Opinion
Case No. 01-03969R JWJx
September 10, 2001
JAMES W. COLBERT III (S.B. #47605), MATTHEW P. EASTUS (S.B. #187747), O'MELVENY MYERS LLP, Los Angeles, California, Attorneys for Defendants Greenberg Traurig, P.A. and Greenberg Traurig LLP.
STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW
In accordance with Rule 56 of the Federal Rules of Civil Procedure, the Motion for Summary Judgment of Defendants Greenberg Traurig, P.A. and Greenberg Traurig LLP (collectively, "Greenberg Traurig" or "Defendants") came on regularly for hearing before this Court on August 20, 2001, the Honorable Manuel L. Real presiding.
The Court, having considered the points and authorities submitted by the parties, the declarations and exhibits thereto, the relevant pleadings and papers on file with the Court, and having heard the oral argument of counsel thereon, and having fully considered the law and the facts disclosed by this record, hereby makes the following findings of uncontroverted facts and conclusions of law:
STATEMENT OF UNCONTROVERTED FACTS
1. Plaintiff Sheila Tiner ("Tiner" or "Plaintiff") worked for Greenberg Traurig in Los Angeles as a paralegal from January 1, 2000 until her resignation on February 22, 2001. (Pl.'s First Am. Compl. ¶ 24; Pl.'s Dep. I at 177, 254-55.) Initially, Tiner worked primarily for the attorney for whom she had formerly worked, Carol Perrin ("Perrin"), before Perrin herself joined the Los Angeles office of Greenberg Traurig. (Pl.'s First Am. Compl. ¶¶ 4, 7, 24; Pl.'s Dep. I at 11-12.)
2. Tiner initially claimed and received overtime from Greenberg Traurig in early 2000. (Pl.'s Dep. II at 297, 300; Pl.'s Dep. I at 85-88, 90, 107-08.) In March 2000, Ms. Perrin told Tiner that she should not claim overtime. (Pl.'s Dep. I at 91-92; Pl.'s Dep. II at 297; Pl.'s First Am. Compl. ¶ 25.)
3. According to Tiner, Perrin had arranged a substantial increase in Tiner's base salary from approximately $40,000 while working for Perrin (later raised to $50,000) to $64,000 at Greenberg Traurig, and Perrin called Tiner an "ungrateful bitch" for then claiming overtime, too. (Pl.'s Dep. I at 24, 79, 83, 85-86, 92, 104-06, 124-26.). Despite the claim in the pleadings that there were multiple obscenities used by Perrin in connection with her discussion of the overtime issue, (Pl.'s First Am. Compl. ¶ 25), this comment was the only rude remark Tiner could recall. (Pl.'s Dep. I at 105-06.)
4. Tiner claims that Perrin thereafter often refused to speak with plaintiff or spoke to her in a hostile manner. (Pl.'s First Compl. ¶ 26.)
5. Tiner subsequently complained to Matt Steinberg, another Greenberg Traurig attorney, in April 2000 about not receiving overtime. (Pl.'s Dep. I at 137-38; Pl.'s First Am. Compl. ¶ 27.) Thereafter, Greenberg Traurig attorneys Steve Goldberg and Larry Hoffman advised Tiner that she could claim overtime not only going forward but also for back overtime during the period Perrin had forbidden such claims. (Pl.'s Dep. II at 297-303; Pl.'s Dep. I at 93-94, 109-110, 138-39.)
6. Tiner was paid for all current and past overtime she requested in August 2000, and the overtime issue was "resolved to [her] satisfaction" by then. (Pl.'s Depo. II at 296-97, 304, 359.)
7. Tiner's work for Perrin ebbed starting in March 2000, and Tiner began transitioning into work for attorneys other than Perrin. (Pl.'s Dep. II at 356-57.) It took Tiner through the summer months of 2000 to finish her projects and accumulated work for Perrin. (Id. at 358, 363-64.) By the time the overtime issue was resolved in August 2000, however, Tiner was not working for Perrin at all. (Id. at 357-59, 364.)
