Drimmel v. SettlementOne CA4/1 (2013) · DecisionDepot
Drimmel v. SettlementOne CA4/1
California Court of Appeal Jul 5, 2013 No. D060144Unpublished
Filed 7/5/13 Drimmel v. SettlementOne CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE
STATE OF CALIFORNIA
SYLVIE DRIMMEL , D060144
Cross-complainant and Appellant,
v. (Super. Ct. No. 37-2007-00073917- CU-BT-CTL) SETTLEMENTONE CREDIT CORP.,
Cross-defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County, Joel M.
Pressman, Judge. Affirmed.
Bleiler & Bond, Diane E. Bond; Simpson & Moore and Sean Simpson for Cross-
complainant and Appellant.
The Cabrera Firm and Guillermo Cabrera for Cross-defendant and Respondent.
In this employment discrimination case, an employee was promoted from her
position as the operations manager of one portion of her employer's title, escrow and
credit information business to vice-president of a new and separate marketing entity her
employer established. Following her promotion, a male who was younger than the
employee took over her position as operations manager. The new marketing entity did
not do well and, according to the employer, the employee did not perform well in her new
position. The employee was terminated, and the new entity was discontinued.
The trial court rejected the employee's contention that in losing her position as
operations manager the employee was the victim of unlawful discrimination. The trial
Because the marketing program was discontinued and no one replaced Drimmel as vice-
president of corporate development, she cannot establish any discriminatory motive in
that manner.
Drimmel is then left with the fact SettlementOne chose not to displace the person
who took her former position as director of operations. She argues she presented
evidence she was more qualified than her replacement, and SettlementOne still needed a
director of operations. We cannot accept the proposition that, by itself, SetttlementOne's
unwillingness to terminate or demote Drimmel's replacement gives rise to any inference
of discriminatory animus. If Drimmel had successfully shown that her promotion was
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not bona fide, this argument might be persuasive. In that hypothetical situation, in which
the record showed that the promotion was only a pretext for SettlementOne's plan to
replace her with a younger male, a reasonable inference of discriminatory intent would
arise. However, as we have discussed, the record here supports the trial court's finding
that Drimmel's promotion and initial replacement as director of operations with a younger
male was bona fide and lawful. The fact the decision to promote the replacement was
lawful and nondiscriminatory undermines any inference the later decision to retain him
was somehow colored by discriminatory intent.
Also undermining any inference of discriminatory intent in SettlementOne's
decision to retain Drimmel's replacement is the fact Drimmel was initially hired and
promoted by Jevin Sackett. "'[W]here the same actor is responsible for both the hiring
and the firing of a discrimination plaintiff, and both actions occur within a short period of
time, a strong inference arises that there was no discriminatory motive.'" (Nazir v. United
Airlines, Inc. (2009) 178 Cal.App.4th 243, 272 (Nazir).)1
Drimmel also relies on two alternative theories to establish discriminatory intent.
Neither is persuasive:
Drimmel contends she demonstrated discriminatory animus by showing that the
reasons SettlementOne offered for her termination were false. Although discriminatory
intent may be inferred when an employer offers false justification for an adverse
1 Although Drimmel spends a good deal of effort criticizing the so-called "same actor" doctrine where, as here, it is treated as a factual inference to be weighed along with other evidence rather than as a mandatory presumption, it is appropriate. (See Nazir, supra, 178 Cal.App.4th at p. 273.) 12
employment action (see Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S.
133, 143, 148), here the trial court found, on substantial evidence, that the reasons offered
by SettlementOne—Drimmel's poor performance in the new position and the
deteriorating real estate market—were its actual reasons for terminating her employment.
The fact Drimmel did not meet her initial recruitment goals and the actual later collapse
of the real estate market in 2008 support a finding that performance issues and legitimate
economic fears in fact caused Sackett to terminate the program and Drimmel.
Importantly, as the trial court noted: "'It is the employer's honest belief in the stated
reasons for firing an employee and not the objective truth or falsity of the underlying
facts that is at issue[.]'" (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426,
436.)
Drimmel also argues the trial court should have inferred discriminatory intent
from evidence she presented from other employees about what they perceived as
Sackett's preference for younger employees in general and younger attractive women in
particular. The trial court expressly rejected the notion that this evidence undermined the
reasons offered by SettlementOne for Drimmel's discharge. The trial court's
unwillingness to draw a connection between what the other employees believed about
Sackett and the circumstances surrounding Drimmel's actual discharge is, in turn,
supported by the fact Sackett hired and promoted Drimmel. (See Nazir, supra, 178
Cal.App.4th at p. 272.) In short, the trial court was more persuaded by Sackett's actual
hiring and promotion of Drimmel than by any biases perceived by other employees. On
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appeal, we are in no position to disturb this resolution of a factual issue.
V
Drimmel also argues the trial court erred in permitting SettlementOne to offer
evidence of the number of employees it laid off in 2007 and their age and gender.
SettlementOne offered the evidence to demonstrate that in 2007 its business was rapidly
shrinking and layoffs were necessary and that it did not discriminate on the basis of age
or gender. Drimmel objected to the evidence on the grounds that it was not disclosed
during discovery.
We find no abuse of discretion in the trial court's admission of the statistical
evidence. In his deposition, Sackett testified that as the mortgage crisis was developing,
SettlementOne took a number of cost cutting measures, including laying off a number of
workers. Although in her discovery request Drimmel asked SettlementOne to set forth all
the information which supported its affirmative defense that her termination was justified
by nondiscriminatory reasons, the record does not show that Drimmel ever asked for any
statistics as to the number, gender and sex of those terminated. Given Drimmel's
opportunity to propound discovery which directly addressed the information provided by
Sackett at his deposition, and her failure to do so, the trial court did not abuse its
discretion in admitting the statistical evidence offered by SettlementOne, which was
subject to thorough cross-examination at trial.
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DISPOSITION
The judgment is affirmed. SettlementOne to recover its costs of appeal.
BENKE, Acting P. J.
WE CONCUR:
NARES, J.
McINTYRE, J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the trial court's findings that the employee's promotion was bona fide and her subsequent termination was based on legitimate, nondiscriminatory performance and economic reasons were supported by substantial evidence. Consequently, the employee failed to establish a prima facie case of age or sex discrimination.
Issues
Whether the trial court's statement of decision was legally adequate under Code of Civil Procedure sections 632 and 634.
Whether the trial court erred in finding the employee's promotion was bona fide and not an adverse employment action.
Whether the trial court erred in finding the employer had nondiscriminatory reasons for the employee's termination.
Whether the trial court abused its discretion in admitting statistical evidence regarding other layoffs.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The trial court found that the employee's promotion to vice-president of the marketing entity was not an adverse employment action and that her later termination from that position was based on the employee's performance”
“A bona fide promotion, such as the one the trial court found, is not only not adverse, but it will not support any logical inference of an unlawful motive on the part of a defendant.”
“It is the employer's honest belief in the stated reasons for firing an employee and not the objective truth or falsity of the underlying facts that is at issue”