*This long-time Allstate employee was laid off after many years of faithful service. She found an opening in another office but Allstate refused to take her on. She obviously felt betrayed by her now disloyal employer and went after Allstate for anything and everything she could. Of coarse she lost but this is just a small example of Allstate's sense of 'integrity', 'fair play', 'public responsibility', 'caring', and 'good faith' to its employees and customers.
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Michaelson v. Law Offices of Marsha Munemura
Filed 10/14/08 Michaelson v. Law Offices of Marsha Munemura CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICTDIVISION ONEELLEN M. MICHAELSON,
B197814Plaintiff and Appellant,v.LAW OFFICES OF MARSHA MUNEMURA et al.,
Defendants and Respondents.(Los Angeles County
Super. Ct. No. EC042033)
APPEAL from a judgment of the Superior Court of Los Angeles County. Laura Matz, Judge. Affirmed.Law Offices of Nate G. Kraut and Nate G. Kraut for Plaintiff and Appellant.
Akin Gump Strauss Hauer & Feld, Phillip J. Eskenazi, Michael C. Small and Azra Hot for Defendants and Respondents Law Offices of Marsha Munemura and Allstate Insurance Company.
Plaintiff Ellen Michaelson (Michaelson) sued her employer, defendant Allstate Insurance Company (Allstate), for breach of contract, gender and age discrimination, and discriminatory pay after she was terminated. The trial court granted summary judgment for Allstate. We affirm.FACTS AND PROCEEDINGS BELOWThe following facts were undisputed by Michaelson:
Allstate employs staff attorneys across the country to litigate claims brought against its insureds.
In 1995, Allstate hired Michaelson as a staff attorney in its Glendale office. When Michaelson applied for the position, she signed an employment application that provided Allstate could terminate her with or without cause and with and without notice at any time. Some time after Allstate hired Michaelson, she received a policy guide that stated her employment with Allstate was terminable at the will of either party or with or without notice and with or without cause at any time subject only to such limitations as may be imposed by law.
From 1998 through 2003, Allstate evaluated its staff attorneys by placing them in one of three categories: requires improvement, meets expectations, and exceeds expectations. During these years, Michaelsons superiors placed her in the meets expectations category. In 2004, Allstate changed its evaluation system and placed attorneys in one of five categories: unacceptable, fair, successful, outstanding, and exceptional. In 2004, Michaelsons superiors placed her in the successful category.
In 2002, Allstate encountered a significant and steady decline in the number of claims and lawsuits filed against its insureds in California. In 2004, Allstate decided that it could no longer support some of the attorneys in its California offices and initiated a Voluntary Termination Offer (VTO), hoping it could reduce its attorney ranks without resorting to involuntary layoffs. After an insufficient number of employees accepted the VTO, which expired at the end of 2004, Allstate decided it would lay off a number of attorneys throughout the various California offices. Because Allstate did not want to lay off attorneys during the December holidays, it waited until early 2005 to implement the layoffs.
Once Allstate decided how many attorneys it could afford to keep in each office, Allstate based its layoff decisions on two factors: an attorneys overall performance rating on his or her 2004 evaluation and seniority, which Allstate defined as tenure of employment with Allstate. Of the 13 attorneys employed in the Glendale office, Allstate determined that it could retain nine attorneys and would lay off four attorneys. In 2004, four attorneys received an overall performance rating of outstanding, eight attorneys received a rating of successful, and one attorney received a rating of fair. Allstate laid off the one attorney who rated fair. Of the eight employees who rated successful, Allstate laid off the three attorneys with the shortest length of employment with Allstate, one of whom was Michaelson.
After Allstate terminated Michaelson, she (along with nine other attorneys) applied for a staff position in Allstates Las Vegas office. Allstate did not hire Michaelson for the position.
Michaelson sued Allstate and alleged: (1) breach of contract; (2) gender and age discrimination in violation of the Fair Employment and Housing Act (FEHA) (Gov. Code, 12900 et seq.); and (3) discriminatory pay.
