The opinion of the court was delivered by: VAUGHN WALKER, District Judge
Plaintiff Betsy Taub ("Taub") sued her employer, defendant
Fleishman-Hillard, Inc, ("Fleishman-Hillard"), in California
state court, alleging age discrimination under California's Fair
Employment and Housing Act ("FEHA"), wrongful termination in
violation of public policy and intentional infliction of
emotional distress. Not of Rem (Doc #1), Ex A. Fleishman-Hillard
then removed the case to federal court based on diversity
jurisdiction. Id. Now before the court is Fleishman-Hillard's
July 11, 2005, motion for summary judgment as to all of Taub's
claims. Mot SJ (Doc #29). Taub has not opposed dismissal of the
claim for intentional infliction of emotional distress. Opp SJ
(Doc #35) at 25. For the reasons set forth below,
Fleishman-Hillard's motion is GRANTED. I
In 1996, Taub began working as a public relations associate at
the Emeryville, California, office of UpStart Communications, Inc
("UpStart") when she was fifty years old. Taub Decl (Doc #37) at
¶¶ 1, 2. Taub's duties at UpStart were to provide public
relations services to UpStart's technology-industry clients. Taub
Depo (Doc#32-3) at 28:2-18, 39:3-16, 48:19-21.
In February 1999, Fleishman-Hillard acquired UpStart, at which
time there were between forty-five and fifty UpStart employees.
Id at 46:18-47:1; Taub Decl at ¶ 2. These employees, including
Taub, appear to have stayed on to work at the Emeryville office,
and Taub continued to perform the same job duties that she had
performed at UpStart. Taub Depo at 43:11-14, 46:18-47:1.
Taub worked at the Emeryville office until December 2002, when
Fleishman-Hillard transferred Taub and several other former
UpStart employees to work in the technology group in its San
Francisco office. Id at 42:20-43:2. By that time, Taub was one of
only thirteen former UpStart employees still employed by
Fleishman-Hillard. Id at 48:7-10. UpStart had focused exclusively
on technology-industry clients, and consequently, the 2001
downturn in the technology industry had forced many former
UpStart employees to leave Fleishman-Hillard. Id at 48:11-49:13.
At the time of her transfer to the San Francisco office, Taub was
spending all of her time working on two technology-industry
client accounts: Novadigm and Wise Solutions. Id at 49:24-50:4.
In February 2003, Taub lost the Wise Solutions account because
Wise Solutions took its public relations work in-house. Id at
163:4-9. Taub also informed management that she expected Novadigm to cut back its budget. Id at 73:10-73:24. Although Taub
worked hard to find other accounts on which to work, her efforts
were unsuccessful. Id at 163:21-164:1; Kundred Depo (Doc ##46-53)
One of the Fleishman-Hillard employees that Taub contacted in
search of work was Nancy Morrison ("Morrison"), a Senior Vice
President in the technology group. Morrison Depo (Doc ##54-56) at
31:1-6. Morrison held between one and two meetings per week aimed
at generating new business, and Taub attended one such meeting
concerning a prospective client. Id at 24:21-26:3. Although
Morrison claims that she invited Taub to these meetings, Morrison
admits that Taub was not invited to all of them. Id at 24:21-23;
25:19-26:10; Taub Decl at ¶ 5. According to Morrison, invitations
to the meetings were based on whether the employee's skill set
best matched the prospective client. Morrison Depo at 27:6-10.
Taub claims that she was frozen out of the meetings because of
her age. Opp SJ at 5-8.
In April 2003, Curt Kundred ("Kundred"), the General Manager in
charge of San Francisco operations, proposed to his boss, Bill
Anderson, that Taub and two other former UpStart employees should
be fired. Doc #32-5 at 4:7-17; 131:7-16. On April 28, Barbara
Axmacher ("Axmacher," at that time Barbara Ruberg), a member of
the Talent Development Department in Fleishman-Hillard's St Louis
office, emailed Anderson stating that she had spoken to Kundred
and that Taub and two others were to be let go on April 30.