8. Moreover, at the office manager's suggestion, Tiner had even been moved to the other side of the building from Perrin by then. (Id. at 356-57.)
9. In April or May 2000, a controversy arose in Greenberg Traurig's Los Angeles office regarding Perrin's billing practices. Perrin was accused — by persons other than Tiner — of billing clients for the time of other attorneys and paralegals, including Tiner, as though it were her own. (Pl.'s Dep. I at 141-42, 172, 186-89.)
10. Perrin explained that she merely used the time records of the attorneys and paralegals in question as an aid to reconstruct her own time on the matters and billed only for her own time (so reconstructed) and not for theirs. (Id. at 232-34.) Although Tiner initially testified at her deposition that she believed the charges against Perrin, she subsequently conceded that she had no reason to doubt the truth Perrin's explanation. (Compare Pl.'s Dep. I at 156-57 with Id. at 232-36 (stating that plaintiff found Perrin's explanation of her billing methods "credible" and that plaintiff had no reason to believe Perrin was lying), and Id. at 147-48, 153 (plaintiff stated that she did not think there was anything fraudulent about Perrin's billing at her former law office, and nothing in the billing was different at Greenberg Traurig).)
11. Tiner was not a "whistleblower" who accused Perrin of billing fraud. (Pl.'s Memo. of Pts. Auth. in Supp. of Pl.'s Opp. to Mot. for Prot. Order at 14 ("[A]s plaintiff has already stated, she has not asserted a whistleblower claim . . . .") (emphasis added); Id. ("Again, this is not a whistleblower action.") (emphasis added).). At her deposition, plaintiff admitted that she was not a whistleblower, had no reason to believe that there was any billing fraud on which to blow the whistle, was not asked to do any improper act (indeed, she did not draft client bills while at Greenberg Traurig), and was not disciplined or even criticized, much less terminated, for anything she did in connection with the billing fraud issue.
Pl.'s Dep. I at 151, 221-22 (stating that the only time the Plaintiff communicated any information about the billing fraud was when Hoffman interviewed her as part of an investigation that others unknown to her had initiated); Pl.'s Dep. I at 150-51 (Plaintiff admitted that Hoffman interviewed her and asked her for information, not that she blew the whistle).
Pl.'s Dep. I at 152-53 ("Q. At the time you were at Carol Perrin's office, did you think she was engaged in fraudulent billing practices? A. I didn't know. Q. You did the billing. Did you think there was anything fraudulent about what you were doing? A. I didn't think so no. Q. And you did not think anything different was being done at Greenberg, Traurig? A. No.").
Pl.'s Dep. I at 148 ("Q. But you did not do the billing, you did not maintain the billing records and you didn't do the billing at Greenberg, Traurig? A. That's correct. Q. You didn't have anything to do with the billing at Greenberg, Traurig? A. No, not after the first few weeks where we were going through a transition."); id. at 152 ("Q. And as far as you knew, you hadn't engaged in any fraudulent billing practices, had you? A. No.).
Pl.'s Dep. II at 362.
12. Plaintiff has conceded in deposition that she was not in a position to know whether billing fraud had occurred or not because she did not do the billing. (Pl.'s Dep. I at 148 ("Q. But you did not do the billing, you did not maintain the billing records and you didn't do the billing at Greenberg, Traurig? A. That's correct. Q. You didn't have anything to do with the billing at Greenberg, Traurig? A. No, not after the first few weeks where we were just going through a transition."); id. at 158 ("Q. Have you ever seen such bills? A. Have I seen bills? Q. Yes. A. No. The final bills, no. Q. So you don't have any understanding of what bills were sent out that might involve your work? A. No.").)
13. Tiner was never asked to commit fraud, to lie or to do anything she thought improper. (Pl.'s Dep. I at 152 ("[H]ad anyone communicated to you the idea that you personally, might be somehow implicated in this alleged wrongdoing? A. No. Q. And when you were talking to Hoffman, you did not think that you were a target of any accusation or under suspicion in any way? A. No. Q. And as far as you knew, you hadn't engaged in any fraudulent billing practices, had you? A. No.") (emphasis added); id. at 153.)
