Opinion
G054983
04-18-2019
CLARE VILLACRESES, Plaintiff and Appellant, v. ABBOTT LABORATORIES et al., Defendants and Respondents.
Telep Law, Desiree Telep and Tina Dao for Plaintiff and Appellant. Atkinson, Andelson, Loya, Ruud & Romo and Scott K. Dauscher for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2015-00810047) OPINION Appeal from a judgment of the Superior Court of Orange County, John C. Gastelum, Judge. Affirmed. Telep Law, Desiree Telep and Tina Dao for Plaintiff and Appellant. Atkinson, Andelson, Loya, Ruud & Romo and Scott K. Dauscher for Defendants and Respondents.
I. INTRODUCTION
Plaintiff Clare Villacreses worked for Abbott Laboratories (Abbott) from 2004 until late 2013 as a specialist in diabetic supplies. In September 2013, she was laid off. In March 2014, the same specialist position opened up. Villacreses applied for it, but the position went to another candidate. Villacreses then filed this suit. Her theory is that in deciding not to rehire her in 2014, Abbott improperly took into account medically-related leaves of absence that, she contends, resulted in a below-par performance evaluation back in 2009. The trial court granted Abbott's motion for summary judgment, and Villacreses filed this appeal.
We affirm. In requesting summary judgment, Abbott presented evidence that the winning candidate, Massie Mokhtari, was better qualified - perhaps even decisively better qualified - for the newly-opened position than Villacreses. And Villacreses presented no substantial evidence in opposition to Abbott's motion that might tend to show the hiring was a pretext to discriminate against her for her earlier medically-related leaves of absence. All her evidence was based on the speculation that because the Abbott manager doing the hiring for the new position was aware of one of Villacreses' past leaves of absence, he must have used that factor against her.
But that connection was never made in the evidence. The link between the manager's awareness and his decision is speculative and, under the evidence submitted to the trial court, too attenuated to create a triable issue of fact as to whether Abbott entertained an illegitimate motive in preferring Moktari to Villacreses. We thus conclude the trial court correctly granted Abbott's motion for summary judgment.
II. FACTS
Clare Villacreses worked for Abbott Laboratories from June 2004 until September 2013 as a diabetes sales specialist, selling Abbott's FreeStyle Lite Meter for blood sugar testing. She was laid off in September 2013 as part of a reduction in force involving a number of diabetes sales specialists.
Looking at her nine nine years with Abbott, it is safe to say things were tough for Villacreses and her family from 2007 onward. During this period her son was born prematurely - 25 weeks - and developed a rare form of liver cancer at 18 months. Villacreses took disability leave to care for her son from January through June 2007. A few months later, in September 2007, she went on maternity leave, which lasted to December 2007. In October 2008, 10 months after her return, she took paid family leave to care for her sick son. That paid family leave lasted another three years, to November 2011. And while her declaration is not clear, it appears that she only returned to Abbott on an "intermittent basis" after her November 2011 return until her September 2013 layoff.
Caring for her son, as distinct from having her own disability, is a reasonable inference from her deposition testimony that she was never disabled during the time she was at Abbott.
On summary judgment, declarations in opposition are assumed to be correct. Villacreses' declaration is, however, somewhat opaque on what she was doing for Abbott in the period November 2011 to November 2012. Here is the relevant language: "My PFL was from November 3, 2008 to October 13, 2009. I then extended my PFL from November 3, 2009 to November 2, 2010. I still needed a third PFL as my son was still very ill, so I extended my PFL from November 3, 2010 to November 2, 2011. As of November 7, 2012, I was approved on an intermittent basis from November 4, 2012 to September 30, 2013."
In March 2010 - that is, in the middle of one of her paid family leaves - Villacreses received a performance review. Abbott's performance reviews are based on a graduated scale of four levels. Those levels ascend from 1, the lowest, through 4 the highest: NA for not achieving expectations, PA for partially achieved expectations, AE for achieved expectations, and EE for exceeds expectations. Villacreses received a sub-par PA, i.e., a 2. Her declaration in opposition to the summary judgment motion asserts the review contained "inaccurate statements" but does not specify what those statements were, why they were inaccurate, or even what they were generally about. Her declaration asserts the review did not factor in her absences due to her son having cancer. Otherwise, it contains no specifics about the review.