Allstate successfully moved for summary judgment. On the breach of contract claim, the trial court concluded that Allstate satisfied its burden of demonstrating Michaelson was an at-will employee, and even if she was not at-will, Allstates need to reduce its workforce constituted good cause for her termination. On the discrimination claims, the trial court concluded that Allstate satisfied its burden of showing legitimate business reasons for its decisions to terminate Michaelson from the Glendale office and not to re-hire her for the Las Vegas office, and for its differences in pay. The trial court further concluded that Michaelson did not raise triable issues of fact as to whether Allstates proffered reasons for its hiring and pay decisions were pretextual.
Michaelson timely appealed from the final judgment.DISCUSSIONA. Standard of review.
Under Californias traditional rules, we determine with respect to each cause of action whether the defendant seeking summary judgment has conclusively negated a necessary element of the plaintiffs case, or has demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial, such that the defendant is entitled to judgment as a matter of law. (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 334 (Guz).) [O]nce a moving defendant has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, the burden shifts to the plaintiff to show the existence of a triable issue; to meet that burden, the plaintiff may not rely upon the mere allegations or denials of its pleadings . . . but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action . . . . (Code Civ. Proc., 437c, subd. (o)(2); see Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855.) (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476-477.)
We review the trial courts ruling de novo, liberally construe the evidence and all reasonable inferences from the evidence in favor of the opposing party, and resolve all doubts concerning the evidence in favor of the opposing party. (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460.) Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial. Any doubts about the propriety of summary judgment . . . are generally resolved against granting the motion, because that allows the future development of the case and avoids errors. [Citation.] (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839.)B. Overview.
Michaelson makes several arguments in support of reversal, some of which overlap her breach of contract and discrimination claims. We provide a brief overview of her arguments and our conclusions in this section.
1. Breach of implied contract: Michaelson argues that certain statements by Allstates representatives modified her at-will status and created an implied-in-fact contract wherein Allstate could terminate her only for good cause. We conclude that the statements are insufficient to rebut the legal presumption that she was an at-will employee. We further conclude that even if the statements created an implied-in-fact contract, good cause existed for Michaelsons termination because Allstate had a legitimate business need to reduce its workforce, which Michaelson does not dispute.
2. Breach of express contract: Michaelson argues that the parties entered into an express employment contract for a term of 20 years when one of Allstates managing attorneys told Michaelson she could have a job [at Allstate] for the next 20 years. Michaelson did not raise this argument below and we need not address it on appeal.
3. Wrongful termination based on discrimination: Michaelson argues that even though Allstate had a legitimate business need to lay off attorneys, Allstate used this opportunity to engage in gender and age discrimination by getting rid of older female attorneys (such as herself) in favor of younger male attorneys with inferior qualifications and less seniority. We conclude Allstate satisfied its initial burden on summary judgment with evidence that it followed its policy of retaining attorneys with the highest qualifications and most seniority, and that Michaelson has failed to raise a triable issue of material fact as to whether Allstate engaged in gender or age discrimination.
4. Refusal to re-hire based on discrimination: Michaelson argues that Allstate refused to re-hire her for the Las Vegas office for discriminatory reasons. We conclude that Allstate satisfied its initial burden on summary judgment with evidence that it refused to re-hire Michaelson for a legitimate reason, and that Michaelson has failed to raise a triable issue of material fact as to whether Allstate engaged in gender or age discrimination.
