center was not helpful and did not work in a timely manner. Elkandary had no evidence that they knew about her complaints regarding Williams.

That month, Elkandary asked Behm for a transfer out of the Canon office, but he had her speak with Ken Vils who took over Behms area manager position and nothing happened.

In October, Williams transferred out of the Canon office, and Cliff Collins replaced him as branch manager. Elkandary dropped her transfer request as moot.

In November, Elkandary and Mark Mekerdichian (the brother of Jerry Mekerdichian whom Elkandary was dating) attended an HMC meeting in the Canon office. Elkandary said hello to Mark Mekerdichian. In response, he made a psh, psh sound and waved Elkandary away without saying anything. After work, Elkandary called Mark Mekerdichian and left him the following voice mail message: Dont you ever speak to me this way, in a disrespectful way, or Ill kick your fucking ass.

According to Elkandary, Mark Mekerdichian left a voice mail on his brother Jerrys cell phone, stating: Tell your bitch girlfriend to apologize or I will make sure that she is fired. Mark Mekerdichian then got the telephone number for Human Resources from Williams and called the following Monday to report the incident. About a week later, Collins informed Elkandary that Wells Fargo Corporate Security wanted to meet with her, and this meeting took place the following day, on December 2. Elkandary admitted that she made the phone call and the statement attributed to her, but said it was a personal/family matter. She indicated her relationship with Jerry Mekerdichian and said she had no intention of harming Mark Mekerdichian. Roger Pida of Corporate Security told Elkandary: I dont think you understand what you did and told her that her actions ha[d] consequences.

After the meeting, Collins told Elkandary she would have to work from home. She asked whether Mark Mekerdichian would also have to work from home but was told he would not. She asked whether they both should be required to work from home if Wells Fargo was investigating. Collins said he did not know. Elkandary then wrote a resignation letter at the meeting. According to Elkandary, she could not work from home and was effectively forced to resign.

After receiving a right to sue letter from the Department of Fair Employment and Housing, Elkandary filed a complaint against Wells Fargo and Williams, asserting causes of action for sexual harassment, constructive wrongful termination in violation of public policy, hostile work environment, intentional infliction of emotional distress, negligent infliction of emotional distress and retaliation. Wells Fargo and Williams answered, and the parties conducted discovery. Wells Fargo and Williams then moved for summary judgment or, in the alternative, summary adjudication. Over Elkandarys opposition, the trial court granted summary judgment.

Elkandary appeals.

DISCUSSION

On appeal after a motion for 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. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.)

On this record, summary adjudication was properly granted on Elkandarys retaliation claim.[5]

[T]o be actionable, the retaliation must result in a substantial adverse change in the terms and conditions of the plaintiffs employment. A change that is merely contrary to the employees interests or not to the employees liking is insufficient. (Akers v. County of San Diego(2002) 95 Cal.App.4th 1441, 1455 (Akers); see also Yanowitz v. LOreal USA, Inc. (2005) 36 Cal.4th 1028, 1052 (Yanowitz) [an adverse employment action must materially affect the terms, conditions or privileges of employment to be actionable].)

[T]he significance of particular types of adverse actions must be evaluated by taking into account the legitimate interests of both the employer and the employee. Minor or relatively trivial adverse actions or conduct by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment and are not actionable, but adverse treatment that is reasonably likely to impair a reasonable employees job performance or prospects for advancement or promotion falls within the reach of the antidiscrimination provisions of [Government Code] sections 12940[, subdivisions] (a) and 12940[, subdivision] (h). (Yanowitz, supra, 36 Cal.4th at pp. 1054-1055.) Requiring an employee to prove a substantial adverse job effect guards against both judicial micromanagement of business practices, [citation] and frivolous suits over insignificant slights. [Citations.] (Akers, supra, 95 Cal.App.4th at p. 1455.)

Prior to her resignation, the entirety of the actions about which Elkandary complains fail to satisfy the standard of a substantial adverse change in the terms and conditions of her employment.[6] A mere offensive utterance or even a pattern of social slights by either the employer or coemployees cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment for purposes of [Government Code] section 12940[, subdivision] (a) (or give rise to a claim under section 12940 [subdivision] (h)). (Yanowitz, supra, 36 Cal.4th at p. 1054.) [A] mere oral or written criticism of an employee . . . does not meet the definition of an adverse employment action under [the] FEHA. (Akers, supra, 95 Cal.App.4th at p. 1457.) A statutory claim for retaliation may be predicated on an unfavorable evaluation only where the employer wrongfully uses the negative evaluation to substantially and materially change the terms and conditions of employment . . . . (Ibid.)

While the Legislature was understandably concerned with the chilling effect of employer retaliatory actions and mandated that FEHA provisions be interpreted broadly to prevent unlawful discrimination, it could not have intended to provide employees a remedy for any possible slight resulting from the filing of a discrimination complaint. (Akers, supra, 95 Cal.App.4th at p. 1455.) Mere idiosyncrasies of personal preference are not sufficient to state an injury. (McRae v. Department of Corrections and Rehabilitation (2006) 142 Cal.App.4th 377, 393, internal quotations and citation omitted.)

As for the phone message she admitted leaving for another Wells Fargo employee, it was Elkandarys own conduct which precipitated and necessitated Wells Fargos investigation. Wells Fargo did not terminate her; she resigned the same day, claiming she had no choice. She presented no evidence, however, to show that the investigation would have taken so long as to adversely impact her employment. Elkandary failed to rebut Wells Fargos presentation of evidence of its legitimate business reason for having her work at home in connection with its investigation. Her unsubstantiated belief that Wells Fargos reasons were pretextual was insufficient to defeat summary judgment. She was required to offer substantial evidence that the stated nondiscriminatory reason for its action was untrue or pretextual or that Wells Fargo acted with discriminatory animus or some combination of the two, but failed to do so. Accordingly, summary judgment was proper. (Morgan v. University Regents of California (2000) 88 Cal.App.4th 52, 75.)

DISPOSITION

The judgment is affirmed. Wells Fargo is entitled to its costs of appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WOODS, J.

We concur:

JOHNSON, Acting P.J.

ZELON, J.

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Analysis and review provided by Poway Property line Lawyers.

[1] In performing our de novo review, we view the evidence in a light favorable to Elkandary as the losing party and resolve any evidentiary doubts or ambiguities in her favor. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.)

[2] Wells Fargo fired Jerry Mekerdichian in March. Elkandary and he then began dating.

[3] During this time, the Southern California home mortgage industry was in the midst of a major boom period with extremely high volume and Wells Fargo was having trouble processing loans within a 30-day period.

[4] Elkandary says she was told she would be fired if she did not sign the PIP.

[5] This is the only cause of action on which Elkandary presents argument, and she has thus waived any claim of error as to her other causes of action.

[6] The trial court specifically concluded that the conduct of which Elkandary complained did not constitute sexual harassment in granting summary adjudication of Elkandarys related claims. Elkandary did not challenge this ruling.