FACTUAL AND PROCEDURAL BACKGROUND
1. Husman's Advancement at Toyota
Husman was hired by Toyota in April 1997 and, except for a brief period in 2000, worked in various management-level positions in Toyota's marketing, sales and financial services divisions until his 2011 termination. In 2007 George Borst, the chief executive officer of TFS, decided to create a new management position to enhance Toyota's diversity outreach under the supervision of Julia Wada, TFS's vice president for human resources, who was then Husman's supervisor. When Wada's initial efforts to identify a candidate were unsuccessful, Borst suggested she consider Husman, whom he knew and liked.
By all accounts Husman excelled at important components of his job. He successfully implemented a diversity training program for TFS. During his
Notwithstanding Husman's impressive employment reviews, Wada believed his internal performance could be improved and counseled him to develop stronger relationships with executive leaders to demonstrate the value of his programs and secure their continued support. She also
2. Husman's Promotion to an Executive-level Position
These complaints did not impede Husman's career advancement. In August 2010 he was promoted to an executive-level position as the corporate manager of corporate social responsibility, again with Borst's backing. His duties encompassed TFS's efforts in the areas of diversity and inclusion, as well as corporate philanthropy. In his new capacity he reported to Ann Bybee, TFS's vice president for corporate strategy, communications and community relations. Bybee, in turn, reported to Pelliccioni. Like Wada and Borst, Bybee and Pelliccioni had known Husman for more than a decade and knew he identified as gay. Bybee considered him a friend and had no reservations about his promotion. Pelliccioni later stated he had doubts about Husman's promotion but did not express them at the time in light of Borst's support.
In April 2011 Bybee and Elconin advised Husman of the results of the investigation and told him he would receive a written warning, certain reduced performance ratings and, consequently, a slightly lower bonus. Because Husman was out of the office the rest of the month, he was not presented with the warning until May 2011. Upset, he refused to sign the warning letter and attempted to negotiate its wording, which had already been reviewed by Borst and Pelliccioni.
After receiving the warning Husman became increasingly uncooperative with Bybee, who requested that Pelliccioni intervene. When Pelliccioni asked to meet with Husman in June 2011, Husman initially declined the meeting. Pelliccioni told him the meeting was not optional. Husman finally met with
Although Borst and Pelliccioni later stated they had no thoughts of terminating Husman in June 2011, an episode at a diversity awards dinner earlier that month had further alienated Husman. In the fall of 2010 Husman had submitted an application nominating Borst for a corporate leadership award from Diversity Best Practices, Inc. Borst was selected as a recipient of the award, which was conferred at a dinner in New York in early June 2011. In what he later characterized as a joke, Borst said in accepting the award that his goal was to fire Husman. He explained that in the future he hoped a diversity and inclusion program would no longer be necessary at Toyota. Husman believed Borst was mocking him and did not truly care about the issue of diversity.
Husman's frustration also stemmed from his belief other Toyota executives, including Borst and Pelliccioni, had not been disciplined for comments about employees far worse than those for which he had been disciplined. Pelliccioni had also made comments Husman perceived as anti-gay, observing that Husman made "a very clear statement" about his sexual orientation and should cut his hair and ridiculing him for wearing a scarf as an accessory when it was not cold outside. Husman complained about these comments to Wada and Bybee; but they declined to correct Pelliccioni, who was their boss.
Husman also believed Pelliccioni paid only lip service to Toyota's sponsorship of events like AIDS Walk LA but did not participate in a meaningful way. When Husman asked Pelliccioni to include AIDS Walk LA on the list of organizations eligible for automatic payroll deductions, Pelliccioni refused on the ground the list was restricted to national organizations. Pelliccioni was aware Husman complained about this decision to Vincent Bray, another executive involved in approving the list. In August 2011 Husman also expressed his frustration with what he perceived as Toyota's lack of progress in supporting its LGBT employees to the company's Diversity Advisory Board, which was comprised of prominent national figures. Asked by one board member about the state of affairs for Toyota's LGBT employees, Husman answered that Toyota had made some progress but had a long way to go, a statement he believed caused Borst to treat him coldly.