5. Discriminatory pay: Michaelson argues that Allstate engaged in discriminatory pay by paying higher salaries to male attorneys. We conclude that Allstate satisfied its initial burden on summary judgment with undisputed evidence that it based its salary decision on performance evaluations and seniority, and that Michaelson has failed to raise a triable issue of material fact as to whether Allstate engaged in discriminatory pay.C. Breach of contract
Labor Code section 2922 provides: An employment, having no specified term, may be terminated at the will of either party on notice to the other. (See also Guz, supra, 24 Cal.4th at p. 335 [[a]n at-will employment may be ended by either party at any time without cause, for any or no reason, and subject to no procedure except the statutory requirement of notice].) While Labor Code section 2922 creates a strong presumption of at-will employment, it does not overcome the parties fundamental . . . freedom of contract to depart from at-will employment. (Guz, supra, at pp. 335-336.) One example of a contractual departure from at-will status is an agreement that the employee will be terminated only for good cause. . . . (Id. at p. 336.)
The understanding that an employer can only terminate an employee for good cause need not be express, but may be implied in fact, arising from the parties conduct evidencing their actual mutual intent to create such enforceable limitations. (Guz, supra, 24 Cal.4th at p. 336.) Courts employ several factors to determine whether parties have agreed that an employee is not at-will, such as the personnel policies or practices of the employer, the employees longevity of service, actions or communications by the employer reflecting assurances of continued employment, and the practices of the industry in which the employee is engaged. (Id. at pp. 336-337.)
Where there is no express agreement, the issue is whether other evidence of the parties conduct has a tendency in reason (Evid. Code, 210) to demonstrate the existence of an actual mutual understanding on particular terms and conditions of employment. (Guz, supra, 24 Cal.4th at p. 337.) If such evidence logically permits conflicting inferences, a question of fact is presented. (Ibid.) But where the undisputed facts negate the existence or the breach of the contract claimed, summary judgment is proper. (Ibid.)
In support of summary judgment, Allstate put forth the following evidence: (1) language from an employment application signed by Michaelson, which provided that Allstate could terminate her with or without cause and with and without notice at any time; (2) language from a policy guide issued to Allstate employees including Michaelson, which provided that employment with Allstate is terminable at the will of either party or with or without notice and with or without cause at any time subject only to such limitations as may be imposed by law. According to Allstate, this evidence, coupled with the legal presumption of at-will employment under Labor Code section 2922, satisfied Allstates burden of showing that Michaelson was an at-will employee and that no implied-in-fact employment contract existed between the parties.
Michaelson does not dispute that she signed the application and received the policy guide. Rather, Michaelson argues that verbal statements made by Allstates representatives create a triable issue as to whether the parties created an implied-in-fact employment contract in which Allstate could terminate her only for good cause: (1) statements made in 1995 by Pat Stidman, the managing attorney of Allstates Glendale office, when she offered Michaelson the job, and (2) statements made in 1999 by William Cole, the managing attorney for all of Allstates Southern California offices.We turn to the evidence proffered by Michaelson regarding these statements.
She cites passages contained at pages 15 and 16 from her deposition regarding what Stidman told her:
Q. Did you have an understanding strike that.
Did you believe that Allstate or you could terminate the employment for any reason?
A. I believed Allstate could only terminate it for cause.
Q. Why did you believe that?
A. Because I was told if I did my job in a manner in which it was accepted, I would be employed for Allstate as long as I would like to be employed by Allstate. [Italics added.]
Q. Even if Allstate had economic conditions that impacted the companys ability to hire a certain number of people?
A. I was told at the time I was hired that that never happened and they didnt anticipate it happening. [Italics added.]
Q. And who made these oral representations to you when you were hired?
A. Pat Stidman.
. . ................
Q. Im sorry. What precisely did Ms. Stidman tell you that led you to believe that you could only be terminated for cause?
A. I dont recall precisely what she told me because it was more than 10 years ago, but she made me an offer. She told me what the salary would be. She said I would be getting a company car, and I know that when I spoke to her in person, I was told that attorneys were not laid off. They didnt expect it I also know that I replaced an attorney. There were two attorneys who were replaced around the time I was hired, but they were terminated for cause. [Italics added.]
