United States District Court, N.D. California
November 7, 2005.
BETSY TAUB, Plaintiff,
FLEISHMAN-HILLARD, INC et al, Defendants.
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 disappears and
the employee must then show that the employer's proffered reason
is a pretext for age discrimination. Id.
Fleishman-Hillard makes two arguments to support its motion for
summary judgment. First, Fleishman-Hillard contends that Taub has
not established a prima facie case of discrimination because she
has not produced evidence that her discharge occurred under
circumstances giving rise to an inference of age discrimination.
Mot SJ at 10-12. Second, Fleishman-Hillard claims that even if
Taub could establish a prima facie case, Taub has not presented
any evidence that Fleishman-Hillard's justification for terminating her was pretextual. Id at 17-22. The court will
examine each of these claims in turn.
The degree of proof necessary to establish a prima facie case
on summary judgment is "minimal," and "does not even need to rise
to the level of a preponderance of the evidence." Wallis v. JR
Simplot Co, 26 F3d 885, 889 (9th Cir 1994). To establish a prima
facie case, a plaintiff must show that she was: (1) over age
forty; (2) performing her job in a satisfactory manner; (3)
discharged; and (4) replaced by a substantially younger employee
with equal or inferior qualifications. Rose v. Wells Fargo &
Company, 902 F2d 1417, 1421 (9th Cir 1990).
Taub has presented evidence that she was over forty years old
and was discharged, thus establishing elements one and three of a
prima facie case. She has also produced some evidence of the
second element, satisfactory performance. For instance, Morrison
testified that Taub's performance did not warrant a performance
improvement plan. Morrison Depo at 45:8-12. And Kundred states
that Taub "was not terminated because of `poor performance.'"
Kundred Supp Decl (Doc #58) at ¶ 7. Nonetheless, a May 2003
evaluation stated that Taub should "[l]earn to better manage her
time on Novadigm so she can take on additional accounts." Doc
#32-2. This suggests that Taub's inability to secure new work may
stem from her inefficient efforts elsewhere.
The review contained a number of other criticisms of Taub's
performance (e.g., Taub "isolates herself in her office"
inadequately "interact[ing] with the rest of the San Francisco
office," "inappropriately reached out to Claudia Carasso about Claudia returning to the agency," "needs to spend more time with
her supervisor and peers to resolve what she doesn't understand,"
"needs to learn how to achieve goals from the client during the
normal business day," needs to "demonstrate the same or
comparable capabilities of other managing supervisors in the San
Francisco office"). Id at 11-12. This review covered the period
up to May 2003, two months before Novadigm cut back its public
relations budget and Taub failed to meet her billable hours
goals. This record fails to establish the satisfactory
performance prong of Taub's prima facie case.
But even if the court assumes for purposes of this motion that
Taub performed her job in a satisfactory manner, she has not
shown that she was replaced by a younger worker. Although
Fleishman-Hillard posted an advertisement for an Account
Supervisor on hotjobs.com seven days before Taub was terminated,
Taub conceded that the Account Supervisor position was one level
below Taub's position of Managing Supervisor and that an Account
Supervisor could only handle thirty percent of Taub's Novadigm
work. Taub Decl, Ex B; Taub Depo at 234:12-23. And although
Fleishman-Hillard hired a Senior Account Executive in the
technology group less than a month after Taub was terminated,
that position was two levels below Taub. Ackerman Decl, Ex D;
Kundred Depo at 50:1-16. Presumably, an employee in that position
could handle only a fraction of Taub's duties.
The fourth element of a prima facie case replacement by a
younger worker is not required in every case. In cases in which
the termination was part of a reduction in workforce, the
employee may satisfy the replacement prong by showing "through circumstantial, statistical, or direct evidence that the
discharge occurred under circumstances giving rise to an
inference of age discrimination." Rose, 902 F2d at 1421. The
employee can establish this inference by showing either that the
employer had a continuing need for the employee's services
because the employee's duties were still being performed, or by
showing that others not in the protected class were treated more
favorably. Nidds v. Schindler, 113 F3d 912, 917 (9th Cir 1996).