Ackerman Decl (Doc #41), Ex G. The email stated, "All three
[employees] are over the age of 40 but we feel confident these
are the people we need to let go at this time." Id. Management ultimately decided against terminating Taub,
however, because of concerns that too many UpStart employees were
being let go. Doc #32-5 at 129:1-4.
In July and August of 2003, Novadigm cut back its public
relations budget. Taub Depo at 163:4-20; 164:12-18. Taub
continued to contact others in the office about her need for work
but was unable to obtain any other significant assignments. Id at
164:19-165:3. Because Wise Solutions was no longer a client and
Novadigm had cutback its budget, Taub did not meet her billable
hours goals in July and August of 2003. Id at 164:7-18. After
discussions with Taub's supervisors, Kundred decided to terminate
Taub. Kundred Decl (Doc #32-1) at ¶ 5. Noting in an August 22,
2003, email that Taub was not "deployable to life sciences or
other groups," Axmacher relayed Kundred's desire to terminate
Taub and one other employee in the technology group to Agnes
Giaconda, head of the Talent Development Department. The email
stated: "Betsy [Taub], who is over 60, has been cut back from
accounts she was working and was removed from previous layoff
lists because we felt there was too much focus on letting former
UpStart people go. Neither [employee] is working on much else and
based on their skill sets, there is no other work for them."
On August 27, 2003, Fleishman-Hillard posted on hotjobs.com an
advertisement for an Account Supervisor, a position that was one
level below Taub's position. Taub Decl, Ex B. On September 3,
2003, Taub, who was fifty-seven years old, and the other
employee, who was twenty-eight years old, were terminated. Taub
Decl at ¶ 1; Kundred Decl at ¶¶ 5-6. II
In reviewing a summary judgment motion, the court must
determine whether genuine issues of material fact exist,
resolving any doubt in favor of the party opposing the motion.
"[S]ummary judgment will not lie if the dispute about a material
fact is `genuine,' that is, if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party."
Anderson v. Liberty Lobby, 477 US 242, 248 (1986). "Only
disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of
summary judgment." Id. And the burden of establishing the absence
of a genuine issue of material fact lies with the moving party.
Celotex Corp v. Catrett, 477 US 317, 322-23 (1986). Summary
judgment is granted only if the moving party is entitled to
judgment as a matter of law. FRCP 56(c).
The nonmoving party may not simply rely on the pleadings,
however, but must produce significant probative evidence, by
affidavit or as otherwise provided in FRCP 56, supporting its
claim that a genuine issue of material fact exists. TW Elec Serv
v. Pacific Elec Contractors Ass'n, 809 F2d 626, 630 (9th Cir
1987). The evidence presented by the nonmoving party "is to be
believed, and all justifiable inferences are to be drawn in his
favor." Anderson, 477 US at 255. "[T]he judge's function is not
himself to weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for
trial." Id at 249. III
FEHA prohibits the discharge of an employee because of the
employee's age. Cal Gov Code § 12940(a). Because of the
similarity between FEHA and federal employment discrimination
statutes, California courts look to pertinent federal precedent
in applying FEHA. Guz v. Bechtel National, Inc, 24 Cal 4th 317,
354 (2000). In particular, in employment discrimination cases
that rely entirely on circumstantial evidence, California courts
apply the three-stage burden shifting test the United States
Supreme Court established in McDonnell Douglas Corporation v.
Green, 411 US 792 (1973), and subsequent cases. Guz,
24 Cal 4th at 354.
Under the test, a plaintiff must first establish a prima facie
case by presenting evidence sufficient to give rise to an
inference of age discrimination. Id at 354-56. This creates a
presumption of age discrimination and shifts the burden to the
employer to produce evidence of a non-discriminatory reason for
its employment decision. Id. If the employer meets this burden,
the presumption created by the prima facie case ...