Hoey v. New York Life Insurance Company et al

Filing 37

ORDER signed by Senior Judge Lawrence K. Karlton on 7/8/11granting in part and denying in part 14 Motion for Summary Judgment; The court DENIES defendant's motion as to plaintiff's age discrimination claims premised on theories of constru ctive discharge, effective demotion, and hostile work environment and her claim that defendant failed to prevent this discrimination and harassment. The court GRANTS defendant's motion as to plaintiff's retaliation and disability discrimination claims and her claim that defendant failed to prevent retaliation and disability discrimination. (Matson, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BARBARA HOEY,
NO. CIV. S-09-02116-LKK-GGH
Plaintiff,

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v.

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O R D E R

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NEW YORK LIFE INSURANCE CO.
INC., a New York Corporation
and NEW YORK LIFE INSURANCE &
ANNUITY CORPORATION, a Delaware
Corporation,

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Defendants.

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/
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Plaintiff Barbara Hoey (“plaintiff” or “Hoey”) brings claims

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of

discrimination,

retaliation,

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against her former employer. The employer now moves for summary

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judgment on the grounds that there is no evidence from which a

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reasonable jury can find it liable. For the foregoing reasons,

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defendant’s motion is granted in part and denied in part.

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///

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///
1

and

hostile

work

environment

I. BACKGROUND

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Plaintiff Barbara Hoey (“Hoey” or “plaintiff”) sues her former

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employer, defendant New York Life Insurance Company, Inc. (“NYL”

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of

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discrimination under California law. Hoey worked for NYL for

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approximately forty years. Decl. of Barbara Hoey ¶ 1, Ex. 4 to Pl.

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Opp. Mot. Summ. Judg. (“Hoey Decl.”). Plaintiff claims that she was

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constructively discharged on July 17, 2008, when she retired at the

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age of 58 years. Id. at ¶ 17.

“defendant”),

for

age

discrimination

and

disability

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A.

Hoey’s Early Employment with NYL

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Hoey began her employment with NYL when she was approximately

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18 years old. Id. at ¶ 1. In 1993, plaintiff transferred from NYL’s

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Sacramento office to its Roseville office. Id. at ¶ 2. Hoey served

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as the assistant office manager in Roseville. Id. Her supervisor

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was assistant manager Richard Olson (“Olson”) until his retirement

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in April 2006. Id.

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Neither party has presented much evidence of plaintiff’s work

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history through 2004. The only evidence1 submitted by plaintiff is

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Plaintiff has submitted numerous documents in opposition to
defendant’s motion. Some of these documents were produced in
discovery. The court cannot tell which of the documents were
produced in discovery and thus admissions of a party that they are
responsive documents and which were from some other source and this
not authenticated. Of course the court can only consider admissible
evidence. Because of the confusion of source the court does not
give any weight to plaintiff’s exhibits numbered 5-6, 9-15, 17-22.
Plaintiff did authenticate two documents in her declaration, which
the court considers: plaintiff’s exhibits numbered 7 (2004 annual
review), 16 (April 18, 2008 letter to NYL). Plaintiff attempted to
also authenticate her 2005 annual review, which appears to be
included as the exhibit numbered 8. However, her declaration states
that, “Attached to plaintiff’s index of exhibits, nos. 5-7, are
2

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her 2004 performance evaluation.2 In Hoey’s 2004 evaluation, Olson

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indicated that Hoey “[d]emonstrated strength in many skills and

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behaviors and made strong contributions to the General Office.

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Overall [Hoey] has performed responsibilities at a high level of

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competence.” Pl. Ex. 7. Out of five categories for evaluation, Hoey

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was evaluated in the second most favorable category. In the

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specific evaluations, which are measured on a scale from one

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through seven, where one indicates outstanding strength, four

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indicates meets expectations, and seven indicates significant

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development opportunity, plaintiff received six ones, nine twos,

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thirteen threes, and three fours. Id. She did not receive any

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fives, sixes, or sevens. Of note are the ones she received for

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performing all job functions unsupervised, delivering excellent

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service, commitment to quality, accountability, and knowledge of

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the job and the fours she received for personal and professional

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growth and innovation. Id. Innovation is described as, “Sees change

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as an opportunity. Seeks and champions opportunities to improve

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workflow. Anticipates problems and initiates new and better ways

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of doing the job.” Id. Further, Olson made the following comments

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on Hoey’s “outstanding strengths and the achievements and/or

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plaintiff’s 2004 and 2005 annual reviews.” Hoey Decl. ¶ 3. The
exhibits numbered 5 and 6 do not contain any annual reviews. The
exhibit numbered 7 only includes plaintiff’s 2004 annual review.
The court will nonetheless consider the 2005 annual review because
its contents are not determinative of any issue before the court
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As discussed in the following sections, plaintiff has
provided some comparative testimony of Olson’s and Rick Skinner’s
supervisory styles.
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contributions that were not planned or previously identified:”
Barbara’s result-oriented problem solving efforts and a
strong focus in providing excellent customer service
continues to provide her a great respect and
appreciation by the agents and management staff. She
very efficiently does FYC histories for agents and
corrects TREM problems. Her communication and actions
earn customer trust. Barbara assumes an effective team
player’s role in being accountable for the G.O. staff
and demonstrates a commitment to achieving established
objectives. Barbara’s supervisory role in the G.O. has
contributed significantly to very favorable G.O. reviews
and audits. Barbara is extensively involved in
completing performance evaluations for the staff.