Failure to show replacement by a younger worker is not alone
fatal to Taub's case because the evidence shows that her
termination was part of a reduction in workforce.
Fleishman-Hillard has cited losses in its technology practice in
the middle of 2003 and its inability to "sustain the level of
existing employees" as a contributing factor in Taub's
termination. See, e.g., Kundred Decl at ¶ 3. Taub may therefore
satisfy the fourth requirement of a prima facie case by showing
either a continuing need for her services or by showing that
younger employees were treated more favorably than she was
To satisfy this requirement, Taub argues that younger workers
were treated more favorably than she and points to: (1) the
hotjobs.com advertisement discussed above; (2) evidence that
Nancy Morrison excluded Taub but invited younger workers to
meetings; and (3) an email from Kundred suggesting that Andrew
Miller, in his thirties, be used for a new project instead of
Taub. Opp SJ at 21. Even though the evidence required at the
prima facie stage is minimal, the court finds that the evidence
Taub has presented fails to demonstrate that Taub's discharge
occurred under circumstances giving rise to an inference of age
discrimination. Because the hotjobs.com advertisement was for a position that
differed significantly from Taub's and because Taub has not
established that a younger account supervisor was actually hired,
the advertisement shows neither a continuing need for her duties
nor that younger workers were treated more favorably.
The evidence that Nancy Morrison excluded Taub but invited
younger workers to meetings does not support a possible inference
that younger workers were treated more favorably. According to
Morrison's testimony, she held between one and two meetings per
week aimed at developing new business in the technology group.
Morrison did not invite Taub to some of these meetings, even
though she knew that Taub was looking for work. The problem (for
Taub) is that she has not presented evidence of who was invited
to the meetings, the age of employees who were invited, how many
meetings the employees were invited to in comparison to Taub,
their qualifications in comparison to Taub's and that Taub had
the qualifications or contacts to contribute to the objectives of
Morrison's meetings. Furthermore, Taub testified that she knows
of no other facts that would support a contention that Morrison
excluded Taub because of her age. Taub Depo at 349:12-350:2. This
sequence of events and circumstances simply is insufficient to
give rise to an inference of discrimination. See Ritter v. Hughes
Aircraft Co, 58 F3d 454, 457 (9th Cir 1995) (holding that an
employee who lacked specific evidence of the identity, age or
inferior qualifications of his replacement failed to establish a
prima facie case of age discrimination).
Taub's reference to an email from Kundred to Michael Busselen,
General Manager of Fleishman-Hillard's San Diego office, also is unavailing. Busselen had contacted the San Francisco
office to find an employee to work on a new project. Doc #53. In
response, Shawn Dainas, a vice president at that office,
suggested Taub. Id. When Busselen contacted Kundred about Dainas'
suggestion, Kundred said "Do not use Betsy." Id. Kundred
suggested assigning the project to Andrew Miller, who was in his
thirties. Id. Despite Kundred's suggestion of a younger employee,
this email does not itself allow the inference of age
discrimination because Busselen specifically stated that he did
not want to use Taub if she might be terminated in the next sixty
days. Id. He sent this email to Kundred less than two weeks
before Taub was terminated, and Kundred testified that he said
not to use Taub because he had essentially already made the
decision to terminate her. Kundred Depo at 155:1-10.
But putting this all aside, even if Taub had established a
prima facie case, Fleishman-Hillard has satisfied its burden of
production by articulating legitimate and nondiscriminatory
reasons for Taub's termination. Fleishman-Hillard claims that the
amount of work available was insufficient to sustain the number
of employees in the technology group. Mot SJ at 12-17.