The statement attributed to Cole is contained within an answer given by Michaelson at her deposition where she was asked about her relationship with Marsha Munemura, Michaelsons lead counsel at the firm:
Q. Looking back on your employment with Allstate, did you respect Marsha as a team leader?
A. Actually, yes. I would go to her for advice, and she had some very good advice on files. And there were a few times I didnt discuss a lot of personal stuff with her, but there were a few times we did. We talked about our kids. It also says that Bill Cole said I could have a job there for the next 20 years. [Italics added.]
Q. Do you recall that?
A. No, I dont, but I wouldnt have written it down if he didnt say it.
Assuming these statements were made, as we must on appeal from a grant of summary judgment, Stidmans statement to Michaelson that she would continue to be employed by Allstate as long as she did her job in an acceptable manner was qualified by Stidmans statement that Allstate had not previously laid off any attorneys and that no lay offs were expected in the future. The qualification implies that if business conditions changed in the future, Allstate reserved the right to address the situation no matter how well Michaelson performed.
Coles statement to Michaelson was made before Allstate decided that layoffs were necessary in California because of a steady and significant decline in the number of claims and lawsuits filed against its insureds.
We conclude that these statements, taken together and in connection with the employment application, the policy guide, and the presumption of at-will employment, are insufficient to raise a triable issue of fact as to whether an implied-in-fact contract existed wherein Allstate could terminate Michaelson only for good cause. We agree with Allstate that these statements were merely optimistic expressions of contemporaneous hope and expectation that Michaelson would enjoy a lengthy tenure at the company if she so desired.
Even if the statements were sufficient to modify Michaelsons at-will status, they created only a conditional promise not to terminate Michaelson if she continued to perform her job in an acceptable manner and if Allstate continued its history of not laying off attorneys. It is undisputed by Michaelson, however, that layoffs became necessary when the workload began to drop off in 2002. We quote from the pertinent statements of fact by Allstate and Michaelsons responses (in italics):
6. Beginning in 2002, Allstate began experiencing a decline in the number of litigated claims handled by its staff counsel offices in California. Undisputed.
7. In 2004, Allstate saw a decline of 39% in new cases filed against its insureds in California. Undisputed.
8. Allstate determined in late 2004 that it needed to layoff attorneys in each of its California offices. Undisputed.
9. Allstate determined the number of attorneys it needed in each of the California staff counsel offices, based on the workload in each office. Undisputed.
. . . .
16. Thirteen attorneys, including Plaintiff, worked in Allstates Glendale staff counsel office prior to the reduction in force. Undisputed.
17. Allstate determined that the case load in its Glendale staff counsel office could only justify keeping nine attorneys after the 2005 reduction in force. Undisputed.
Thus, even if we had concluded the statements were sufficient to raise a triable issue of fact as to whether Michaelson could be terminated only for good cause, Allstate established an undisputed legitimate business reason for the termination that satisfied the good cause requirement.
D. Wrongful termination based on discriminatory motives.
Allstate presented evidence that it terminated Michaelson based on her overall performance ranking and seniority with Allstate. Allstate also put forth evidence that of the four people Allstate terminated in the Glendale office (including Michaelson), two were women and two were men, and two were younger than Michaelson. Allstate also put forth evidence that of the nine attorneys Allstate retained, it retained four women overall, three of which were older than Michaelson.
This evidence satisfied Allstates initial burden of demonstrating that Allstate did not terminate Michaelson based on gender or age discrimination.
Although Michaelson does not dispute that Allstate had a legitimate need to reduce its workforce in California, and that she had a lower performance ranking or less seniority than the attorneys retained in her office, she contends summary judgment was improper on both her breach of contract claim and her discrimination claim under FEHA because a triable issue of fact exists as to whether Allstate implemented its workforce reduction in a fair and honest manner and in good faith. According to Michaelson, Allstate fabricated a policy of retention based on performance and seniority as a pretext for laying off attorneys based on age and gender discrimination.