14. Perrin did not ask Plaintiff to lie during the billing fraud investigation. (Pl.'s Dep. I at 229 ("Q. Did Ms. Perrin tell you she didn't want you to tell the truth? A. She never said that, no.").)
15. Plaintiff stated that questions about the billing accusations against Perrin from other employees made her "feel like" she had been accused of wrongdoing, but she conceded that no one criticized her, no one actually accused her of billing fraud, and no one faulted her for Perrin's alleged fraud. (Pl.'s Dep. II at 361-62.)
16. Plaintiff has admitted that she was not asked to violate any statute or perform an illegal act, nor was she asked to engage in a cover up: "Q. Were you ever asked to do anything in connection with the billing fraud issue, the investigation of the billing fraud issue, that you thought was improper, you shouldn't be asking me to do that? A. No." (Pl.'s Dep. II at 362-63 (emphasis added).)
17. Plaintiff did not think that the actions she was asked to and did perform while working for Perrin or for Defendants were fraudulent. (Pl.'s Dep. I at 153 ("Q. You did the billing [at Perrin's office]. Did you think there was anything fraudulent about what you were doing? A. I didn't think so, no. Q. And you did not think that anything different was being done at Greenberg, Traurig? A. No.").)
18. No one accused plaintiff of wrongdoing in connection with the alleged billing fraud. (Pl.'s Dep. II at 361-62.)
19. No one criticized plaintiff about her participation in the billing fraud investigation either, negating the coercion allegation. (Pl.'s Dep. II at 362 ("Q. And no one came to you and said, Sheila Tiner, you're behaving badly. That never happened? A. No. Q. Nobody criticized you in any way with respect to the billing fraud issue; correct? A. You mean against me? Q. Yes. A. No.").) Moreover, plaintiff testified that she did not actually do the billing (for Perrin or otherwise) after the first few weeks that she worked for the defendants, (Pl.'s Dep. I at 148), and thus logically could not have engaged in such fraud.
20. Tiner does claim that she became "very stressed" just being in the office because of her knowledge of the allegations of billing fraud against Perrin. (Pl.'s Dep. II at 358-59.)
21. The office was still "buzzing" about Perrin's alleged billing fraud into the fall, which upset Tiner further. (Id. at 359, 361.)
22. In September 2000, one of the senior shareholders of Greenberg Traurig, Mr. Larry Hoffman, interviewed Tiner for about five hours as part of his investigation of the alleged billing fraud. (Pl.'s Dep. II at 332-33; Pl.'s Dep. at 187, 220-21.) He asked Tiner "blanket general questions" about "how [Tiner] worked with Carol [Perrin] and what we did and that type of things." (Pl.'s Dep. II at 331-32; Pl.'s Dep. I at 147, 149-51.) Tiner could only answer Mr. Hoffman's questions about what work she actually did for Perrin's clients since Tiner never saw the allegedly fraudulent bills. (Pl.'s Dep. II at 333-34.) Tiner just turned in her time sheets to Perrin and never knew what was entered on the client bills. (Id. at 376-78.)
23. This interview was the only time Tiner thought she was providing any information pertinent to the alleged billing fraud to Greenberg Traurig management. (Pl.'s Dep. I at 221-22.)
24. Mr. Hoffman did not appear dissatisfied with Tiner's answers, and no one at Greenberg Traurig ever expressed displeasure with plaintiff for her conduct in connection with the billing fraud investigation. (Pl.'s Dep. II at 354-55, 361-62.)
25. Aside from the one episode in March 2000 regarding overtime (not billing), Tiner was never disciplined or criticized for any of her actions while employed by Greenberg Traurig. (Pl.'s Dep. II at 356; id. at 304-05, 359.)