We reproduce all the language from her declaration bearing on the March 2010 review here: "During my employment and PFL, I received a Performance Review in March 2010. Not only were there inaccurate statements within my review, but the review did not account for my PFL, and instead, to my detriment was based on a comprehensive annual review without factoring in my absences which were due to my newborn son having cancer."
We note that whatever the undisclosed inaccuracies attendant upon Villacreses' March 2010 performance review, there is nothing in the record to indicate she appealed the review as unfairly penalizing her for being on medically-related leave. Abbott has an equal opportunity and affirmative action policy and employees have the right to complain about violations of that policy to Abbott's office of ethics and compliance and employee relations. As far as we can tell, Villacreses did not.
During the same month, March 2010, Villacreses expressed an interest in a "Key Account Manager" position, but was told by her supervisor that the hirer, Rob Stricker, "had already interviewed more stellar candidates and advised her [presumably the supervisor ] that it was in my best interest to pull out of the process."
When Villacreses called Stricker himself about her supervisor's comments, he said "he would not consider me because of my partially achieved score on my performance review." When Villacreses asked him if he knew why she got that PA score, "he stated that it was because I took time off to help a friend who had cancer." Villacreses quickly disabused Stricker of his misimpression. Villacreses "informed Mr. Stricker that it was not because a 'friend' had cancer but because my baby had cancer."
Villacreses' deposition added a little more detail to the exchange. Villacreses testified that after Stricker made his time-off-to-help-a-friend comment, she told him that her "18-month old son was diagnosed with Stage 4 hepatoblastoma." Neither Villacreses' declaration nor the excerpts from her deposition that are part of the record mention how Stricker reacted to being told it was her child who needed the care.
When Villacreses was laid off in September 2013, she signed a separation agreement with Abbott that continued her pay through the end of April 2014. That separation agreement released all claims against Abbott arising out of her employment as of November 15, 2013. Two days after her employment with Abbot ended, Villacreses received still more bad news: she discovered she had a genetic heart problem.
In March 2014, just before her continued pay was about to expire, Villacreses learned of an opening for a diabetes sales specialist in Orange County. Villacreses thought she would make an excellent candidate. She "knew the analytics, the key players," and had established connections with hospitals and associations involved in the prevention and treatment of diabetes. Villacreses applied for the position.
The decision as to whom to hire fell to Stricker, Abbott's district sales manager for their diabetes care operation. According to Stricker's declaration in support of Abbott's later motion for summary judgment, Stricker conducted phone interviews with five candidates, including Massie Mokhtari. Villacreses was not one of them. However, after Stricker narrowed down the initial five candidates to three and arranged in-person interviews for those three, he added Villacreses to the group because of her past employment with the company. In essence, she got a pass through the first round of interviews.
In preparation for that second-round interview, Stricker reviewed Villacreses' resume and her last two performance evaluations, which did not include the March 2010 PA evaluation. Those evaluations were: a PA (a 2) in 2011 and an AE (a 3) in 2012. Stricker did note that in at least one of the evaluations Villacreses had been dinged for "performance deficiencies" in her "utilization of the Cornerstone Sales Model" which Abbott expects its salespeople to use. The Cornerstone Sales Model requires Abbott salepeople to ask customers for a commitment to buy Abbott products every time they make a sales call.
Stricker was aware that Villacreses had taken time off to care for her son in 2009, but avowed in his declaration that he was "unaware" if she ever took any time off afterwards. Nor was he aware of any cardiac problems that Villacreses might have had. Nothing in Villacreses' evidence contradicts those statements.
Villacreses had her interview on April 3, 2014. She was "alarmed" it was just Stricker conducting the interview. Her previous interviews had always been with two people. A human resources officer later told Villacreses that it was hard to believe Stricker would conduct the interview alone.
But outside of her alarm about the interview being conducted by Stricker, Villacreses presented no further detail about how the interview might have been unfair to her in her opposition to Abbott's later summary judgment motion. In fact, Abbott's motion for summary judgment included Stricker's handwritten notes on a set of standardized interview questions concerned with sales techniques that were put to both Mokhtari and Villacreses.