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5
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Id.
In

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Hoey’s

2005

evaluation,

Olson

indicated

that

Hoey

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“[d]emonstrated strength in many skills and behaviors and made

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strong contributions to the General Office. Over all [Hoey] has

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performed responsibilities at a high level of competence.” Pl.

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Ex. 8. Out of five categories for evaluation, Hoey was evaluated

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in the second most favorable category. In the specific evaluations,

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which are measured on the same scale used in 2004, plaintiff

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received two ones, eleven twos, ten threes, and six fours. Id. She

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did not receive any fives, sixes, or sevens. Of note are the ones

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she received for accountability and knowledge of the job, the twos

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she

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management/organization of work, and teamwork, and the fours she

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received

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innovation, and leadership. Id. The definition of innovation is

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unchanged from the 2004 evaluation. Id. Further, Olson made the

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following

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achievements

received

for

for

performing

personal

comments
and/or

on

and

Hoey’s

all

job

functions

professional

“outstanding

contributions
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that

unsupervised,

growth,

composure,

strengths

were

not

and

planned

the
or

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previously identified”:
Barbara’s result-oriented problem solving efforts and a
strong focus in providing excellent customer service
continues to provide her a great respect and
appreciation by the agents and management staff.
Barbara’s exceptional experience and insight facilitate
her identifying areas of concern and she has the
knowledge to solve problems. Barbara assumes an
effective team player’s role in being accountable for
the GO staff and demonstrates a commitment to achieving
established objectives. Barbara provides coaching and
guidance to entire GO staff. Barbara is extensively
involved in completing performance evaluations for the
staff.

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Id.

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B.

Hoey’s Employment with NYL after April 2006

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Following Olson’s retirement in April 2006, Rick Skinner

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(“Skinner”) transferred from the Fresno office of NYL to the

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Roseville office where he replaced Olson as assistant manager and

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Hoey’s supervisor. Skinner Dep. 7:11-20. All of the employees but

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one who reported to Skinner at the time of Hoey’s retirement were

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over the age of 40, and most were in their 50s or 60s: Pamela

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Cramer (48), Evelyn Sprague (49), Tina Floyd (51), Jeannie Gregorin

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(52), Sandy Lehrer (57), Judy Drake (59), Jamie Stevens (60), Linda

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Dobson (61 or 63), and Hoey (58). Def. Undisputed Fact No. 25. Hoey

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claims that her problems with NYL began when Skinner transferred

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to Roseville.

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During this time, the Roseville office was increasing in size.

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Def. Undisputed Fact Nos. 27-28. Specifically, between 2006 and

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2008, the number of cases being processed and the number of

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contracts that were handled doubled. Id. This “tremendous growth”

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required Skinner to ensure that Hoey had sufficient training in
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order to manage the office effectively. Id.3

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Starting shortly after his transfer to Roseville, Skinner

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asked Hoey what her plans were for the next three to five years and

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began developing a position of office coordinator, who would report

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to Hoey. Skinner asserted that this was due to the growth in the

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Roseville office. Skinner Dep. at 101:14-103:4. Skinner also

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asserted that he believed it would take three to five years to

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train someone to be able to fill Hoey’s position and, as such,

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wanted to determine Hoey’s plans so he could begin such training

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if necessary. Id. at 113:5-21. At some point, Skinner gave Hoey

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more

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responsibilities. Id. at 114:4-15; Hoey Decl. ¶¶ 5, 9. He added the

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responsibilities of overseeing all IPS operations, individual

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policy services in the general office, and new business and general

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office administrative supporting services. Skinner Dep 114:4-15.

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But,

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responsibilities. Hoey Decl. ¶¶ 5, 9. Specifically, Hoey was no

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longer “allowed [to] hold supervisory meetings with the clerical

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staff, or to provide them [her] monthly Performance Review and

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Planning.” Id. at ¶ 5. Hoey was also “excluded from staff and

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///

responsibilities

he

also

began

and

to

took

remove

away

some

some

of

of

Hoey’s

her

other

supervisory

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The tendentious phrasing of the statement was propounded as
an undisputed fact, and plaintiff did not dispute it. Given
plaintiff’s long and heretofore apparently satisfactory service it
is not at all clear to the court that Skinner has some special need
to insure Hoey’s training was sufficient. Be that as it may, the
court assumes that Skinner had a general obligation relative to
those under his supervision.
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underwriter meetings.” Id. at ¶ 9. Skinner also prepared staff

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evaluations without any input from Hoey. Id. at ¶ 5.

