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Santa Clara County Superior Court Trial Court, Superior Court No. 107 CV 088296, The Honorable Mark H. Pierce, Trial Judge.
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Law Office of Samuel Kornhauser, Samuel Komhauser for Plaintiff and Appellant.
Skadden, Arps, Slate,
Meagher & Flom, Allen Ruby, Thomas V. Christopher and Raoul Kennedy for Defendant and Respondent Santa Clara University.
Covington & Burling, Sonya D. Winner and Philip A. Scarborough for Defendants and Respondents Robert Warren, Molly McDonald, John Ottoboni and Julie Veit.
Plaintiff and appellant Conchita Franco Serri brought this action against her former employer (defendant and respondent Santa Clara University (the University)) and other individually named defendants after the University terminated her employment. Serri had worked as the University’s Director of Affirmative Action since 1992. The University terminated her employment in 2007 because she failed to produce Affirmative Action Plans for three consecutive years, even though her job required that she produce an Affirmative Action Plan annually. The University also terminated her employment because she made misrepresentations about the Plans that she had failed to prepare.
Notwithstanding Serri’s failure to produce the required Plans—and the misrepresentations she made about the nonexistant Plans—Seri filed a complaint alleging that she was wrongfully discharged from her employment based on her race and ethnic origin. Her complaint also contained causes of action for breach of her employment contract, retaliation and harassment in violation of the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.), violation of the federal Equal Pay Act of 1963 (Pub.L. No. 88-38 (June 10, 1963) 77 Stat. 56), defamation, intentional and negligent infliction of emotional distress, and interference with prospective economic advantage. Defendants moved for summary judgment, or in the alternative, summary adjudication of each of Serri’s causes of action.
We are asked to determine whether an employee who is terminated for failing to perform an important job function can avoid summary judgment by arguing, based on expert evidence obtained for the purpose of opposing a motion for summary judgment or summary adjudication, years after the employee’s termination, that the failure to perform did not and would not result in any adverse consequences to the employer. We hold that after-acquired expert evidence that there were no adverse consequences from an employee’s failure to perform does not create a triable issue of fact on the question whether the employee failed to perform his or her job duties and thus has limited relevance, if any, to the question of discrimination.
In this case, expert evidence that the failure of performance did not harm the University, acquired years after Serri was terminated, did not create a triable issue of material fact on the question whether the University’s stated reasons for terminating Serri were untrue or pretextual such that a reasonable trier of fact could conclude that the employer engaged in discrimination. Before she was terminated, Serri told the University her failure to prepare an affirmative action plan could have adverse consequences, including the loss of federal grants. That the University ultimately suffered no adverse consequences did not create a triable issue on the questions whether the University had a legitimate, nondiscriminatory reason to terminate her employment or whether its reasons for doing so were untrue or pretextual. We also reject Serri’s other contentions. Accordingly, we will affirm the summary judgment.
For almost 15 years, from the latter half of 1992 until March 2007, Serri was employed by the University as its director of affirmative action. Her duties included handling and either mediating or investigating complaints filed by faculty, students, and staff under the University’s anti-discrimination and anti-harassment policy, which the University refers to as “Policy 311.” Serri’s duties also included preparing the University’s annual Affirmative Action Plan and providing sexual harassment training to the University staff. Serri testified in deposition that since the University was a federal contractor, federal regulations required the University to prepare an annual AAP. In a memo she wrote in November 2005, Serri described the AAP as “pivotal and essential for us for obtaining and retaining federal grants.” Serri, who is Puerto Rican, was 54 years old when the University terminated her employment.
At all times relevant to this case, defendant Father Paul Locatelli was the President of the University, defendant Robert Warren was the University’s Vice President for Administration and Finance, and defendant Molly McDonald was the University’s Assistant Vice President of Human Resources. McDonald reported to Warren, and Warren reported directly to Father Locatelli. Until April 2006, Serri’s also reported directly to Father Locatelli. McDonald supervised Serri from April 2006 until Serri’s termination in March 2007.
Defendants John Ottoboni and Julie Veit are attorneys. Veit is Ottoboni’s daughter. Before 2007, they both worked for a law firm that served as outside counsel to the University. In the fall of 2006, the University hired Ottoboni as its in-house general counsel, effective January 1, 2007. In late January 2007, Veit started working for the University as an in-house legal associate to the human resources department. Veit reported to McDonald, not Ottoboni.