3. Husman's Termination
In mid-September 2011 Husman failed to attend two one-on-one meetings with Bybee and resisted attending an executive conference scheduled for September 19, 2011. On September 15, 2011 the executive group (including Husman) received scores from a cultural literacy test administered by a consultant. Husman received the highest score and, referring to the March 2011 investigation, told Bybee he was angry that others who had scored lower had been judging him. Bybee believed this statement revealed Husman had "taken no step forward" after the multiple efforts to assist him. When Borst dropped by her office later that day, she told him she was "at wit's end" and no longer wanted to work with Husman. Later that day, Pelliccioni called her and said, "We're done with Joe."
Describing the same events, Borst stated he too had been disturbed by Husman's behavior following the warning letter and viewed Husman's comment to Bybee criticizing those who had scored lower on the cultural
According to Husman, Bybee also told him she was terminating him at the request of Pelliccioni, "who had it out for him," and suggested he ask Borst for reconsideration of the decision. Husman texted Borst that evening, apologized for disappointing him, and asked whether the decision could be turned into a "wakeup call" to better his performance. When Borst confirmed the decision, Husman thanked him for all he had done for him over the years and asked if Borst would provide career advice once the dust had settled.
In a conference call the next day, Elconin, Bybee and general counsel Katherine Adkins proposed a severance agreement allowing Husman to remain on paid administrative leave until November 2, 2011 while the parties negotiated other terms of the agreement. Husman never returned to work, and his duties were assigned to two people: Mark Simmons, who is not gay, was assigned Husman's corporate philanthropy duties; his diversity and inclusion responsibilities were assigned to Stephen Lewis, a gay man.
On September 23, 2011 Husman's lawyer informed Toyota by email that his client had been subjected to sexual orientation discrimination. After an unsuccessful mediation, Husman also alleged Toyota had retaliated against him.
Husman sued Toyota on October 3, 2013 alleging sexual orientation discrimination and retaliation under FEHA. He also alleged two common law claims for wrongful termination in violation of public policy paralleling the FEHA claims. Toyota moved for summary judgment on January 8, 2015. At the hearing on March 25, 2015 the court issued a tentative ruling that Husman had raised a triable issue of material fact precluding summary judgment. After a lengthy argument and supplemental briefing, the court issued a final decision granting the motion. Judgment was entered against Husman on October 5, 2015, following an unsuccessful motion for reconsideration.
DISCUSSION
1. Standard of Review
A motion for summary judgment or summary adjudication is properly granted only when "all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."
When a defendant moves for summary judgment in a situation in which the plaintiff would have the burden of proof at trial by a preponderance of the
Once the defendant's initial burden has been met, the burden shifts to the plaintiff to demonstrate, by reference to specific facts, not just allegations in the pleadings, there is a triable issue of material fact as to the cause of action. ( Code Civ. Proc., § 437c, subd. (p)(2) ; Aguilar v. Atlantic Richfield Co., supra,
2. Analyzing Discrimination Claims Under FEHA
FEHA prohibits an employer from, among other things, discharging a person from employment because of his or her gender, gender identity, gender expression or sexual orientation. (§ 12940, subd. (a).) The express purposes of FEHA are "to provide effective remedies that will both prevent and deter unlawful employment practices and redress the adverse effects of those practices on aggrieved persons." (§ 12920.5.) The Legislature accordingly has mandated that the provisions of the statute "shall be construed liberally" to accomplish its purposes. (§ 12993, subd. (a).) As the Supreme Court has recognized, "[b]ecause the FEHA is remedial legislation, which declares '[t]he opportunity to seek, obtain and hold employment without discrimination' to be a civil right [citation], and expresses a legislative policy that it is
In analyzing claims of discrimination under FEHA, California courts have long used the three-stage burden-shifting approach established by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973)
Under the McDonnell Douglas test a plaintiff may establish a prima facie case for unlawful discrimination by providing evidence that "(1) he [or she] was a member of a protected class, (2) he [or she] was qualified for the position he [or she] sought or was performing competently in the position he [or she] held, (3) he [or she] suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some circumstance suggests discriminatory motive." ( Guz, supra,
In the context of summary judgment an employer may satisfy its initial burden of proving a cause of action has no merit by showing either that one or more elements of the prima facie case "is lacking, or that the adverse employment action was based on legitimate nondiscriminatory factors." ( Cucuzza v. City of Santa Clara (2002)
b. Mixed-motive analysis under Harris v. City of Santa Monica
In some cases there is no single reason for an employer's adverse action, and a discriminatory motive may have influenced otherwise legitimate reasons for the employment decision. In Harris v. City of Santa Monica (2013)
