Nature of the Case
To access this section all you need to do is click here and register.
Facts
P began her employment with D as a sales representative in 1981. P was promoted to regional sales manager for Northern California and the Pacific Northwest in 1986. P was responsible for managing D's sales team and dealing with the department and specialty stores that sold D's fragrances. From 1986 to 1996, P's performance as a regional sales manager consistently was judged as “Above Expectation” and in some instances fell close to “Outstanding,” the highest possible rating, although her reviews over this period also consistently contained some criticism of her “listening” and “communication” skills. In early 1997, P was named D's regional sales manager of the year (for 1996). She received a Cartier watch and a congratulatory note from human resources manager Jane Sears praising her leadership, loyalty, motivation, and ability to inspire team spirit. P's bonuses for the years 1996 and 1997 were the highest paid to any regional sales manager in her division. P's immediate supervisor was Richard Roderick, the vice-president of sales for the designer fragrance division. Roderick reported directly to Jack Wiswall, the general manager of the designer fragrance division. Roderick and Wiswall worked out of New York, and P was based in San Francisco. In June 1997, Roderick wrote a memorandum to P's personnel file in which he criticized P's listening skills and characterized her attitude as “negative.” He noted that he had received complaints about P's attitude from several retailers. In August 1997, Roderick wrote, “P does a terrific job as a regional manager, however, she must become a better listener and she must not put a gun to the heads of the retailers in order to get them to do what needs to be done.” D restructured, retained P, and increased her responsibilities. After the merger and restructuring, P was assigned to supervise the personnel who formerly worked for the Ralph Lauren division and to supervise the marketing of Ralph Lauren fragrances in her region. Wiswall and Yanowitz toured the Ralph Lauren Polo installation at Macy's in the Valley Fair Shopping Center in San Jose. Wiswall instructed P to terminate the employment of a dark-skinned female sales associate because he did not find the woman to be sufficiently physically attractive. Wiswall expressed a preference for fair-skinned blondes and directed P to “[g]et me somebody hot,” or words to that effect. On a return trip to the store, Wiswall discovered that the sales associate had not been dismissed. He reiterated to P that he wanted the associate terminated and complained that P had failed to do so. He passed “a young attractive blonde girl, very sexy,” on his way out, turned to P, and told her, “God damn it, get me one that looks like that.” P asked for an adequate justification before she would terminate the associate. On several subsequent occasions, Wiswall asked P whether the associate had been dismissed. On each occasion, P asked Wiswall to provide adequate justification for dismissing the associate. In March 1998, in the midst of P's conversations with Wiswall regarding the termination of the sales associate, P learned that the sales associate in question was among the top sellers of men's fragrances in the Macy's West chain. P refused to terminate the sales associate. P never complained to her immediate supervisor or to the human resources department that Wiswall was pressuring her to fire the sales associate, however, nor did she explicitly tell Wiswall that she believed his order was discriminatory. Roderick began soliciting negative information about P from her subordinates. Roderick summoned P to New York. Roderick opened the meeting by asking whether she thought she had been brought in to be terminated, then criticized P for her “dictatorial” management style with regard to two account executives. During May and June 1998, Roderick and Wiswall obtained P's travel and expense reports and audited them. Complaints about a Polo promotion at Macy’s followed and eventually, P viewed the memorandums and efforts as an expression of intent to develop pretextual grounds and then terminate her. Eventually, P departed on disability leave due to stress. She did not return, and D replaced her in November 1998. P filed a discrimination charge with the Department of Fair Employment and Housing (DFEH). P alleged that D had discriminated against her on the basis of sex, age (she was 53), and religion (P is Jewish). She also alleged that D had retaliated against her for refusing to terminate the female employee whom Wiswall considered unattractive. P brought this action against D. D filed two separate motions for summary adjudication. Judgment was entered in favor of D. The court found that D had not engaged in any protected activity. The Court of Appeal reversed this aspect of the trial court's judgment, holding that: (1) P's refusal to obey Wiswall's sexually discriminatory order was protected activity under the FEHA; (2) P was not required to give D notice that Wiswall's order was discriminatory; (3) P was not precluded from relying on D's acts that occurred prior to the date of the alleged adverse action shown in the administrative complaint; (4) D's conduct constituted an adverse employment action; (5) a genuine issue of material fact remained as to whether D's ostensibly nonretaliatory reasons for the adverse employment action were pretextual; (6) a workers' compensation exclusivity requirement did not bar P's claim for negligent infliction of emotional distress derivative of her FEHA claim; and (7) D's intentional acts could not provide a basis for establishing negligent infliction of emotional distress. The appellate court reversed the judgment, remanding the matter to the superior court to permit the retaliation claim to proceed to trial. D appealed.
Support@ bsmsphd.com
Casebriefs Co