26. Tiner claims that Perrin did orally complain to her one time in March 2000 after she sought overtime, using obscenities and "an angry and abusive tone." (Pl.'s First Am. Compl. ¶ 25.) Thereafter, Perrin was "hostile" and incommunicative towards plaintiff. (Id. ¶ 26.) Plaintiff has conceded that, other than the above-described conduct by Perrin, she was not subjected to any discipline or even threatened with reprisals because of her overtime request. (Pl.'s Dep. II at 356.) Indeed, even Perrin's actions did not rise to the level of discipline and did not ultimately affect her since she received all of the overtime she sought. (Pl.'s Dep. I at 110, 300-05, 355-56.)
27. Tiner claims that she became disabled due to anxiety and to stress-induced back pain and that she commenced a leave of absence from defendants' employ for that reason on October 3, 2000. (Pl.'s Dep. I at 8, 175-76, 254; Pl.'s Dep. II at 317-18.)
28. Plaintiff also submitted a workers' compensation claim dated October 3, 2000, which stated that the Plaintiff was suffering from stress affecting multiple body parts. (Pl.'s Dep. II at 289-90, 292-94 Ex. 1002.) The stress-related condition had begun in August or September 1999 while Tiner worked for Perrin at her former business. (Pl.'s Dep. I at 9, 98.) Tiner experienced sufficient stress caused by working with Perrin prior to plaintiff's employment by Greenberg Traurig that she had already started therapy for it before January 2000. (Pl.'s Dep. II at 321-23; Pl.'s Dep. I at 10, 98.) The workers' compensation caner denied plaintiff's claim. (Pl.'s Dep. II at 305, 320.)
29. Tiner, while on leave, resigned in February 2001. (Pl.'s Dep. I at 177, 254-55.)
30. Tiner admits she was not terminated by defendants. (Pl.'s Dep. I at 254.)
31. Tiner claims that the stress at work forced her to quit, citing her inability to receive disability benefits as one of the reasons she resigned. (Pl.'s Dep. I at 133, at 253-56.)
CONCLUSIONS OF LAW
32. Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment is appropriate where there is no "genuine issue as to any material fact" and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.Proc. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
33. Under Rule 56, a court should grant summary judgment
against a party who fails to make a showing sufficient to establish the existence of element essential to that party's case, and on which that party will bear the burden of proof at trial . . . since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); T.W. Elec. Serv. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). "The mere existence of a `scintilla' of evidence is not enough to create a `genuine issue of material fact' in order to preclude summary judgment." Nelson v. Pima Community College, 83 F.3d 1075, 1081 (9th Cir. 1996). "[M]ere allegation and speculation do not create a factual dispute for purposes of summary judgment." Id. at 1081-82.
34. Plaintiff has asserted against Greenberg Traurig a claim for termination in violation of public policy. "In order to sustain a claim of wrongful termination in violation of fundamental public policy, [the plaintiff] must prove that [her] dismissal violated a policy that is (1) fundamental, (2) beneficial for the public, and (3) embodied in a statute or constitutional provision." Turner v. Anheuser-Busch, Inc., 7 Cal.4th 1238, 1256 (1994).
35. "[P]ublic policy cases fall into one of four categories: the employee (1) refused to violate a statute; (2) performed a statutory obligation; (3) exercised a constitutional or statutory right or privilege; or (4) reported a statutory violation for the public's benefit." Green v. Ralee Eng'g Co., 19 Cal.4th 66, 76 (1998). Plaintiff does not urge a claim under Categories (2) or (4).
36. In addition to establishing the elements of one or more of the four recognized categories of public policy cases, Tiner must also establish the elements of constructive termination since she was not fired by defendants.