Here is a sample of some of the standardized questions:
"With your last position, how did you go about becoming proficient? What did you do to learn the business?"
"Describe to me how you use analytical tools to drive your business?"
"How do you recharge your energy when your energy is low and you are in a challenging situation?"
"Tell me about a time when thinking outside the box did not work for you?"
"How do you anticipate your customer's need before they make them evident to you?"
"Tell me about a time when you were not able to effectively work with a customer."
"Describe to me how you gain commitment from your customerask for the business."
As noted, Stricker picked Massie Moktari. Moktari had worked as a business development manager for a company that built "information modeling for architectural, engineering and construction firms in Southern California." Closer to the medical field, Mohktari had also worked for Sanofi-Aventis (a big French pharmaceutical firm) for 10 years as a diabetes sales professional. There she had "achieved numerous awards, including the International Sales Champions Award (top 1 %) in 2005, and multiple Regional Sales Champion Awards (top 20%) in 2010, 2006, 2004, and 2003."
In his declaration, Stricker identified three reasons he chose Mokhtari for the position: the face-to-face interview, her qualifications, and - the factor that "greatly influenced" his decision - a number of unsolicited calls from Mokhtari's former employers and from a number of endocrinologists whom she had called upon when she worked for her former employer. By contrast, no one had called to recommend any of the other candidates, including Villacreses.
Villacreses didn't think she got a fair shake from Stricker. She filed this action in September 2015, asserting a variety of claims under California's Fair Employment and Housing Act (Gov. Code, § 12940 et seq.).
Abbott brought its motion for summary judgment in September 2016. The main documents bearing on the motion were Stricker's declaration in favor of the motion, portions of Villacreses' deposition submitted in favor of the motion, and Villacreses' declaration in opposition to the motion. The record on the motion does not contain any depositions of Stricker. The trial judge noted that given the release Villacreses had signed in November 2013, her claims were necessarily limited to the fact she was not hired for the position that opened up in April 2014. In that regard, the judge ruled Villacreses had failed to raise a triable issue of fact to rebut Abbott's legitimate, nondiscriminatory reason to not selecting Villacreses for its new position. Villacreses has timely appealed from the ensuing judgment.
III. DISCUSSION
As the trial judge noted, Villacreses released all her claims up to November 15, 2013. Such releases are enforceable. (Linsley v. Twentieth Century Fox Film Corp. (1999) 75 Cal.App.4th 762, 769.)
To the degree that Villacreses' complaint is based solely on events taking place prior to November 2013 - such as her layoff, alleged harassment for taking medically-related time off in the period 2010 through 2013, or disability discrimination during the same period - those claims have now been relinquished. Indeed, her reply brief explicitly abandons any attempt to argue otherwise: "Appellant is not alleging causes of action [f]or discrimination as to the 2009 and 2010 issues and circumstances, this case wholly rests upon and relates to the 2014 discrimination and the causal effect of the foregoing." (Reply Br. at p. 5.) But while Villacreses released claims arising prior to her layoff, she did not release any claim arising out of the 2014 hiring decision which, she now argues, was animated by improper discrimination against her medical leave taken back in the period 2010.
Ever since McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 (McDonnell Douglas), California and federal courts have analyzed whether state and federal civil rights claims are susceptible to summary judgment under a set of burden shifts that resemble a tennis point. (See Armin v. Riverside Community Hospital (2016) 5 Cal.App.5th 810, 830.) First, the plaintiff must be able to make a prima facie case of some improper adverse action against the plaintiff. (E.g., Mackey v. Board of Trustees of California State University (2019) ___ Cal.App.5th ___, ___ ["Under the McDonnell Douglas framework, a plaintiff bears the initial burden to establish a prima facie case of race-based discrimination."] .) If the plaintiff meets this burden, then the defendant must proffer a legitimate, nondiscriminatory motive for the adverse action. (Ibid.) If the defendant does so, then the burden shifts back to the plaintiff to present evidence the legitimate, nondiscriminatory motive was really a pretext to hide an illegitimate motive. (Ibid., see McDonnell Douglas, supra, 411 U.S. at p. 804 [plaintiff must have opportunity to show pretext] with Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 213 [defendant must show illegitimate motive was not substantial factor in adverse action].) If the plaintiff does not show evidence raising a triable issue as to whether an illegitimate motive was at least a substantial factor in the adverse decision, summary judgment is appropriate. (E.g., Castro-Ramirez v. Dependable Highway Express, Inc. (2016) 2 Cal.App.5th 1028, 1059.)