In support of her contention, Michaelson points to: (1) Allstates decision to use evaluations from 2004, not 2003; (2) Allstates retention of two male attorneys who purportedly had inferior qualifications and less seniority; and (3) her reduced workload in the second half of 2004.
Use of 2004 evaluations: Michaelson argues that Allstates use of the 2004 evaluations instead of the 2003 evaluations (which were already final and not subject to manipulation) demonstrates Allstate rigged the layoff decisions. There is nothing in the record to support this claim. The undisputed evidence is that Allstate made its decision to initiate layoffs in 2004 and sought to implement them through a Voluntary Termination Offer. It was only toward the end of 2004 that Allstate was forced to initiate involuntary layoffs when insufficient personnel accepted the VTO. Because Allstate did not want to lay off attorneys during the December holidays, it waited until early 2005 to implement them. By that time the 2004 evaluations were complete and Allstate decided to use them because they were the most recent. While it is true that the 2004 evaluations had two additional performance categories and required home office approval, neither raises the inference that the evaluations were rigged in any way. Furthermore, both men and women, and individuals older and younger than Michaelson were laid off and retained, thus negating the inference that Allstate used the 2004 evaluations to target women or the elderly.
Retention of male attorneys: Michaelson contends that Allstate should not have retained attorney Robert Pfenning over her because they had equal overall rankings and Pfenning had less seniority.
It is true that Pfenning had less years of legal experience than Michaelson, but it is undisputed that at the time Allstate made its decision, Pfenning had worked for Allstate for a total of 18 years while Michaelson had worked at Allstate for only 10 years. Pfennings retention was consistent with Allstates guideline that as between two attorneys with equal overall rankings, it would retain the attorney with a longer length of employment with Allstate. (Guz, supra, 24 Cal.4th at p. 355 [once an employer meets its burden by showing that it had legitimate, non-discriminatory reasons for discharging the employee, the burden shifts back to the employee to demonstrate that the reasons for her discharge are a pretext by presenting evidence of implausibility, inconsistency, or contradiction in an employers proffered reason for termination, or with direct evidence of a discriminatory motive].)
Michaelson further claims that Steven Levine, a younger male attorney, was given a higher overall ranking, even though the individual rankings given to [Levine] warranted an overall ranking equal to or lower than the one Michaelson received.
As a threshold matter, it is not the jurys role, and it is certainly not our role, to question the accuracy of the evaluations provided by Michaelson and Levines superiors. (Pugh v. Sees Candies, Inc. (1988) 203 Cal.App.3d 743, 769 [[i]n any free enterprise system, an employer must have wide latitude in making independent, good-faith judgments about high-ranking employees without the threat of a jury second-guessing its business judgment . . . . Although the jury must assess the legitimacy of the employers decision to discharge, it should not be thrust into a managerial role].)
Further, the record simply does not support Michaelsons claim. The undisputed evidence shows that out of 16 equally weighted individual categories in the 2004 evaluations, Levine outperformed Michaelson in five categories, whereas Michaelson outperformed Levine in only one category. Thus, contrary to Michaelsons claim, Levine deserved a higher overall rating, and not an equal or lower overall rating.
Michaelson also refers to testimony provided by Cole, the managing attorney of Allstates Southern California offices, wherein Cole stated that he would personally try to keep Levine from getting laid off:
Q. All right. Tell me what you told the staff.
A. I told them that we were going to have my best recollection, we were going to have a reduction in force and that I feel that were going to my idea, of course, is that well see if we can save as many jobs as we can.
But obviously, that was my me personally speaking, to try to save as many jobs. And, in fact, I think I said, you know, Steve Levine is handling some legal things and I may try to get him out of the mix.
And I did say that and I said save a job in the SCO. I wasnt trying to protect Steve Levine as much, as trying to save a job.
That was my personal comments. Obviously, everybody was upset and so forth and as a leader, I thought I would tell them that Ill do my best, but my best is my best.
And everybody seemed to understand that and basically that is what I remember about the meeting.
