Metropolitan News-Enterprise


Tuesday, October 5, 2004


Page 3


C.A. Overturns $1 Million Age-Bias Verdict for Demoted Worker


By a MetNews Staff Writer


A former manager for a national real estate firm, who won a verdict for more than $1 million verdict in her suit charging age and gender bias, failed to prove a violation of the Fair Employment and Housing Act and is not entitled to any recovery, the Fourth District Court of Appeal ruled yesterday.

Div. Three, in an opinion by Justice Raymond Ikola, said Helen Carter lacked a prima facie case of discrimination based on disparate impact in the treatment of a protected class of workers.

What Carter’s evidence showed, the justice said, was that her employer’s  national reorganization plan had a disparate impact on a class of workers titled “administrative managers,” and that the class was largely made up of women and older workers. But that isn’t the same thing as showing a disparate impact on a protected class, Ikola explained.

“After 30 years of service, we can understand how plaintiff was disappointed and angered by her employer’s decisions,” the justice wrote. “The jury no doubt was also angered by what they may have perceived as defendant’s unfeeling and perhaps even unwise business decision that adversely impacted plaintiff as an administrative manager. But plaintiff failed to establish any legally cognizable basis for the jury’s verdict. The court’s failure to set it aside in its entirety constituted error.”

Carter worked for CB Richard Ellis, Inc. and its predecessor company beginning in 1969, when she was 21 years old and was hired as a word processing secretary. She rose through the ranks, being made an administrative manager in Orange County in 1984.

Administrative managers, evidence showed, performed multiple duties in the company at that time. They dealt with such diverse matters as hiring and training, budget, benefit administration, landlord-tenant relations, and arranging employee social functions.

The administrative manager position, however, was phased out in a process that began in 1997 when Brett White—later promoted to president of the company—became head of the brokerage services division. White asked a group of senior managers to conduct a strategic study, which culminated in the creation of a new structure in which regional managers and “functional experts” took over the duties of the administrative managers.

Administrative managers were invited to apply for the functional expert positions. Those who were not chosen, however, were retitled “office services administrators,” with no change in base salary but without eligibility for bonuses that were usually a major part of the administrative manager’s total compensation.

Carter, who left the company rather than accept a senior OSA position with an increased salary, noted that all but one of the administrative managers at the time were women, and that about half were over 40.

An Orange Superior Court jury found that the reorganization had a disparate impact on women and older workers, and that the company violated an oral or implied contract with Carter not to demote her without good cause. It awarded over $420,000 in compensatory damages and $600,000 in punitive damages.

Judge Derek Hunt ruled the award was excessive and granted a remittitur to a little over $420,000, including $300,000 in punitive damages, but denied the company’s motion for judgment notwithstanding the verdict.

The motion should have been granted, Ikola wrote for the appellate court, because Carter’s discrimination claims were entirely based “on the erroneous premise that administrative managers were a ‘protected group’ because administrative managers were almost all women and about half were over the age of 40.”

In fact, Ikola noted, there was no evidence that the reorganization plan had any impact at all on women or older workers who were not administrative managers. And he emphasized that the claims involved alleged discriminatory impact, not discriminatory treatment.

The justice went on to say that vague assurances given Carter when she was first hired that she would advance within the company as long as she performed her responsibilities were the type of statements made to encourage new employees, and could not possibly have created an oral or implied guarantee that she would not be demoted without good cause from a position she was promoted to 15 years later.

The case is Carter v. CB Richard Ellis, Inc.. G031724.


Copyright 2004, Metropolitan News Company