To resolve the proper legal analysis in a mixed-motive case under FEHA, the Court invoked the United States Supreme Court's decision in Price Waterhouse v. Hopkins (1989)
Two years after the decision in Price Waterhouse , Congress confirmed the Supreme Court's interpretation of title VII by amending the law to provide that "an unlawful employment practice was established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for an employment practice, even though other factors also motivated the practice." ( 42 U.S.C. § 2000e-2(m) ; see Harris, supra,
In light of the not infrequent occurrence of mixed motives in discrimination cases, particularly as exemplified by Price Waterhouse , and FEHA's goal of eradicating
While Harris concerned an appeal from a jury verdict in favor of a city bus driver who had claimed she was fired because of her pregnancy, its mixed-motive analysis translates readily to the summary judgment context. Although we have found no published California decision relying on Harris 's mixed-motive analysis for review of a summary judgment, numerous federal courts have adapted Price Waterhouse ' s analysis for review of orders granting summary judgment. An Eleventh Circuit decision recently surveyed other circuit decisions and found the Eighth Circuit to be the only one requiring plaintiffs to adhere to the McDonnell Douglas burden-shifting framework in mixed-motive cases. (See
Ultimately, courts have recognized that whether a court applies the McDonnell Douglas framework or the mixed-motive analysis described in
In short, when an employee fails to establish pretext, evidence of discriminatory animus is the sine qua non of a discrimination claim. Moreover, Harris tells us "there must be a causal link between the employer's consideration of a protected characteristic and the action taken by the employer" and a plaintiff must demonstrate "discrimination was a substantial motivating factor, rather than simply a motivating factor." ( Harris, supra, 56 Cal.4th at pp. 215, 232,
3. Toyota Established a Legitimate Nondiscriminatory Reason for Husman's Termination, but Husman Also Raised a Triable Issue of Fact as to Whether His Termination Was Substantially Motivated by Discriminatory Bias
The summary judgment record plainly demonstrates Toyota had a legitimate, nondiscriminatory reason for discharging Husman that was nonpretextual. Toyota established that by September 15, 2011 Bybee had become so frustrated by Husman's absences from the office and his insubordinate behavior, she no longer wanted to manage him. According to Toyota,
a. Husman has not forfeited mixed-motive analysis
Although Toyota included a mixed-motive defense in its answer, neither party discussed Harris or mixed-motive analysis in its summary judgment papers or briefs on appeal. We instructed counsel to be prepared at oral argument to address the applicability of Harris to this case.
Citing several federal circuit court decisions and this court's decision in Alamo v. Practice Management Information Corp. (2013)
We exercise that discretion in this case. Husman's evidence that discrimination was a substantial motivating factor for his discharge was set forth in his separate statement of disputed facts (cf. North Coast Business Park v. Nielsen Construction Co. (1993)
b. The conflicting same-actor and cat's paw inferences
In challenging the contention discrimination played any role in these events, Toyota heavily relies-as did the trial court-on the allegedly undisputed fact that Borst, the person responsible for Husman's advancement at Toyota, was also the person who fired him, a factual pattern cited by a number of courts as "same-actor" evidence susceptible to a strong inference the actor harbors no discriminatory motive. (See Horn v. Cushman & Wakefield Western , Inc. (1999)
Husman responds that Pelliccioni, whom he believed was biased against him, was directly involved in his termination and acted as the "cat's paw" that influenced the decision, even if Borst believed he made the decision independently. (See DeJung v. Superior Court , supra ,
While once commonly relied on by courts affirming summary judgment against a plaintiff alleging discriminatory action, the same-actor inference has lost some of its persuasive appeal in recent years. For instance, in Nazir v. United Airlines, Inc. (2009)
In the case at bar, the evidence asserted by Toyota to support the same-actor inference is also susceptible to reasonable inferences favorable to Husman that must be credited on summary judgment. Notwithstanding Borst's plain sway over his subordinate executives, hiring, promotion and
Moreover, Bybee's statements to Husman when informing him of his termination cast doubt as to the linear process depicted by Toyota and the cited basis for termination. Bybee admitted she told Husman he was being terminated because he had "excluded the majority," meaning he had failed to obtain the buy-in of "the majority," Toyota's non-diverse employees. Husman understood this to mean he had focused too much on LGBT issues, a reasonable interpretation (although not the only interpretation) of the remark. Moreover, according to Husman, Bybee told him Pelliccioni "had it out for him" and suggested he appeal to Borst-hence Husman's apologetic email to Borst asking for reconsideration. Although Toyota insists Bybee simply did not know the course of events when she spoke with Husman and mistakenly believed Pelliccioni had made the decision, ignoring Husman's account of the conversation would require us to weigh the facts and disregard inferences in his favor, something we are prohibited from doing on summary judgment.