While this does indicate Cole may have tried to save Levine from losing his job, given the undisputed facts, it does not raise a triable issue of fact as to whether Coles intention was improper or discriminatory. The evidence, which Michaelson did not dispute, demonstrates that Levine was within the group of four attorneys retained by Allstate who fell within the Outstanding rating while she was released from the group rated Successful because of a lack of seniority. We again quote from the pertinent statement of facts by Allstate and Michaelsons responses (in italics).
16. Thirteen attorneys, including Plaintiff, worked in Allstates Glendale staff counsel office prior to the reduction in force. Undisputed.
17. Allstate determined that the case load in its Glendale staff counsel office could only justify keeping nine attorneys after the 2005 reduction in force. Undisputed.
18. The 2004 attorney performance evaluations that Allstate used for the reduction in force in 2005, had five rating categories: Unacceptable, Fair, Successful, Outstanding and Exceptional. Undisputed.
19. Of the attorneys in Allstates Glendale staff counsel office, on their final 2004 performance evaluations, no one had the highest overall rating Exceptional, four attorneys received an overall rating of Outstanding, the second highest rating; eight attorneys received the middle overall rating, Successful; one attorney received an overall rating of :Fair [sic] which is one below the middle rating; and no one received the lowest overall rating. Undisputed.
20. The four attorneys in Allstates Glendale staff counsel office with the 2004 overall performance rating of Outstanding were all retained after the 2005 reduction in force. Undisputed.
21. Of the eight attorneys in Allstates Glendale staff counsel office who had an overall rating of Successful on their 2004 performance evaluations, the five with the most seniority with Allstate were retained. Undisputed.
22. Plaintiff had less seniority with Allstate than five other attorneys who also received an overall performance rating of Successful for 2004. Undisputed.Case Load:
Referencing statistics which were apparently produced in 2006 but account for the case load assigned to various counsel in 2004, Michaelson argues that Allstate began to reduce her case load the last six months of 2004, which demonstrates that it had decided to terminate her before the final list was drawn up. Also in the record are statistics from the year 2003. In 2003, Michaelson received 71 cases. In 2004, she received a total of 25 cases, 18 the first six months and 7 the last six months. Her distribution was as follows: January-3 cases, February-5 cases, March-4 cases, April-2 cases, May-1 case, June-3 cases, July-1 case, August-2 cases, September-2 cases, October-2 cases and no cases for November and December. Similar statistics exist for the other personnel laid off.
It is difficult to place this evidence within the context of discrimination or unfairness given the undisputed fact that by 2004 Allstate was required to reduce its workforce due to a declining case load. Total cases distributed in 2003 to all counsel were 2,007 while total cases distributed in 2004 were 1,272, which supports the decision to lay off personnel. All staff counsel, whether retained or laid off, received lighter case loads in 2004 than in 2003. Moreover, two men, both older and younger than Michaelson, also received reduced case loads in the latter half of 2004 and were laid off in 2005. Although the reduced workloads raise the inference that Allstate may have unevenly reduced the workloads of some attorneys, they do not raise the inference that Allstate targeted certain attorneys based on gender and/or age and reduced their workloads accordingly.
Considered as a whole, the foregoing evidence relating to use of the 2004 evaluations, the retention of Pfenning and Levine, and the case load statistics is insufficient to raise a triable issue of fact as to whether Allstate implemented its workforce reduction in a bad faith and discriminatory manner.E. Gender and age discrimination.
Michaelson claims that Allstates decision not to re-hire her in its Las Vegas office was based on gender and age discrimination.
To establish a prima facie case of discrimination in violation of FEHA, the employee must show that (1) she was a member of a protected class; (2) she was qualified for the position she held and was performing competently; (3) she suffered an adverse employment action, such as a termination or demotion; and (4) her protected status was a motivating factor for the adverse action. (Guz, supra, 24 Cal.4th at p. 355.) An employer seeking summary judgment in a discrimination case meets its burden by showing that plaintiff lacks one or more of these prima facie elements, or that it had legitimate, non-discriminatory reasons for discharging the plaintiff.