Our Supreme Court has identified the four basic elements of a prima facie case in Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355: (1) membership in a protected class; (2) qualification for the position (or competent performance); (3) adversity of employment action; and (4) - this is the tough one -"some other circumstance suggest[ing a] discriminatory motive."
Villacreses certainly did establish three of the four elements of a prima facie case: (1) membership (she exercised a right to family leave), (2) qualification (there is nothing to suggest that she could not perform the job of an Abbott diabetes sales specialist), and (3) adversity (she didn't get hired). But (4), the "other circumstances" element, seems to us insufficient to show even a prima facie case. Villacreses' evidence merely shows is that Stricker (a) was aware Villacreses had legitimately invoked family leave back in 2009 on behalf of her son and (b) he had reason to doubt the validity of the 2009 PA evaluation in 2010.
The case before us, however, centers on whether Stricker entertained some discriminatory motive as a substantial factor in 2014 when he evaluated Villacreses for the newly-opened position. And that's where Villacreses' evidence comes up short on establishing even a prima facie case. Villacreses' evidence established only a single encounter in 2010 suggesting, at most, that Stricker should have realized that Villacreses should have received a better evaluation in 2009. There is no causal link to Stricker's 2014 decision, particularly given that Villacreses did not contradict Stricker's declaration that he was unaware, in 2014, of any further time off after 2009 or of any heart condition that Villacreses had.
In Trop v. Sony Pictures Entertainment, Inc. (2005) 129 Cal.App.4th 1133 (Trop), the appellate court ruled that an employee claiming pregnancy discrimination failed to make a prima facie case because the relevant decision maker was unaware the plaintiff was pregnant before she was fired. (Id. at p. 1145.) In Trop, in fact, statements more invidious than anything Stricker said here were held to have failed the test of the needed causal link between an illegitimate motive and the adverse action - and one of those statements was made roughly five weeks prior to the pregnant employee's firing, rather than, as here, four years before. Trop suggests Villacreses' evidence was not sufficient to show even a prima facie case of a Fair Employment and Housing Act violation.
Trop involved the decision of a movie producer to fire her personal assistant. At an office Christmas party on December 13, the assistant played with an infant girl. The assistant remarked, in her boss's presence, "'It looks like I get to have one of my own.'" Her boss's reaction was dyspeptic: "'Not while you are working for me.'" (Trop, supra, 129 Cal.App.4th at p. 1140.) The appellate court later held that the boss's comment was insufficiently causally related to the decision to fire her in late January of the next year to show a prima facie case. (Id. at p. 1148.)
Unlike the isolated statement in Tropin which the producer arguably evidenced an intent to fire the assistant if she ever became aware the assistant was pregnantthere is no evidence here that Stricker ever questioned the legitimacy of properlyinvoked family leave to care for a child with cancer.
In any event, all doubt about the propriety of the trial court's decision is removed when we consider the reason Villacreses was not hired in April 2014 - the company hired a better qualified candidate. Even assuming a prima facie case, Villacreses did not overcome Abbott's legitimate, nondiscriminatory reason for not hiring her: the company hired a better qualified candidate.
To show pretext in that regard, Villacreses would have had to show her qualifications were either "'"vastly superior"'" to those of Mohktari (Reeves v. MV Transportation, Inc. (2010) 186 Cal.App.4th 666, 677 (Reeves), quoting Chappell-Johnson v. Bair (D.D.C. 2008) 574 F.Supp.2d 87, 101, quoting Hammond v. Chao (D.D.C. 2005) 383 F.Supp.2d 47, 57) or at least substantially superior to her (Reeves, supra, 186 Cal.App.4th at p. 675.)