c. Husman's evidence of Pelliccioni's biased remarks
In Reid, supra,
Husman presented evidence that Pelliccioni harbored stereotypical views of gay men and articulated clear opinions as to what he considered appropriate gender identity expression, observing at various times that Husman had made "a very clear statement" about his sexual orientation and should cut his hair, as well as ridiculing him for wearing a scarf as an accessory
As one commentator has explained, "One useful example of the way in which straightforward sexual-orientation discrimination claims fail in cases where sex stereotyping would succeed is that of the 'gayer' plaintiff-in other words, of an LGBT person who is treated worse than another employee of the same sexual orientation who behaves in such a way as to deflect attention from her status." (Herz, Price 's Progress: Sex Stereotyping and Its Potential for Antidiscrimination Law (2014)
Thus, even if Pelliccioni's remarks were not made in the direct context of the termination decision, given Pelliccioni's position it is difficult to deny that any bias he felt or expressed toward Husman had the capacity to affect management's perceptions of Husman's performance and attitude, as well as exacerbate Husman's own increasingly alienated behavior. (See Reid , supra ,
Indulging these inferences in Husman's favor, as we must, he has raised a triable issue of material fact that impermissible bias was a substantial motivating factor for his termination.
4. Husman Failed To Raise a Triable Issue of Fact That Toyota Discharged Him in Response to His Complaints About Prohibited Actions
The retaliation provision of FEHA forbids an employer "to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under" FEHA. (§ 12940, subd. (h).) "Employees may establish a prima facie case of unlawful retaliation by showing
Although "[r]etaliation claims are inherently fact-specific" ( Yanowitz, supra,
Husman points to two instances he claims support his charge of retaliation: 1) his complaint to Vincent Bray that Pelliccioni had refused to include AIDS Walk LA on the list of automatic payroll deductions; and 2) his comment to the Diversity Advisory Board that, while Toyota's LGBT employees had made some progress, there was still work to be done.
Similarly, Husman's statement to the Diversity Advisory Board falls short of communicating a particularized complaint about discriminatory treatment of LGBT employees and, instead, was likely understood as an exhortation common among diversity advocates to the effect that, while progress has been made, much work remains to be done. (See Hood v. Pfizer, Inc. (3d Cir. 2009)
Absent the identification of some more pointed criticism or opposition salient to an act reasonably believed to be prohibited by FEHA, Husman failed to raise a triable issue of fact supporting his claim of retaliation.
DISPOSITION
The judgment is reversed, and the order granting summary judgment is vacated. The superior court is to enter a new order denying summary adjudication of Husman's claims of employment discrimination based on
We concur:
SEGAL, J.
SMALL, J.
Notes
Statutory references are to this code unless otherwise stated.
In 2001 Borst married another Toyota employee who was a colleague and friend of Husman. Husman socialized occasionally with Borst and his wife and attended their wedding in Italy.
Borst had a history of supporting LGBT rights. He had attended several LGBT events with Husman and successfully pushed TFS to provide medical benefits to same-sex domestic partners before California adopted legislation requiring such coverage in 2004. (See Stats. 2004, ch. 488, § 4, pp. 4008-4009, amending Ins. Code, § 10121.7.) He also successfully advocated for the Toyota companies to extend medical benefits to cover gender-reassignment surgery in 2010.
Husman denied making some of these comments and admitted making others, but said they had been taken out of context or were not offensive.