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Hoey complained that Skinner would ask her questions “which

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no one could answer.” Id. at ¶ 5. The only example of such a

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question that plaintiff has provided, however, is that Skinner

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asked Hoey “how things should happen when new people are trained.”

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Id. at ¶ 12. Plaintiff has not explained why this relatively

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straightforward, if broad, question is unanswerable nor is it

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selfevidently unanswerable.4

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Hoey has also declared that she observed Skinner treat older

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women, including herself, with “extreme[] disrespect[].” Id. at

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¶ 4. Additionally, Hoey declared that Skinner told her that, while

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he was manager of the Fresno office, when he learned that a female

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employee who was out on medical leave “was not returning to work

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. . . , he celebrated at work by popping a bottle of champagne.”

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Id. at ¶ 10. Hoey contends that Skinner did so to intimidate her

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into quitting. Id. Further, while in Fresno, an office assistant

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under

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unfairly. Skinner Dep. at 124:14-126:14. The company’s Human

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Resources Department investigated the accusation and, as a result,

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reprimanded Skinner, denied him a raise, and cut his annual bonus

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in half. Id.

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In

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Skinner’s

May

supervision

2006,

six

weeks

complained

following

that

his

he

treated

transfer,

her

Skinner

provided Hoey with a mid-year evaluation. Skinner Dep. 25:19-22.

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4

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Indeed at oral argument plaintiff’s counsel admitted that
the question is answerable.
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During their discussion of this evaluation, Hoey expressed her

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belief that Skinner was trying to force her out. Id. at 26:3-11.

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Specifically, Hoey declared that Skinner told her, “I don’t know

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how long that you will be here.” Hoey Decl. ¶ 5. Skinner has

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testified that she did not indicate that he was trying to force her

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out because of her age. Skinner Dep. 25:23-26:11.5 Hoey also

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contends that Skinner would make condescending comments about her

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work performance every time that he was around her. Id. at ¶ 7.

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On or about May 23, 2006, Hoey told Skinner that she believed

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he was treating her unfairly and expressed serious concerns that

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he was trying to get rid of her or force her out of the company.

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Hoey Decl. ¶ 6. Also in May 2006, plaintiff complained to Gary

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Lamons (“Lamons”), NYL’s Zone Administrative Vice President and

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Skinner’s supervisor, about Skinner’s treatment of her. Hoey Dep.

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261:1-19. Hoey was unable to recall whether she told Lamons that

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she felt that Skinner was discriminating against her on the basis

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of her age. Id.

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On or about November 10, 2006, Skinner and Hoey discussed her

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upcoming vacation and medical leave. Skinner asserts that Plaintiff

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had not told him about any medical condition causing her to take

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the leave. Skinner Dep. at 47:13-48:7. Plaintiff has not asserted

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otherwise. Skinner also testified, however, that Hoey reported to

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him her concern that he was trying to force her out of the company

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during this conversation. Id. at 48:19-49:1.

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5

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Neither party has presented evidence on the content of the
May evaluation.
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On December 20, 2006, Skinner gave Hoey her annual evaluation.

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Id. 31:1-3. His overall evaluation was that Hoey had “consistently

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performed the responsibilities of the position, demonstrated the

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skills and behaviors necessary to contribute to the success of the

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general office.” Id. at 31:7-12. Skinner testified that at this

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point Hoey was not in jeopardy of losing her job. Id. at 31:15-17.

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Nonetheless, her evaluation was not as strong as previous years.

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Hoey was also placed on an action plan in this evaluation. Id. at

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36:17-25. The only evidence plaintiff has presented on this issue

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is that all second line managers and assistant office managers are

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required to have an action plan as part of their job duties. Id.

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It does not indicate a performance issue. Id. Along with this

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evaluation, Hoey complained to Skinner about his change in the

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policy approving vacations from one that was based upon seniority.

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Id. at 52:5-24.

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Skinner met with Hoey to discuss her annual evaluation in

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December 2007. Hoey Decl. ¶ 11. Skinner informed Hoey that she was

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not meeting the standards of an Assistant Office Manager, but was

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rather performing the duties of the lower position of Office

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Coordinator. Id. Hoey interpreted this comment as a demotion. Id.

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After the meeting, on or about December 19, 2007, Hoey wrote a

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comment in response to her annual evaluation noting that she had

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never received such a low evaluation throughout her tenure with

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NYL. Skinner Dep. 66:5–13.

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On January 31, 2008, Hoey and Skinner met to discuss Hoey’s

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work performance. Skinner testified that Hoey was upset during the
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1

meeting, but denies that he treated her with hostility. Id. at

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78:1-86:24. Skinner further testified that Hoey reported during the

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meeting that she felt as though she was having a heart attack. Id.