37. Constructive discharge is not a separate cause of action under California law but rather is a device that allows a plaintiff to substitute a forced resignation due to objectively intolerable conditions for an actual termination. See Turner v. Anheuser-Busch, Inc., 7 Cal.4th 1238, 1248 (1994) ("A constructive discharge is the practical and legal equivalent of a dismissal — the employee's resignation must be employer-coerced, not caused by the voluntary action of the employee or by conditions or matters beyond the employee's control."); id. at 1246 ("[A]n employee may not simply `quit and sue,' claiming he or she was constructively discharged. The conditions giving rise to the resignation must be sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job to earn a livelihood and to serve his or her employer. The proper focus is on whether the resignation was coerced, not whether it was simply one rational option for the employee."); id. at 151-53.
38. A plaintiff may properly invoke the constructive discharge theory only when
the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee's resignation that a reasonable employer would realize that a reasonable person in the employee's position would be compelled to resign.
Addy v. Bliss Glennon, 44 Cal.App.4th 205, 218 (1996) (quoting Turner, 7 Cal.4th at 1251).
39. The test for a constructive discharge is an objective one. Turner, 7 Cal.4th at 1248 (stating that "the standard by which a constructive discharge is determined is an objective one — the question is whether a reasonable person faced with the allegedly intolerable employer actions or conditions of employment would have no reasonable alternative except to quit").
40. Any harsh conditions relied upon by plaintiff as proof that she was forced to resign must have been "in excess of those faced by his [or her] co-workers. He [or she] is not, however, guaranteed a working environment free of stress." Id. at 1247 (quotation marks omitted).
Tiner's Category (1) Claim
41. As to Tiner's Category (1) claim, a plaintiff who "does not show that he was ever asked to participate in any illegal activity or that he was subjected to harassment for performing a statutory obligation or exercising a statutory right or privilege . . . cannot assert a wrongful discharge claim in the classic Tameny [v. Atlantic Richfield Co., 27 Cal.3d 167 (1980)] sense." Turner, 7 Cal.4th at 1258. The claimant "is limited to an assertion of `whistleblower harassment,' i.e., a contention that he was harassed and ultimately forced to quit because he reported to [his employer] `an alleged violation of a statute of public importance.'" Turner, 7 Cal.4th at 1258. Since Tiner has flatly disavowed making a whistleblower claim, she is thus left with having to show that she refused to commit an illegal act. See id.
42. Because plaintiff has conceded that she was not asked to perform an illegal act in connection with the claimed billing fraud, she cannot satisfy the first part of a prima facie case for a Category (1) claim, i.e., she did not "refuse" to engage in an illegal act. See Macionski, 1995 WL 406172, at *4.
43. Additionally, Tiner can show no constructive discharge causally related to the claimed billing fraud. The fact that the alleged billing fraud, if it occurred, may have been unlawful — even criminally — is not a sufficient basis for quitting. Turner, 7 Cal.4th at 1254 ("The mere existence of illegal conduct in a workplace does not without more, render employment conditions intolerable to a reasonable employee."). General stress in the office, even if related to the billing fraud, cannot justify a constructive discharge claim. Addy, 44 Cal.App.4th at 218-19 (quoting Turner, 7 Cal.4th at 1246-47) (stating that an employee may not be "`unreasonably sensitive to his [or her] working environment'" and that an employee is not guaranteed an environment "`free of stress'").
Tiner's Category (3) Claim
44. As to Tiner's Category (3) claim, she can show no adverse employment action stemming from her request for overtime — a request that was granted.