The University’s Affirmative Action Plan
Serri testified in deposition that there were three major components to the University’s Affirmative Action Plan. The first component had two parts: (1) a narrative report that Serri prepared, and (2) several statistical analyses that her assistant Linda Jocewicz prepared based on data provided by the human resources department. The AAP narrative contained the University’s “critical self analysis” and discussed specific topics as required by the Code of Federal Regulations. The statistical analyses part included a workforce analysis, a job group analysis, and an availability analysis (“an estimate of the number of qualified minorities and women available for employment” in specific job groups). The other two components of the AAP were the “applicant flow” and the “glass ceiling part, ” which Serri testified she never prepared because she was never given the data she needed to complete those components.
Events in 2003 and 2004
McDonald started working for the University in May 2003. Shortly thereafter, Serri told McDonald that she had had difficulty obtaining the data she needed to complete the statistical portion of the AAP’s from McDonald’s predecessor. McDonald promised her full cooperation and encouraged Serri to contact her if she encountered any problems with the human resources department.
Serri reported directly to Father Locatelli for many years. In about 2003, Father Locatelli began considering changing their reporting relationship and having Serri report to McDonald instead. Serri objected and wrote him a
letter in December 2003, in which she explained why she did not believe it would be a good idea to make the Affirmative Action Office part of human resources. In June 2004, Father Locatelli questioned Serri’s role in investigating faculty complaints. After consulting with Ottoboni and Veit (who were then outside counsel), Father Locatelli advised Serri that the University needed to make changes in policies, procedures, and reporting relationships related to the Affirmative Action Office, but no such management changes were made in 2004 or 2005.
Serri’s Wage Complaint
On November 7, 2005, Serri sent Father Locatelli a letter in which she complained about an “unjustifiable salary disparity” between her salary and that of Charles Ambelang, a male employee in the human resources department whose job functions Serri alleged were comparable to her own. Serri said she had informed McDonald of the salary disparity in March 2005. Her letter asked Father Locatelli to “remedy this inequity... without further delay.”
April 6, 2006 Meeting Between Serri, Father Locatelli, McDonald, and Veit
In 2006, Father Locatelli ultimately determined that he did not have sufficient time to manage Serri’s department and decided that Serri would report directly to McDonald, but would provide him with monthly updates regarding her activities, thus creating what the parties referred to as a “dotted-line” reporting relationship between Serri and Father Locatelli.
Father Locatelli met with McDonald and Serri on April 6, 2006, to discuss the reporting changes and other issues. At that meeting, Father Locatelli reassured Serri that the change in their reporting relationship was not a demotion. He noted that other reporting changes were also taking place.
Shortly after the April 6, 2006 meeting, Serri took a medical leave of absence from the University to have surgery. Serri returned from her medical leave on June 20, 2006. Shortly thereafter, the University offered to make an equity adjustment to her salary, increasing it from $104, 000 to $118, 350 per year retroactive to March 1, 2005, the date Serri first informed McDonald of the alleged salary disparity. The University also offered Serri a 3.5 percent merit increase for the 2006-2007 academic year, which brought her salary up to $122, 492 per year effective July 1, 2006. At that time, the University was in the process of having an outside consultant, Mercer Human Resources
Consulting (Mercer), review the salaries of certain University employees, including Serri’s salary. As part of that process, McDonald asked Serri to prepare a written description of her job for Mercer, which Serri completed on June 21, 2006. The University told Serri that if Mercer determined that an additional salary increase was warranted, that increase would be made retroactive as well.
Serri’s June 2006 Discrimination Claim
On June 21, 2006, the same day the University offered to make an equity adjustment to Serri’s salary, Serri made a formal written complaint against Father Locatelli and Warren under Policy 311. Serri’s complaint against Father Locatelli alleged gender discrimination because she made $20, 000 per year less than Ambelang;  she also claimed the wage disparity was a violation of the federal Equal Pay Act of 1963. Serri’s complaint against Warren alleged that she felt threatened by him when he interfered with her investigation of a sexual harassment claim involving two employees of the Facilities Department in 2005.
Since it would have been inappropriate for Serri to investigate her own claims, the University hired an independent investigator for these claims. University representatives asked Ottoboni, who was then outside counsel for the University, for a recommendation. Ottoboni recommended Steven Manchester, an attorney with over 35 years of experience. The University then hired Manchester to investigate Serri’s claims.