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Hoey declared that Skinner sat near the door during the meeting,

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almost blocking it such that she was unable to leave. Hoey Decl.

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¶ 12. She contends that he yelled at her when discussing her work

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assignments and then asked her the “unanswerable” question of how

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things should happen when new people are trained. Id. She described

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his demeanor as irrate and enraged. Id. Ultimately, she felt a

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tightness in her chest and found it difficult to breathe. Id. Hoey

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believed that she was having a heart attack. Id. She eventually

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left the conference room and went to her physician. Id. She was

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diagnosed with extreme hypertension, and provided documentation to

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NYL to take medical leave. Id. at ¶ 13.

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C.

Hoey’s Medical Leave and Retirement

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January 31, 2008, was Hoey’s last day working at NYL. Skinner

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Dep.

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O’Sullivan Dep. 41:14-20. After Hoey’s departure, Tina Floyd

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(“Floyd”) assumed the position of Office Coordinator and reported

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directly to Skinner. Skinner Dep. at 103:15-21. Floyd had worked

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for NYL for approximately six years. Id. at 103:22-25. Floyd’s

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salary was significantly lower than Hoey’s salary. O’Sullivan Dep.

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96:23-97:4.

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103:5-9.

Hoey

then

began

approved

medical

leave.

See

On February 1, 2008, Hoey lodged a formal complaint of age

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discrimination

against

Skinner

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department. Hoey Decl. ¶ 13. Later that day, O’Sullivan spoke to
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with

NYL’s

human

resources

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Hoey on the telephone about her claim. Sullivan Dep. 17:3-20. Hoey

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reported to O’Sullivan that Skinner stated to Hoey that he does not

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know how long Hoey will be with NYL and that she is not part of his

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long range plan when he first started working in Roseville. Id. at

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20:7-11. Hoey also reported her concern about Skinner’s change of

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the office policy for approving vacations from one that was based

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upon seniority to some other system and her belief that he was

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doing so to push out older employees. Id. at 29:14-33:1. O’Sullivan

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also documented Hoey’s report that she complained to Skinner’s

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supervisor,

Lamons.

As

it

turned

out

Lamons

dismissed

her

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complaints as a personality conflict. Id. at 35:7-14.6 Hoey further

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complained that Skinner made her afraid to go to work by telling

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her about the large number of underwriters he has fired and that

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he was setting her up for failure. Id. at 38:9-11. Additionally,

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Hoey reported that she had no blood pressure problems until Skinner

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transferred to Roseville and described how she felt that she was

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having a heart attack during the January 31, 2008 meeting. Id.

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Lastly, Hoey reported to O’Sullivan that she believed that Skinner

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was grooming Tina Floyd, who was 51 and seven years younger than

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Hoey, to take her position. Hoey Decl. ¶ 13.

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As a result of this conversation, O’Sullivan investigated

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Hoey’s claim that Skinner celebrated in Fresno after an employee

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6

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There is no evidence that Lemons was aware of the incident
in Fresno when Skinner opened champagne upon a female worker not
returning from medical leave. Dismissing the complaint as a
personality conflict might appear glib if he was aware of it. If
he was not aware of it, it perhaps suggests a failure in
management.
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1

did

not

return

from

2

investigated

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champagne when another employee did not return from medical leave

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and confirmed that corrective action was taken against Skinner

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after the incident. O’Sullivan Dep. at 51:11-24.

Hoey’s

medical
report

leave.

that

Specifically,

Skinner

opened

O’Sullivan

a

bottle

of

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Sometime in March 2008, Skinner removed Hoey’s nameplate from

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her office after some agents had placed urgent documents on her

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desk unaware that she was out on medical leave. Skinner Dep. at

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141:5-21.

O’Sullivan

informed

Skinner

that

doing

so

was

not

10

prudent, and the plate was returned to its original location. Id.

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at 142:24-143:8.

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Also in March 2008, O’Sullivan documented her investigation

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of Skinner. Id. at 70:15-25. She recorded that Skinner admitted to

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having a three to five year plan and that he asked Hoey what her

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commitment was to his management plan. Id. She also wrote that

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Skinner informed her that his management style is to either set up

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his

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O’Sullivan explained this style as one where employees “would . .

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. know what training needs might be so that he can make those

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employees successful, if they failed at something or realize any

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additional potential they have to expand their contribution.” Id.

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O’Sullivan also documented Skinner’s complaint to her that NYL was

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paying Hoey the wage for an Assistant Office Manager, but that she

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was actually only doing the work of an Office Coordinator, which

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is a lower position with less pay. Id. at 92:2-9

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employees

for

success

or

for

failure.

Id.

at

75:2-11.