45. "An employer's decision which has intangible and indirect effects on an employee's status does not qualify as `adverse' action." Lefevre v. Design Prof. Ins. Cos., No. C-93-20720 RPA, 1994 WL 544430, at *1 (N.D. Cal. Sept. 27, 1994). See also Kortan v. State of Cal., 5 F. Supp.2d 843, 853 (C.D. Cal. 1998) (stating, in context of Title VII retaliation claim, that "`[h]ostility from fellow employees . . . [is] not [an] adverse employment action'" and holding that supervisor's laughing at the plaintiff, initially giving her a poor performance rating that was later raised, denying transfer, and denying access to complaint file did not constitute adverse employment action), aff'd, 217 F.3d 1104, 1112 (9th Cir. 2000) (affirming dismissal of retaliation claim and noting that a supervisor being "less civil," staring at the plaintiff in a "hostile fashion," and becoming "more critical of [plaintiff's] performance" was not adverse employment action); Steiner v. Showboat Oper. Co., 25 F.3d 1459, 1465 n. 6 (9th Cir. 1994) (affirming dismissal of retaliation claim and suggesting that conduct short of a demotion, being put in a less favorable job, or being burdened with more responsibilities does not qualify as adverse action); Quinn v. Salvation Army, 83 Fair Empl. Prac. Cas. (BNA) 172, 2000 WL 888065, at * (C.D. Cal. Jan. 18, 2000) (stating that "[e]xamples of adverse employment actions include those that impact the `hiring, granting of leave, discharging promoting, and compensating' of employees" and holding that minor workplace incidents did not constitute adverse action). No such action was taken by Greenberg Traurig.
46. Nor can Tiner show a constructive discharge causally related to her request for overtime even if Perrin's personal reaction to that request were assumed, arguendo, to be an adverse employment action by Greenberg Traurig.
47. "In general, [s]ingle, trivial, or isolated acts of [misconduct] are insufficient to support a constructive discharge claim." See Addy, 44 Cal.App.4th at 219 (quoting Turner, 7 Cal.4th at 1247) (additional quotation marks and citations omitted).
48. The conduct alleged by plaintiff in support of her overtime retaliation claim — that Perrin called her obscenities and was hostile and incommunicative towards her — does not suffice for a constructive discharge because neither a single instance of obscenities delivered by Perrin nor her refusal to speak directly to plaintiff amounts to the sort of "obnoxious or aggravated" behavior that would compel plaintiff to resign, Turner, 7 Cal.4th at 1255, particularly since plaintiff did not have to work with Perrin by late August 2000. See Addy, 44 Cal.App.4th at 219.
49. Perrin's alleged actions in connection with plaintiff's request for overtime also did not constitute the sort of "continuous pattern of harassment or aggravating conditions," Turner, 7 Cal.4th at 1255, that could warrant plaintiff's resignation. Consequently, Plaintiff was not constructively discharged as a matter of law. Turner, 7 Cal.4th at 1247-48.
Ruling on Motion
50. There are no genuine issues of material fact presented by this motion. Greenberg Traurig is entitled to summary judgment under Rule 56 (b). Moreover, since the claim against Greenberg Traurig is separate from those asserted against the other parties hereto, there is no just reason for delay in entry of that judgment, and judgment should be entered forthwith pursuant to Rule 54(b).
IT IS SO ORDERED.
ORDER RE REMAND
Upon consideration of the papers filed in support of, and in opposition to, the renewed motion of defendants Perrin for remand of the first, second and third causes of action of the first amended complaint; IT IS HEREBY ORDERED, ADJUDGED AND DECREED that said motion is granted and the first, second and third causes of action to the first amended complaint are hereby remanded to the Superior Court of the County of Los Angeles, State of California.
FINAL JUDGMENT
The Court, having considered Motion for Summary Judgment of Defendants Greenberg Traurig, P.A., and Greenberg Traurig, LLP (collectively, "Greenberg Traurig"), Plaintiff Sheila Tiner's opposition thereto, the exhibits and testimony submitted in support of and in opposition to said motion, the other documents on file, and the applicable law, has concluded that Greenberg Traurig's motion should be granted for the reasons set forth in the Court's Statement of Uncontroverted Facts and Conclusions of Law.
It is, therefore, ORDERED, ADJUDGED AND DECREED that Plaintiff shall take nothing by her claim herein against defendants Greenberg Traurig, P.A. and Greenberg Traurig LLP, said claim hereby being DISMISSED with prejudice, and said defendants shall recover their costs of suit herein.
It is further ORDERED that, since the Court has already severed and remanded the Plaintiff's claims against co-defendants Carol Perrin and Law Office of carol Perrin, this JUDGMENT is to be entered forthwith as a final judgment.