Fleishman-Hillard also asserts that it selected Taub for
termination because she did not have enough work, she lacked the
skills required to obtain new work and her performance was
Indeed, Fleishman-Hillard has produced evidence that when Taub
was terminated, Novadigm, Taub's only client, had cut back its
hours such that Taub did not reach her billable hours goals for
July and August 2003. Taub herself acknowledged that insufficient billable hours would leave an employee vulnerable to
termination. Doc #58-2 at 286:15-287:6. In addition, Kundred
testified that he believed Taub did not have the skills necessary
to work on a broad range of clients, an assertion that Axmacher
referenced in her emails. Doc #58-6 at 137:2-23. That
Fleishman-Hillard terminated a twenty-eight-year-old employee who
was also thought to lack the desired "skill set" supports this
There is also evidence that Taub's performance was deficient in
certain areas. Fleishman-Hillard has argued that Taub's
performance was one of the reasons that she was unable to obtain
work. Mot SJ at 13-17. As previously, the May 2003 evaluation
Taub received suggested a need for improvement in several areas,
including a need to improve her "strategic execution," a need to
become less isolated in the office and a need to improve
communication with her clients. Doc #32-2. Kundred states that he
did not take this evaluation into account when terminating Taub,
but that he did consider her "visibility, her insularity, [and]
her need to think more strategically, all of which Ms. Taub
conceded were true in our meetings in June 2003 and that happened
to appear in that evaluation." Kundred Supp Decl at ¶ 7.
Moreover, as noted, this (at best) mixed performance review
preceded Taub's failure to meet her billable hours goals in July
and August 2003 after the Novadigm cutbacks.
Because Fleishman-Hillard has articulated nondiscriminatory
reasons for terminating Taub, she must produce evidence
sufficient to allow a reasonable jury to conclude either that
Fleishman-Hillard's reasons for terminating her are false or that age discrimination was the true reason for her discharge.
Nidds, 113 F3d at 918. This evidence must be "specific" and
"substantial." Wallis, 26 F3d at 890.
Taub contends both that Fleishman-Hillard's reasons for
terminating her are false and that the true reason for her
termination was age discrimination. Taub argues that
Fleishman-Hillard did not terminate her for economic reasons
because the evidence shows that the San Francisco office was
profitable in 2002 and 2003. Opp SJ at 11-12. She also argues
that her work experience shows that she had the skill set
required to service a broad range of clients. Id at 3-4. Taub
further contends that emails mentioning her age in connection
with her termination demonstrate that age discrimination was the
true reason for her termination. Id at 23. Finally, Taub has
presented statistical evidence that, in her view, shows that
Fleishman-Hillard discriminated against older employees. Ackerman
Decl, Ex E; Opp SJ at 4. After reviewing the evidence on these
issues, the court finds that Taub has failed to produce specific
and substantial evidence of pretext.
Taub argues that Fleishman-Hillard did not terminate her for
economic reasons because the San Francisco office was profitable
in 2002 and 2003. But Taub's evidence on this point does not
address Fleishman-Hillard's stated reason for terminating her.
Kundred stated that profitability concerns in the technology
practice meant that the technology group could not sustain the
number of existing employees. Although the technology practice
did make a profit in 2003, financial records show that the
practice experienced losses in five of the last six months of
calendar year 2003, thus supporting Kundred's statement. Ackerman Decl, Ex F.
And Taub has not pointed to any evidence suggesting that the
technology practice did not have "profitability concerns" in
2003. Rather, Taub argues that Fleishman-Hillard did not
terminate her for economic reasons because the San Francisco
office as a whole was profitable, an assertion that
Fleishman-Hillard does not contest. Because this evidence is not
inconsistent with Kundred's stated reason, it does not show
Taub also argues that Fleishman-Hillard's statement that she
lacks the skills to work with a broad range of clients is false.
Taub points to her employment history, which shows that she has
experience working for eleven different clients. Opp SJ at 2-4.
Taub also points to the email from Shawn Dainas to the general
manager of the San Diego office in which Dainas suggested Taub as
a candidate for a new assignment and detailed her experience
working with various clients and reporters. Doc #53. Finally,
Taub argues that Fleishman-Hillard has not specified what skills
Taub was lacking. Opp SJ at 23.
The evidence on this point does not create a genuine issue of
material fact as to pretext. Although Kundred did not specify
what skills Taub lacked, he stated that he had learned from
managers who had worked with Taub that she was not readily
deployable to a broad range of work. Doc #32-5 at 137:2-138:14.