Hoey’s medical leave was initially scheduled to conclude on
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1

April 28, 2011. O’Sullivan Dep. 66:14-21. On April 18, 2008, Hoey

2

sent

3

documentation from her medical doctor requesting that she continue

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medical leave due to anxiety, depression, and hypertension. Hoey

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Decl. ¶ 15. Hoey has not presented any evidence that she informed

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NYL directly of the reasons she wanted to extend her medical leave

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or that she sought an accommodation from NYL.7

a

letter

to

NYL’s

medical

leave

provider

forwarding

8

On April 20, 2008, Hoey sent O’Sullivan an email stating that,

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“With the help of my doctor and counselor, I have made the decision

10

to retire early. The investigation seems to have gone nowhere. We

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decided it is not worth compromising my health by going back to

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that environment. My plan was to work until age 62. Therefore, I

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feel that this is a forced retirement, I’m requesting I get my

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retirement at age 62 as opposed to 59, since I have been forced out

15

by age discrimination and harassment.” O’Sullivan Dep. 111:14-

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112:2; see also id at 68:4-9, 15-17, 69:4-23. Hoey declares that

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19
20
21
22
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24
25
26

7

Her declaration merely states that she emailed O’Sullivan
requesting a transfer and that Human Resources was aware that she
was on leave for stress-related medical issues. She does not
indicate when in April she made the request nor has she attached
the email. Further, she has not produced any evidence that she
informed NYL directly that she was requesting the transfer as an
accommodation for a disability. While it seems plain that she told
the medical leave provider that Skinner was the source of
plaintiff’s anxiety, there is no evidence as to whether that
information was transmitted to NYL. At oral argument, plaintiff’s
counsel was not able to clarify or provide any reference to the
record indicating that plaintiff made any request for a reasonable
accommodation directly to her employer. Nor did he make any
suggestion that the medical provider was required to deliver that
request to the employer.
13

1

she would have transferred to NYL’s Stockton or Fresno offices.

2

Hoey Decl. ¶ 16.

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II. STANDARD FOR A FED. R. CIV. P. 56 MOTION FOR SUMMARY
JUDGMENT

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5

Summary judgment is appropriate when there exists no genuine

6

issue as to any material fact. Such circumstances entitle the

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moving party to judgment as a matter of law. Fed. R. Civ. P. 56(c);

8

see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970);

9

Secor Ltd. v. Cetus Corp., 51 F.3d 848, 853 (9th Cir. 1995). Under

10
11

summary judgment practice, the moving party

14

always bears the initial responsibility of informing the
district court of the basis for its motion, and
identifying
those
portions
of
“the
pleadings,
depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any,” which it
believes demonstrate the absence of a genuine issue of
material fact.

15

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.

16

R. Civ. P. 56(c)).

12
13

17

If the moving party meets its initial responsibility, the

18

burden then shifts to the opposing party to establish the existence

19

of a genuine issue of material fact. Matsushita Elec. Indus. Co.

20

v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986); see also First

21

Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89

22

(1968); Secor Ltd., 51 F.3d at 853. In doing so, the opposing party

23

may not rely upon the denials of its pleadings, but must tender

24

evidence of specific facts in the form of affidavits and/or other

25

admissible materials in support of its contention that the dispute

26

exists. Fed. R. Civ. P. 56(e); see also First Nat’l Bank, 391 U.S.
14

1

at 289. In evaluating the evidence, the court draws all reasonable

2

inferences from the facts before it in favor of the opposing party.

3

Matsushita, 475 U.S. at 587-88 (citing United States v. Diebold,

4

Inc., 369 U.S. 654, 655 (1962) (per curiam)); County of Tuolumme

5

v. Sonora Cmty. Hosp., 236 F.3d 1148, 1154 (9th Cir. 2001).

6

Nevertheless, it is the opposing party’s obligation to produce a

7

factual predicate as a basis for such inferences. See Richards v.

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Nielsen Freight Lines, 810 F.2d 898, 902 (9th Cir. 1987). The

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opposing party “must do more than simply show that there is some

10

metaphysical doubt as to the material facts . . . . Where the

11

record taken as a whole could not lead a rational trier of fact to

12

find for the nonmoving party, there is no ‘genuine issue for

13

trial.’” Matsushita, 475 U.S. at 586-87 (citations omitted)

14

III. ANALYSIS

15

Plaintiff brings claims of wrongful constructive discharge in

16

violation of the public policies set forth under the California

17

Fair Employment and Housing Act (“FEHA”), age discrimination in

18

violation of FEHA, disability discrimination in violation of FEHA,

19

and unlawful retaliation claims against NYL. Thus, all her claims

20

arise under California law.

21

The California Supreme Court “has adopted the three-stage

22

burden-shifting test established by the United States Supreme Court

23

for trying claims of discrimination . . . .” Guz v. Bechtel Nat.