Following such showing by the employer, the burden shifts back to the employee to demonstrate that the reasons for her discharge are a pretext and that the employer acted with a discriminatory motive. (Guz, supra, 24 Cal.4th at pp. 355-356.) Pretext may be inferred from the timing of the discharge decision, the identity of the decision maker, or by the discharged employees job performance before termination. (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 224.) An employee may raise a triable issue of fact regarding pretext by presenting evidence of implausibility, inconsistency, or contradiction in an employers proffered reason for termination, or with direct evidence of a discriminatory motive. (Guz, supra, 24 Cal.4th at pp. 362-364.) To raise a triable issue of fact, however, the employees evidence must do more than present a weak suspicion that discrimination was a likely basis for the termination. (Id. at p. 369.) [T]he great weight of federal and California authority holds that an employer is entitled to summary judgment if, considering the employers innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that the employers action motive was discriminatory. (Guz, supra, 24 Cal.4th at p. 361.)
After Allstate terminated Michaelson from the Glendale office, she, along with nine other attorneys, applied for a staff counsel position with the Las Vegas office. Allstate put forth evidence that it based its primary hiring criterion for the Las Vegas position on an attorneys ability to work with the claims office. Specifically, Steve Crittendon, the managing attorney who interviewed Michaelson for the position, averred that because there were relationship issues between the Las Vegas claims office and staff counsel in the past, it was important for Allstate to hire an attorney who could get along well with the claims office. According to Crittendon, Michaelson did not give [him] the impression that she excelled in this regard. He hired another female attorney to fulfill the position instead. This evidence satisfied Allstates burden of demonstrating that it based its hiring decision on a legitimate, non-discriminatory reason.
Michaelson, however, contends that Crittendon discriminated against her and refers to her declaration in which she avers: Throughout my conversation with Mr. Crittendon his tone and verbal attitude gave me the impression he was not seriously interested in hiring anyone affected by the reduction in force and was only talking to me because he had been told to do so. Assuming Michaelsons impression of Crittendons tone and attitude was accurate, this evidence only shows that Allstate did not want to hire anyone it had just laid off, and not that it did not want to hire women or the elderly. Fair or not, Allstates actions were not discriminatory. F. Discriminatory pay.
Labor Code section 1197.5 provides: No employer shall pay any individual in the employers employ at wage rates less than the rates paid to employees of the opposite sex in the same establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where the payment is made pursuant to a seniority system, a merit system, a system which measures earnings by quantity or quality of production, or a differential based on any bona fide factor other than sex. [S]uperior experience, education, and ability may justify pay disparities if distinctions based on these criteria are not gender based. [Citation.] (Green v. Par Pools Inc. (2003) 111 Cal.App.4th 620, 630.)
Allstate put forth evidence that when attorneys are initially hired, their salaries are set according to a variety of factors, such as cost of living, the specific position offered, and an attorneys past experience, including experience in the insurance industry, education, and length of legal practice. Allstate adjusts attorneys salaries throughout their tenure with Allstate based on the attorneys performance ratings each year. According to a declaration by Allstates Human Resources Staff Manager, an attorney with a higher performance rating will get a larger raise than an attorney with a lower rating. This evidence satisfied Allstates initial burden of showing it does not set salaries according to discriminatory factors.
Michaelson argues she has raised a triable issue on discriminatory pay based on evidence that three male attorneys (Steven Levine, Robert Edgerton, and Kent Burton), with purportedly less experience and less qualifications, received a higher salary.