On July 30, 2006, Manchester issued a written report in which he found that Serri’s claims were without merit and that neither Father Locatelli nor Warren had violated Policy 311. Serri appealed Manchester’s findings to the University’s Board of Trustees (Board). The Board held a hearing on September 12, 2006. Serri, who was represented by counsel, presented documents and argument in support of her appeal. The Board affirmed Manchester’s findings.
Serri’s Working Relationship with Veit
As Assistant Vice President for Human Resources, McDonald regularly worked with outside counsel, including Veit. From time to time Veit, who practiced employment law, gave the University legal advice on matters that Serri handled, including the investigation of complaints and sexual harassment training. Veit often attended McDonald’s meetings with Serri. On
September 26, 2006, McDonald sent Serri an e-mail suggesting that Veit attend their “regularly scheduled” biweekly meetings, to which Serri responded, “Brilliant idea, Molly! Let’s do it.”
Serri Discloses Her Failure to Prepare Affirmative Action Plans
Father Locatelli asked to meet with McDonald and Serri in mid-October to discuss Serri’s cases. To prepare for the meeting, Father Locatelli asked Serri to provide him with a written report by October 10, 2006, regarding the status of the cases she had handled between April and September 2006. The meeting was ultimately scheduled for October 13, 2006.
About a week before the meeting, on October 5, 2006, Serri filed discrimination claims against the University with the California Department of Fair Employment and Housing (DFEH) and the federal Equal Employment Opportunity Commission (EEOC). The claims alleged (1) discrimination on the basis of sex, race, and national origin; and (2) retaliation for complaining about discrimination and a violation of the Equal Pay Act of 1963.
On October 10, 2006, at one of her regular meetings with McDonald and Veit, Serri told McDonald that the University “had not had a defensible Affirmative Action Plan” for several years. Serri was upset that her assistant, Linda Jocewicz, had not been trained on certain computer software so she could access human resources data she needed to prepare the statistical analyses part of the AAP. Serri stated that during the entire time that she was the Director of Affirmative Action, she never received the data she needed to complete the AAP’s. This was the first McDonald had heard of this and she immediately became concerned. McDonald agreed to provide Serri with whatever data she needed and Serri agreed to provide Veit with a copy of the most recent AAP. After Serri’s disclosure, Warren became concerned that the University could lose certain government funding because it did not have a defensible AAP.
Serri and Father Locatelli exchanged a series of e-mails in preparation for their October 13, 2006 meeting. On October 12, 2006, Father Locatelli told Serri their meeting would include a review of her cases as of September 30, as well as the “current Affirmative Action [P]lan.” He asked her to “bring the current Affirmative Action [P]lan and all plans for the last 10 years” to the meeting.
Serri responded via e-mail, stating in part, “In the spirit of open communication I must say that I find the tone of your emails hostile.” She also stated, “To this date, I have never received the completed data we need to complete the Affirmative Action Plan, even though we have asked for it in the past
numerous times. I am working on the current plan for this year. I will bring a draft and last year’s. The industry standard is to destroy the AAP[’]s that are over two years old.” Father Locatelli responded, “Please let me clarify so there is no misunderstanding. I am only trying to get the material that you promised to send me as well as information that I thought was readily available to you. My purpose is to be as prepared as possible in order to have a fruitful and effective meeting. [¶] It is unclear how my email could be read as ‘hostile’ and I am looking forward to a productive meeting tomorrow.”
At the meeting on October 13, 2006, Serri produced two documents that were labeled “DRAFT... Affirmative Action Plan” covering the periods “February 2006 through January, [sic] 2007” and “November 1, 2006 through October 31, 2007.” The draft AAP’s that Serri produced in October 2006 were 25-page narrative reports that documented the University’s “policy of sustaining equal employment opportunity and implementing affirmative action efforts in conformity with” federal statutes and executive orders. Both documents contained multiple typographical and grammatical errors, incomplete sentences, and other errors. The University later learned that Serri created both draft AAP’s the day before the October 13, 2006 meeting. In deposition, Serri admitted that she prepared the two draft AAP’s the day before the meeting and that she did not inform either Father Locatelli or McDonald that she had done so.
At the October 13, 2006 meeting, Serri said: (1) she was not an expert in AAP’s; (2) she needed to hire a consultant to help prepare the AAP’s because the applicable regulations had changed; and (3) her assistant had failed to obtain the data she needed to prepare the statistical analyses part of the AAP from human resources. Serri repeated her previous statement that the University had no current, defensible AAP; she also said the University was likely to be audited by the federal government and recommended the University hire Anna Maly, an AAP consultant, at a cost of $9, 000, to revamp its AAP and to create a template for future AAP’s. Prior to this meeting, Serri had never told McDonald she did not feel competent to prepare the AAP or that she need a consultant to help her prepare it.