24

Inc., 24 Cal. 4th 317, 354 (2000). This test is often referred to

25

as the McDonnell Douglas test. Id., see also McDonnell Douglas

26

Corp. v. Green, 411 U.S. 792 (1973). Under this test, plaintiff
15

1

bears the “initial burden to establish a prima facie case of

2

discrimination.” Guz, 24 Cal. 4th at 354. “If, at trial, the

3

plaintiff

4

discrimination arises.” Id. at 355. However “[t]he requisite degree

5

of proof necessary to establish a prima facie case . . . on summary

6

judgment is minimal and does not even need to rise to the level of

7

a preponderance of the evidence.” Wallis v. J.R. Simplot Co.,

8

26 F.3d 885, 889 (9th Cir. 1994).

9

The

establishes

elements

a

of

prima

a

facie

prima

case,

facie

a

case

presumption

of

of

intentional

10

discrimination because of age is that, “(1) [s]he was a member of

11

a protected class, (2) [s]he was qualified for the position sought

12

or was performing competently in the position [s]he held, (3) [s]he

13

suffered

14

demotion, or denial of an available job, and (4) some other

15

circumstance suggests discriminatory motive.” Id. Likewise, the

16

prima facie case of retaliation under the FEHA requires plaintiff

17

to show that “(1) . . . she engaged in a ‘protected activity,’

18

(2) the employer subjected the employee to an adverse employment

19

action, and (3) a causal link existed between the protected

20

activity and the employer’s action.” Yanowitz v. L’Oreal USA, Inc.,

21

36 Cal. 4th 1028, 1042 (2005). Section 12940(h) of the FEHA

22

identifies opposing practices forbidden under the act as a type of

23

protected conduct. Cal. Gov. Code § 12940(h) (West 2011); see also

24

Yanowitz, 36 Cal. 4th at 1042. Finally, the prima facie case for

25

a hostile work environment claim requires plaintiff to show that,

26

“(1) [s]he was a member a protected class; (2) [s]he was subjected

an

adverse

employment

16

action,

such

as

termination,

1

to unwelcome . . . harassment . . . ; (3) the harassment was based

2

on [age]; (4) the harassment unreasonably interfered with [her]

3

work performance by creating an intimidating, hostile, or offensive

4

work

5

harassment.” Thompson v. City of Monrovia, 186 Cal. App. 4th 860,

6

876 (2010) (citations omitted).

environment;

and

(5)

the

[employer]

is

liable

for

the

7

Once a plaintiff establishes a prima facie case, the burden

8

shifts to the defendant to produce a legitimate non-discriminatory

9

reason for its conduct. Guz, 24 Cal. 4th at 355-56 (citations

10

omitted).

The

presumption

of

discrimination

disappears

11

when

employers meet this burden. Id. at 356 (citations omitted).

12

If an employer meets this burden, “The plaintiff must then

13

have the opportunity to attack the employer's proffered reasons as

14

pretexts for discrimination, or to offer any other evidence of

15

discriminatory motive.” Id. (citations omitted). Although the

16

burden of proof remains on plaintiff throughout the burden-shifting

17

analysis, “as a general matter, the plaintiff in an employment

18

discrimination action need produce very little evidence in order

19

to overcome an employer's motion for summary judgment. This is

20

because the ultimate question is one that can only be resolved

21

through a searching inquiry - one that is most appropriately

22

conducted

23

University of Cal. Davis, 225 F.3d 1115, 1124 (9th Cir. 2000). Put

24

differently, given the subtle ways discrimination may manifest

25

itself, any evidence of the required factors leaves resolution of

26

the issue for the trier of fact.

by

a

factfinder,

upon

17

a

full

record.”

Chuang

v.

1

Defendant moves for summary judgment on the grounds that there

2

is no evidence that plaintiff suffered an adverse employment action

3

or a hostile work environment. Alternatively, defendant argues that

4

there is no evidence that plaintiff suffered such an action or

5

environment because of her age. Lastly, defendant contends that

6

plaintiff cannot show pretext for any adverse employment actions.8

7

A.

8

Whether Plaintiff Has Presented Evidence that She
Suffered an Adverse Employment Action or Hostile Work
Environment

9

Plaintiff contends that she suffered two adverse employment

10

actions because of her age and complaints of age discrimination:

11

that she was constructively discharged and effectively demoted. She

12

also

13

environment because of her age.

argues

that

Skinner

subjected

her

to

a

hostile

work

14

The court first addresses whether plaintiff has presented

15

evidence as to whether she suffered adverse employment actions or

16

a hostile work environment, keeping in mind the minimum standard

17

she must meet, and then the court turns to whether she has

18

presented a triable question as to whether plaintiff has presented

19

evidence that defendant acted with a discriminatory intent.

20

1.

Constructive Discharge

21

A constructive discharge “occurs when the employer’s conduct

22

effectively forces an employee to resign. Although the employee may

23
24
25
26

8

At summary judgment, the evidence to show discriminatory
motive in the prima facie case is ordinarily sufficient to show
pretext given the factually intensive inquiry under McDonnell
Douglas. Thus, for the purposes of this motion, the court often
combines both inquiries.
18

1

say, ‘I quit’ [or ‘I retire’], the employment relationship is

2

actually severed involuntarily by the employer’s acts, against the

3

employee’s will.” Colores v. Board of Trustees, 105 Cal. App. 4th

4

1293, 1305 (2003) (quoting Turner v. Anheuser-Busch, Inc. 7 Cal.