Steven Levine and Robert Edgerton: Michaelson urges us to infer discrimination based on evidence that two male attorneys, Steven Levine and Robert Edgerton, received higher salaries than her even though they occupied the same position within the Glendale office. Both Levine and Edgerton, however, received higher performance evaluations than Michaelson. Thus, Allstate was entitled to pay them a higher salary based on its policy that it could adjust salaries upward based on performance. Moreover, other than Michaelsons own suspicions, she can point to no evidence to show that Levine and Edgerton were less qualified than her.Kent Burton:
Michaelson also urges us to infer discrimination based on evidence that Kent Burton, a male attorney in another office, received a $10,000 higher salary than Michaelson. Burton, however, earned his state bar license in 1978, and Michaelson earned her license in 1983. Thus, Burton had five more years of legal experience than Michaelson, and Allstate was entitled to pay Burton a higher salary based on its policy of paying attorneys with more legal experience higher salaries. Finally, Michaelson points to a conflict between Allstates stated policy of permitting attorneys to negotiate their salaries at the time they are hired and the fact that neither she nor Kent Burton had the right to negotiate their salaries upon hiring. But this conflict is immaterial. At most it shows that Allstate denied both men and women the opportunity to negotiate their salaries when initially hired. It does not raise the inference that Allstate engaged in discriminatory pay. (Columbus Line, Inc. v. Gray Line Sight-Seeing Companies Associated, Inc. (1981) 120 Cal.App.3d 622, 633 [the existence of factual conflict will not defeat a motion for summary judgment unless the fact in dispute is a material one].)
In sum, because Michaelson has failed to raise a triable issue of material fact on her claims for gender and age discrimination, and discriminatory pay, Allstate is entitled to summary adjudication on these claims.DISPOSITION
The judgment is affirmed. Costs are awarded to respondents.
NOT TO BE PUBLISHED.
MALLANO, P. J.
Name Gender Age Years of Service
Wayne W. Male 61- 33
Isolde G. Female 63- 16
Robert E. Male 47- 9
Steven Levine Male 49- 7
Robert Pfenning Male 45- 18
Shaghig D. Female 45 - 15
Kathryn D. Female 60- 12
John P. Male 53- 12
Cheryl L. Female 60 - 11
Ellen Michaelson * Female 54- 9
David K. * Male 59- 9
Nair A. * Female 44- 4
Steven B. * Male 51- 4
* Individuals in the Glendale office terminated as a result of Allstates reduction in workforce.
 In addition to Allstate, Michaelson sued three of her supervisors in their individual capacities. The trial court granted summary judgment in their favor on the grounds that Michaelson failed to establish they were parties to the alleged employment contract and they were personally responsible for the alleged discriminatory conduct. Michaelson does not challenge this ruling on appeal.
 The record does not indicate when Cole purportedly made this statement. The parties agree that if this statement was made, it happened in October 1999.
 In this deposition, Michaelson is apparently referring to a document that is not in the record.
 For the first time on appeal Michaelson argues that Coles statement constituted an express employment contract for a specified term of 20 years, an argument which was not addressed in the trial court and which we need not address on appeal. (North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 29.) Moreover, the statement is much too vague to support a jury finding consistent with the claim. (Halvorsen v. Aramark Uniform Services, Inc. (1998) 65 Cal.App.4th 1383, 1389 [oral contract with vague and uncertain terms is not binding].)
 As an appendix to this decision, we have included a chart reflecting the gender and age of the attorneys retained and terminated in the Glendale office.
 In connection with her breach of contract argument, Michaelson cites Malmstrom v. Kaiser Aluminum & Chemical Corp. (1986) 187 Cal.App.3d 299. Although that case did involve a reduction in force, the plaintiff had alleged a separate cause of action based on the implied covenant of good faith and fair dealing arising from an implied contract not to terminate unless for cause. (Id. at pp. 306-307.) Michaelson has no such claim alleged here. But she has alleged that Allstate did set up certain criteria to use in connection with the workforce reduction and it did not follow these criteria for discriminatory reasons. We agree that if she can raise a triable issue of fact on this point, then summary judgment was improper.
*Retired Associate Justice of the Court of Appeal, Second Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.