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Burk v. California Association of Realtors12/12/2003
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
A lawyer was discharged from his position at a nonprofit organization. He sued his former employer claiming that the termination was discriminatory and violated public policy. The trial court granted summary judgment in favor of the employer, finding compelling evidence of a nondiscriminatory, non-pretextual reason for the termination. We affirm the judgment in favor of the employer.
FACTS
Respondent California Association of Realtors (CAR) is a nonprofit organization that provides services for real estate agents. One of the services CAR offers is a "Legal Hotline" (Hotline) staffed by lawyers. Before offering legal advice to a CAR member, the Hotline checks for a conflict of interest, and refers members to a panel of outside lawyers if the Hotline has already counseled another CAR member regarding the same dispute.
Appellant Walter Burk was one of 12 lawyers who answered telephone calls at the Hotline. He worked for CAR from January 1989 until July 2000. CAR's employee handbook specifies that Burk's position is at-will. Between 1989 and 1996, Burk received mostly positive performance reviews, as well as salary increases and bonuses.
In 1996, CAR members began to complain about Burk. Burk's supervisor, assistant general counsel Gov Hutchinson, counseled Burk to be courteous and to conduct better research when answering Hotline calls. Burk conceded in his deposition that Hutchinson counseled him to be more polite and patient with callers. Burk did not receive any raises or bonuses from 1996 until the end of his employment. Bonuses are awarded to employees who achieve a satisfactory performance level.
By 1998, Hutchinson realized that his attempts to counsel Burk were ineffective, so he began to compile a list of direct quotes from dissatisfied CAR members. The 1998 comments were harsh: members complained that Burk was "a space cadet"; "incompetent"; "an irritation"; "a total jerk"; "dead wrong"; "arrogant"; and "the rudest person [the member] had ever spoken to," among other nuggets. One member indicated that she did not want her membership dues used to pay Burk's salary.
Hutchinson intended to present Burk with the unflattering quotations at Burk's job performance review in late 1998 or early 1999. However, Burk suffered a heart attack in September 1998, before his performance review, and remained on medical leave until February 1999. In March 1999, Burk was back on the job, and the member complaints piled up along the same lines as before, alluding to Burk's "rude" and "condescending" manner.
At Burk's performance review in July 1999, Hutchinson presented Burk with a verbatim recounting of all 16 complaints CAR received between February 1998 and May 1999. Burk agreed during his deposition that Hutchinson's recounting of negative member comments was "honest and truthful." Indeed, Burk did not deny that "Hutchinson legitimately believed that [Burk's] behavior was unacceptable and had to be improved immediately" based on the information available to Hutchinson.
Hutchinson informed Burk, in writing, that Burk was not performing his job of "providing accurate, thorough and courteous legal advice." While commending Burk for his attendance record and intelligence, Hutchinson stated that Burk's attributes did not outweigh the negative impact of his deficienc
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