5

4th 1238, 1244-45 (1994)). At trial “[i]n order to establish a

6

constructive discharge, an employee must plead and prove, by the

7

usual preponderance of the evidence standard, that the employer

8

either

9

conditions that were so intolerable or aggravated at the time of

10

the employee's resignation that a reasonable employer would realize

11

that a reasonable person in the employee's position would be

12

compelled to resign. [¶] For purposes of this standard, the

13

requisite knowledge or intent must exist on the part of either the

14

employer or those persons who effectively represent the employer,

15

i.e., its officers, directors, managing agents, or supervisory

16

employees.” Turner, 7 Cal. 4th at 1251.

intentionally

created

or

knowingly

permitted

working

17

Here, plaintiff has presented evidence that Skinner yelled at

18

her and was physically threatening towards her during a meeting.

19

The seriousness of that conduct may be inferred by the fact that

20

she took medical leave immediately following that meeting. She

21

eventually, accepted an early retirement rather than return to work

22

under Skinner.9 A reasonable jury could determine that plaintiff

23
9

24
25
26

The court notes that the present evidence suggests that
plaintiff “retired” early before Human Resources completed its
investigation, and without knowing if her request for extended
medical leave or a transfer was approved. Whether this evidence
demonstrates a lack of constructive discharge, or a reasonable
determination that her request would not be honored, or some other
19

1

was

constructively

2

defendant’s motion for summary judgment on this ground is denied.

3

2.

discharged

from

this

evidence

and,

thus,

Effective Demotion

4

An adverse employment action “requires a substantial adverse

5

change in the terms and conditions of plaintiff’s employment.”

6

Holmes v. Petrovich Development Co., 191 Cal. App. 4th 1047, 1962

7

(2011) (internal quotations and citation omitted). Plaintiff has

8

presented evidence that shortly after Skinner transferred to

9

Roseville, he altered her work responsibilities.10 As discussed

10

above, he added the responsibility of overseeing certain operations

11

and services, but also removed Hoey’s supervisory authority over

12

clerical employees in the Roseville office. The court finds that

13

a reasonable jury could conclude that the removal of supervisory

14

authority constitutes an adverse employment action.
3.

15

Hostile Work Environment

“To prevail on a hostile work environment claim, the plaintiff

16
17

must

show

that

the

harassing

conduct

was

severe

enough

or

18

sufficiently pervasive to alter the conditions of employment and

19
20
21
22
23
24
25
26

conclusion, is for the trier of fact.
10

Plaintiff may also be arguing that Skinner’s decision to
adjust the Roseville office’s vacation policy from a seniority
based system to one where all employees, not just those who have
worked for NYL the longest, may take time off over the Christmas
holidays, constitutes an adverse employment action. It appears from
plaintiff’s brief, however, that this decision is merely relevant
as alleged evidence of age-based animus. For this reason and for
the purposes of this motion only, the court treats the evidence of
the change to the vacation policy as evidence of age-based animus
and does not consider whether adjustments to the vacation policy
could constitute an adverse employment action.
20

1

create a work environment that qualifies as hostile or abusive to

2

employees because of” her age. Ramirez v. Wong, 188 Cal. App. 4th

3

1480, 1487 (2010) (internal quotations and citation omitted). For

4

the reasons discussed above concerning plaintiff’s constructive

5

discharge claim, plaintiff has presented evidence of a triable

6

question as to whether she suffered a hostile work environment.

7
8

Whether Plaintiff Has Presented Evidence that She
Suffered these Adverse Employment Actions and Hostile
Work Environment Because of Her Age

9

1.

10

B.

Constructive Discharge and Hostile Work Environment

Defendant argues that even if there is evidence from which a

11

reasonable

jury

could

conclude

12

constructive discharge or hostile work environment, NYL is still

13

entitled to summary judgment on these claims because there is no

14

evidence that this conduct occurred because of plaintiff’s age.

15

Plaintiff, however, has presented some evidence from which a

16

reasonable jury could infer that Skinner’s conduct at the January

17

2008 meeting, which supports both her constructive discharge and

18

hostile work environment claims, was motivated by age-based animus.

19

Specifically, plaintiff has presented evidence that (1) Skinner

20

questioned plaintiff as to how long plaintiff intended to work for

21

NYL suggesting she might not be prepared for the long run;

22

(2) Skinner altered the vacation approval policy in such a way that

23

disproportionately affected older workers; and (3) Skinner promoted

24

a younger woman with significantly less experience than plaintiff

25

to a lower paid position that assumed all of plaintiff’s duties

26

while Hoey was on medical leave. Thus, defendant’s motion to
21

that

plaintiff

suffered

a

1

dismiss is denied as to plaintiff’s age discrimination claims

2

premised on constructive discharge and hostile work environment.
2.