In deposition, Serri testified that she started preparing AAP’s in 1992 and that she prepared an AAP each year between 1992 and 2000. Serri also testified that the last time she prepared the narrative portion of the AAP prior to October 2006 was in 2002 and that Jocewicz had prepared the statistical analyses for the AAP in 2005 and 2006, but not in 2004.
Father Locatelli, Warren, McDonald, Ottoboni, and Veit met on October 18, 2006, to discuss the problems related to the University’s AAP. They decided that McDonald would take over the responsibility of completing the 2006 AAP. On October 19, 2006, McDonald sent Serri an e-mail informing her that she (McDonald) would be “facilitate[ing] the coordination of this year’s Affirmative Action Plan” in light of Serri’s statements that (1) the AAP was “incomplete and indefensible, ” (2) she was unable to “produce a defensible plan without hiring a consultant, ” and (3) it was likely the University would be audited. The reassignment of duties was also based on McDonald’s review of the draft plans Serri had prepared and the fact that the University had not had an AAP since 2003. McDonald asked Serri to provide the exhibits and the statistical analyses that were referenced in the draft AAP’s. She also informed Serri that she was asking University counsel to review the AAP.
Serri objected to the reassignment of her duties relating to the 2006 AAP in an e-mail dated October 20, 2006, stating that the preparation of the AAP was “one of those roles that define [her] position” and that she felt “compelled to protest this act to the EEOC as an act of retaliation.” She stated that (1) regulations governing AAP’s had changed; (2) since 2004, she has needed to hire a consultant to prepare an AAP that was defensible and complete in light of the new regulations; (3) Father Locatelli never gave her permission to hire a consultant; and (4) McDonald’s predecessor had denied her “essential data” and computer training needed to complete past AAP’s. Serri also blamed the problem with the AAP’s on Father Locatelli’s “unwillingness to communicate” with and supervise her for six years.
Serri’s October 2006 Claims
On October 20, 2006, Serri lodged a second complaint under Policy 311, in which she claimed that McDonald’s assumption of responsibility for the AAP was an act of retaliation for Serri’s prior Policy 311 and EEOC claims. On or about October 24, 2006, Serri filed a second claim against the University with the DFEH, which was forwarded to the EEOC, in which she claimed that taking away her “essential job function” of preparing the AAP was “a demotion” that was retaliatory in nature.
The University once again asked Ottoboni to recommend someone to investigate Serri’s second Policy 311 claim. Since Manchester had found against Serri on her first claim and Serri had criticized his investigation, Ottoboni recommended the University retain Mark Fredkin, an attorney with over 25 years experience, to investigate Serri’s second claim. The University hired Fredkin. Linda MacLeod, an attorney at Fredkin’s firm, assisted with the investigation.
On October 23, 2006, Serri told McDonald that she no longer wanted Veit attending their meetings. But McDonald decided that Veit would continue to attend their meetings so they could discuss Serri’s cases and projects with Veit present. She also believed “it was important to have another person present for the conversations with Ms. Serri in light of past disagreements about what had transpired in earlier discussions.” Veit attended only two or three more of Serri’s meetings with McDonald, all in the fall of 2006. On November 13, 2006, Serri added an allegation to her second Policy 311 claim that Veit’s presence at her meetings with McDonald was an act of retaliation against her.
Ottoboni and Veit Obtain Employment With the University
In 2006, the University decided to hire a full-time, in-house general counsel and offered Ottoboni the job. The University announced Ottoboni’s appointment as general counsel in the fall of 2006 and he started working directly for the University on January 1, 2007.
In the latter part of 2006, McDonald recommended the University hire an in-house attorney for the human resources department who would report directly to McDonald. Warren approved and the University advertised the position in December 2006. Veit applied and was offered the job; she started working directly for the University in late January 2007. Serri’s duties did not change after Veit was hired. Serri’s job and Veit’s job were and remained separate and distinct.
Results of Second Investigation
On January 17, 2007, Fredkin and MacLeod issued a report in which they concluded that Serri had failed to meet her burden of proof on her retaliation claims. Serri appealed the decision to the Board and on February 13, ...