Bybee's letter stated, "With your promotion to Corporate Manager, and your previous role as National Manager, Diversity and Inclusion, my expectation was that you would be the role model for inclusive behavior. I recently became aware of conduct that did not meet that expectation. As we discussed, you made multiple comments that offended your co-workers and displayed insensitivity to the unique qualities that everyone brings to the table. My concerns were compounded by your initial inability to grasp the seriousness of the concerns or to take responsibility for your conduct. [¶] ... [¶] As a Corporate Manager, you are expected to exercise sound judgment and demonstrate leadership at all times, and as the leader of our Diversity and Inclusion efforts, you are expected to bring associates together in a collaborative manner and use inclusive efforts to challenge us and lead us. After having discussed our expectations for leaders and the significance of your behavior in this matter, I am confident that you understand the importance of creating a welcoming environment and appreciating what everyone brings to the table. I'm equally confident that you understand that the non-inclusive conduct we've discussed will not be repeated."
Bybee had earlier asked Husman to prepare a three-year roadmap for diversity and inclusion goals. As part of that request Bybee asked Husman to evaluate the outside relationships he should develop and, based on that evaluation, winnow the number of conferences he attended to reduce his travel. Husman resisted producing the plan and eventually gave Bybee a list of conferences she felt had been thrown together without much thought. In another instance, an executive training program scheduled for June 2011 had to be postponed because Husman and his staff failed to prepare the necessary materials. Even with an extra month for preparation, the materials were not timely delivered; and Borst, who was scheduled to deliver the opening remarks, did not receive them until shortly before the opening session.
As reported by the consultant who investigated Husman's termination, Bybee told a slightly different version of these events. She had kept Borst informed about her difficulties managing Husman; and, months earlier, he had suggested she consider a separation package for Husman. Now, he told her to talk with in-house legal counsel, a response she understood as an endorsement of Husman's termination. Bybee then informed Pelliccioni of her decision, who told her she should not "back-track" on it.
Toyota commenced an internal investigation into Husman's charges and invited him to be interviewed. He declined. The investigation was conducted by a third party who ultimately concluded Husman had been terminated for nondiscriminatory reasons related to his performance.
Justice O'Connor, concurring in the result in Price Waterhouse, insisted a plaintiff should be required to establish a discriminatory motive through direct, rather than circumstantial, evidence. The Supreme Court rejected that position in Desert Palace, Inc. v. Costa (2003)
Harris held, if a plaintiff has shown by a preponderance of the evidence that discrimination was a substantial factor motivating his or her termination and the employer then demonstrates that legitimate, nondiscriminatory reasons would have led it to the make the same decision at the time, "then the plaintiff cannot be awarded damages, backpay, or an order of reinstatement. However, where appropriate, the plaintiff may be entitled to declaratory or injunctive relief. The plaintiff also may be eligible for an award of reasonable attorney's fees and costs...." (Harris, supra,
Underlying Harris is a concern for what has been called second generation discrimination, that is, discrimination against individuals based on invidious stereotypes about the particular group to which they belong or structural biases that motivate employers' decisions independently of their conscious judgment that discrimination against those groups is inappropriate. (See Sturm, Second Generation Employment Discrimination: A Structural Approach (2001)
The trial court found Toyota had carried its burden based on Husman's inappropriate comments to fellow employees for which he was disciplined with the warning letter in early May 2011. That is not correct; both Bybee and Pelliccioni testified termination was not contemplated when they met with Husman six weeks later on June 23, 2011, the meeting at which Pelliccioni offered Husman the opportunity to work with an executive coach.
Husman's cause of action for wrongful termination in violation of public policy/discrimination is grounded on the same conduct as his FEHA discrimination claim. Because Husman has established a triable issue of material fact as to whether invidious sex or gender stereotyping related to his sexual orientation was a substantial motivating factor for his termination, summary adjudication on his common law wrongful termination cause of action should have been denied. (See Soria, supra,
Husman also cites the complaint of anti-gay discrimination he made in late September 2011 after he was notified by Bybee he had been terminated. We agree with Toyota that this complaint could not have been relevant to the decision to terminate him. (See Doe v. Capital Cities (1996)
Because Husman's FEHA retaliation claim fails, his claim for wrongful termination in violation of public policy/retaliation premised on the same allegation fails as well. (See Hanson v. Lucky Stores, Inc. (1999)
Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.