Kundred also stated that Taub had limited experience working with
a broad range of clients as compared to other members of the
technology practice. Kundred Decl at ¶ 5. Because Taub has not
pointed to any evidence that she was equally or better qualified
to work with a broad range of clients than those employees who
were retained, Taub has not pointed to any evidence that
Fleishman-Hillard's statements regarding her skills are false.
Next, Taub argues that two emails connected to her termination
that mention her age show that discrimination was the true reason
for firing her. The August 22 email from Barbara Axmacher
described Taub as "over sixty." Kundred Depo. A reference to age,
however, without any indication of favoritism for younger workers
or animus against older workers cannot support an inference of
discrimination. See Nelson v. J C Penney, 75 F3d 343, 346 (8th
Cir 1996) ("A fact finder may not simply convert a condition that
is necessary for a finding of liability (here, knowledge of a
plaintiff's age) into one that is sufficient for such a
finding."). Furthermore, Axmacher explains that she only brought
up Taub's age because of risk management and severance concerns.
Doc #32 at ¶ 5. The April 28 email confirms this assertion: In
referring to Taub and two other employees who had been proposed
for termination, the email states, "All three are over the age of
40 but we feel confident these are the people we need to let go
at this time." Id, Ex G. But Taub was not let go at this time
suggesting, if anything, that mention of age may have led to
Taub's retention. Axmacher's use of the word "but" indicates a
reluctance to lay off employees who are in the protected age
group. The mere mention of age is simply too attenuated to
support a triable issue of pretext.
Finally, statistical evidence that Taub has presented is not
probative in showing age discrimination. According to Taub,
employment records show that at the time of Taub's termination
there were "significantly higher number of UpStart employees over age 40, in comparison to the employees of Fleishman-Hillard,"
that Taub was the oldest employee in the San Francisco office at
the time she was terminated and that there was not an employee in
a similar position to Taub over age 40. Id, Ex E; Opp SJ at 4.
Because these statistics fail to take into account any variables
besides age, job title, and office, however, they are not
probative. For instance, Taub began working as a public relations
associate at age fifty. If the average age of applicants for that
position is much lower, then that factor, rather than age
discrimination, would account for the difference in ages between
Taub and her co-workers. See Pottenger v. Potlatch, 329 F3d 740,
748 (9th Cir 2003) (where statistics used to prove age
discrimination failed to take into account job performance, they
failed to raise a triable issue of fact regarding pretext).
Hence, Taub has not produced specific and substantial evidence
that creates an issue of material fact as to the truth of
Fleishman-Hillard's legitimate explanation for firing Taub.
Fleishman-Hillard is therefore entitled to summary judgment as to
Taub's FEHA age discrimination claim.
Taub has also brought a claim for wrongful discharge in
violation of public policy. Taub bases this claim on FEHA's
expression of the public policy against age discrimination. Not
of Rem, Ex A at ¶¶ 25-26.
According to the California supreme court, "the public policy
against age discrimination articulated in the FEHA is subject to
the FEHA's limitations on the nature and scope of the statutory
prohibition against age discrimination." Esberg v. Union Oil Co, 28 Cal 4th 262, 272 (2002). If an employer has not
violated FEHA, the employee's claim for wrongful discharge in
violation of public policy based on FEHA fails. Id at 272-73.
Because Taub has not established a violation of FEHA,
Fleishman-Hillard is also entitled to summary judgment as to
Taub's claim for wrongful termination in violation of public
In sum, the court GRANTS Fleishman-Hillard's motion for summary
judgment on the grounds that Taub has failed to present evidence
establishing a prima facie case of age discrimination and that
Taub has failed to present specific and substantial evidence that
Fleishman-Hillard's legitimate, nondiscriminatory reasons for her
termination are pretextual. Because Taub has not established a
genuine issue of material fact whether defendant violated FEHA,
Fleishman-Hillard is also entitled to summary judgment as to
plaintiff's claim of wrongful termination in violation of public
policy. Taub's claims of age discrimination under FEHA, wrongful
termination in violation of public policy and intentional
infliction of emotional distress are DISMISSED. The clerk is
directed to close the file and terminate all pending motions.
IT IS SO ORDERED.
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