While not all cases hold that "the disparity in candidates' qualifications 'must be so apparent as to jump off the page and slap us in the face to support a finding of pretext,'" (Raad v. Fairbanks North Star Borough School Dist. (9th Cir. 2003) 323 F.3d 1185, 1194, the precedents do consistently require that the disparity be substantial to support an inference of discrimination."
"[W]here an employer's proffered non-discriminatory reason for its employment decision is that it selected the most qualified candidate, evidence of the applicants' competing qualifications does not constitute evidence of pretext 'unless those differences are so favorable to the plaintiff that there can be no dispute among reasonable persons of impartial judgment that the plaintiff was clearly better qualified for the position at issue.'" (Millbrook v. IBP, Inc. (7th Cir. 2002) 280 F.3d 1169, 1180-1181, italics added.)
Here, any disparity runs in the opposite direction. To be sure, Villacreses had a number of things going for her: She is a registered nurse, she has a Master's Degree, and she is certified as a diabetes educator. She also (obviously) had experience working for Abbott selling its diabetes related products.
But once again, misfortune dogged her. Mokhtari presented at least an equal, if not greater array, of advantages for the sales position. She had the loyalty of customers who were willing to call to recommend her. She had worked for another big pharmaceutical firm for roughly during the same period as Villacreses had worked for Abbott, during which time Mokhtari accumulated no less than one international sales champion award plus five regional champion awards. Mokhtari also had experience in information modeling, albeit for other industries, that would be useful if transferred to health care providers. Her experience even included work as a diabetes supplies sales professional.
In her reply brief, Villacreses tries to spin this disparity to her advantage, remarking that Stricker was willing to speak with third parties when he didn't speak with Villacreses' former supervisor. (See Reply Br. at pp. 4-5.) That point, however, only undercuts Villacreses' hoped-for inference that Stricker was unfairly holding her 2009 medically-related leave against her. The natural inference is that Stricker was being scrupulously fair and doing his best not to be influenced by any negative information that might by supplied by that supervisor, who, after all, was the one who gave Villacreses the low PA evaluation in 2009.
Indeed, we note that two of Villacreses' three advantages involved credentialing qua credentials (being a registered nurse, having a master's degree) while Mohktari's advantages were tangible and proven. In a job involving sales, Mohktari brought a proven track record of what any objective observer would have to conclude was a series of stellar sales performances. This sank the plaintiff's claim of pretext in Reeves and does so here as well.
In Reeves, plaintiff, aged 56, sought a staff attorney position in a corporate general counsel's office. (See Reeves, supra, 186 Cal.App.4th at p. 669.) The winning candidate was a mere 40 years old, and there was no question the plaintiff had indeed made out a prima facie case of age discrimination. (Id. at p. 674.) But he lost on pretext. Similar to the case before us, the plaintiff emphasized his credentials -in Reeves it was for a position that was going to involve considerable labor and employment law work. The plaintiff's area of concentration tilted toward the labor law side, and he argued that in four of the five areas listed in the published job notice he appeared to be the better qualified candidate. (See id. at p. 676.) The winning candidate's strength, by contrast, was in employment law. And as in the present case, the winning candidate brought with her recommendations, plus valuable real-world experience. "Even if plaintiff's labor law background could be deemed to have outweighed [the winner's] employment law experience to some degree, [the winner] had a number of advantages that plaintiff did not. She had been recommended by an attorney [the hirer] respected, she had a New York bar membership that might be useful to the company, and she had law firm experience that [the hirer] valued." (Id. at p. 677.) --------
Finally, we note that Abbott scripts its job interviews. The company submitted Stricker's notes on both the interviews of Villacreses and Mokhtari, and Villacreses points to nothing in those handwritten notes to suggest that Stricker was merely going through the motions. While we can sympathize with Villacreses' phenomenal and heart-rending string of bad breaks, we cannot find error in the record.
IV. DISPOSITION
The judgment is affirmed. Respondent is to recover its costs on appeal.
BEDSWORTH, J. WE CONCUR: O'LEARY, P. J. FYBEL, J.