3

Effective Demotion

4

Defendant moves for summary judgment on this claim on the

5

grounds that there is no evidence that demonstrates pretext. At

6

summary judgment, the evidence plaintiff needed to provide under

7

the prima facie case for discriminatory motive and the evidence for

8

pretext are identical because the necessary showing is quite

9

minimal. For this reason, it does not matter on summary judgment

10

whether defendant has produced a legitimate business interest in

11

removing Hoey’s supervisory responsibilities. Rather, the relevant

12

inquiry is whether plaintiff has presented any evidence of a

13

discriminatory motive. For the reasons discussed in the previous

14

section, including Skinner’s comments to Hoey and her replacement

15

by a younger employee, the court finds that plaintiff has presented

16

a triable question on this claim, and summary judgment on it is,

17

thus, denied.

18

C.

19

Whether Plaintiff Has Presented Evidence that She
Suffered these Adverse Employment Actions Because She
Complained About Age Discrimination

20

Plaintiff presented evidence that she complained to Skinner

21

and his supervisor, Lamons, about Skinner’s treatment of her in May

22

2006. This was before the meeting where Skinner allegedly yelled

23

at her and was physically aggressive towards her, but after Skinner

24

had taken from her significant supervisory authority. Plaintiff,

25

however, testified that she could not recall whether she complained

26

///
22

discrimination.11

1

about

age

2

presented evidence of a triable question as to whether she was

3

retaliated for complaining about age discrimination because she

4

failed

5

discrimination before she suffered an adverse employment action.

6

Thus,

7

plaintiff’s retaliation claim.

to

present

defendant’s

As

evidence

motion

for

a

that

result,

she

summary

plaintiff

complained

judgment

is

has

about

granted

not

age

on

8

D.

Whether Plaintiff Sought a Reasonable Accommodation

9

Plaintiff also brings a claim of failure to engage in the

10

interactive process. An employer violates FEHA if it “fail[s] to

11

engage in a good faith interactive process with the employee to

12

determine an effective reasonable accommodation if an employee with

13

a known . . . disability requests one.” A.M. v. Albersons, LLC,

14

178 Cal. App. 4th 455, 463 (2009) (citing FEHA, Cal. Gov. Code

15

§ 12940). Here, plaintiff has presented evidence that in April

16

2008, she requested a transfer from NYL. She has not presented

17

evidence as to whether she informed NYL that she was seeking a

18

transfer as an accommodation for her disability. Rather, she has

19

only presented evidence that on April 18, 2008, she informed a

20

third party medical leave provider that her medical condition

21

prevented her from returning to work under Skinner. Two days after

22

contacting the third party, on April 20, 2008, plaintiff emailed

23

O’Sullivan that she was retiring. There is no evidence as to the

24
11

25
26

It is uncontested that plaintiff complained about age
discrimination while on medical leave. Plaintiff has not, however,
identified any retaliatory conduct that occurred following that
date.
23

1

relationship between the medical provider and the employer. In its

2

absence the court must give all reasonable inferences to the

3

plaintiff. Accordingly, it assumes that the third party provider

4

notified NYL about plaintiff’s expressed inability to work under

5

Skinner for health reasons. Nonetheless, she resigned two days

6

later, which is hardly enough time to determine that further delay

7

was futile. Thus, defendant’s motion for summary judgment on

8

plaintiff’s failure to engage in the interactive process claim is

9

granted.

10

D.

Failure to Prevent

11

A failure to prevent discrimination and harassment claim must

12

be supported by a specific factual finding that discrimination or

13

harassment actually occurred at plaintiff’s workplace. Trujullo v.

14

North County Transit Dist., 63 Cal. App. 4th 280, 288-89 (1998).

15

Defendant’s only argument for judgment on this claim is that

16

plaintiff’s other claims fail. Thus, the court grants summary

17

judgment for defendant on plaintiff’s claims that NYL failed to

18

prevent retaliation and to prevent disability discrimination. The

19

court denies defendant’s motion as to plaintiff’s claim for failure

20

to prevent age discrimination.

21

IV. CONCLUSION

22

For the foregoing reasons, the court orders as follows:

23

(1)

GRANTED IN PART and DENIED IN PART.

24
25
26

Defendant’s motion for summary judgment (Doc. No. 14) is

(2)

The court DENIES defendant’s motion as to plaintiff’s
age

discrimination

claims
24

premised

on

theories

of

1

constructive discharge, effective demotion, and hostile

2

work environment and her claim that defendant failed to

3

prevent this discrimination and harassment.

4

(3)

The court GRANTS defendant’s motion as to plaintiff’s

5

retaliation and disability discrimination claims and her

6

claim that defendant failed to prevent retaliation and

7

disability discrimination.

8

IT IS SO ORDERED.

9

DATED: July 8, 2011.

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
25