Casenas v. Fujisawa USA, Inc. (58 Cal. App. 4th 101, 1997)

Opinion

SONENSHINE, J.

Bernardine W. Casenas appeals from a summary judgwa). She contends there were triable issues of fact whether, after she complained about sexual harassment, her employer unlawfully retaliated against her, making her working conditions so intolerable as to constitute wrongful constructive discharge.

We affirm, finding the trial court properly put an end to the case. We publish our opinion because Fujisawa’s conduct is a textbook example of how to respond appropriately to an employee’s harassment complaint. We do not know what more the employer could have done to accommodate Casenas, short of ceding its managerial prerogative to her. As we will explain, Casenas was not entitled to present her case to a fact finder: As a matter of law, no reasonable employee in her position would have found the working conditions so egregious as to compel resignation.

I

The following facts are based largely on the court’s statement of materially uncontradicted evidence leading it to grant Fujisawa a summary judgment.

Fujisawa is engaged in the pharmaceutical products industry. Casenas began her employment as a professional sales representative (PSR) on February 3, 1986, in Philadelphia. At her request, she was transferred to Southern California at the end of 1987. Her district manager was Jeff Brown until early 1989, when he was transferred to another district and replaced by Casey Bemson. Brown and Bemson reported to Dennis Ison, regional sales director.

Under Fujisawa’s evaluation system, PSR’s are initially appraised by their district manager. A draft appraisal goes to the regional sales director who reviews it in comparison to the sales performances of all PSR’s in the region. The appraisal is then sent to the national sales manager for review, revision and approval, to ensure application of uniform standards nationwide. The personnel department does the final review. PSR’s are given an overall rating of “outstanding,” “highly commendable,” “commendable” or “improvement needed” based on specific performance criteria in numerous areas. Merit salary increases tied to the performance evaluation range from 0 to 10 percent.

Casenas did very well at Fujisawa, earning many bonuses and much praise. In the February 1988 appraisal of her previous year’s performance in Philadelphia, she received a “highly commendable” rating and an 8 percent merit increase. In the March 1989 appraisal of work she performed during 1988, Casenas was again rated “highly commendable” and given a 7 percent increase. The latter appraisal was determined prior to March 7, 1989, by Brown, Ison and Rick Lamb, then Fujisawa’s national sales manager, and reviewed by Barbara Sheiman, the company’s personnel manager at the time. The sales statistics revealed Casenas achieved 105 percent of her sales goal for 1988, ranking her at about the 55th to 60th percentile among PSR’s—her territory was number 60 out of 131. Her district finished 13th out of 14 districts nationally. Casenas received a promotion to senior sales representative.

Casenas was, however, unhappy with her 1989 appraisal. On March 18, she sent a memo to Sheiman, listing some specific accomplishments which had not been mentioned, objecting to the employer’s choice of words in minor criticisms, noting the overall excellence of her services, and complaining about her salary increase which, at 1 percent less than the prior raise, she believed falsely implied her 1988 performance was inferior to that of 1987. On a positive note, she expressed her appreciation for Bemson; she believed him far more capable than Brown of managing the district. She “look[ed] forward to working under [Bemson’s] strong leadership and guidance."

Ison responded to the memo. After reviewing the appraisal, he wrote to Casenas on April 7, agreeing some of the suggested changes should be made. He told Casenas he was instructing Brown to “upgrade” the rating in one performance area and prepare an appraisal addendum stating the approved modifications. However, Ison noted, “I have recalculated the performance rating and this change does not alter the overall rating of highly commendable or the merit increase of 7 percent. This already acknowledges a fine performance by you this past year.” Ison further stated he had found “several inaccuracies” in Casenas’s memo and asked her to schedule a meeting with him to discuss the issues face-to-face.

Casenas replied with an April 21 letter, demanding Ison “specify ... in writing” what he meant by inaccuracies in her previous memo. Four days later, she sent Sheiman another memo (with a copy to Ison), again objecting to the appraisal, criticizing Brown on a broad range of management issues and, for the first time, accusing him of sexual harassment. She concluded, “Jeff Brown’s continued critical and condescending comments during work contacts, his derogatory remarks, his total lack of support and encouragement along with his attempt to discredit my character and reputation are reprehensible, demotivating, and demoralizing. [‘JQ I feel that my rejection of his sexual advances and my obvious disgust to his sexual harassment was the reason for the unfair performance review evaluation he gave me and his unfair treatment and criticisms of my performance. [