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D'Amato v. Voit Commercial Brokerage11/3/2003
Jan A. D'Amato (plaintiff) appeals from a summary judgment in favor of her supervisor, Alan S. Pekarcik, her employer, Voit Commercial Brokerage (VCB), and VCB's parent company, The Voit Corporation (collectively, defendants except where individual identification is required). Plaintiff's complaint alleged wrongful termination (hostile environment/constructive discharge) in violation of public policy and intentional infliction of emotional distress. Plaintiff claimed she was "the victim of a continuous pattern of [gender] discriminatory and harassing action, which created intolerable working conditions" forcing her to quit her job. The court granted defendants' motion for summary judgment after determining there was no triable issue of fact that Pekarcik's rude behavior, outbursts, public reprimands, and demands for personal services were directed solely at women: Rather, the evidence showed Pekarcik dealt that way with male and female employees alike. As the court dryly observed, "As far as I can see, the guy was a jerk."
For the reasons discussed more fully, post, we affirm the judgment. While Pekarcik apparently can be somewhat of a tyrant in the workplace, plaintiff has failed to present evidence she was subjected to a hostile environment because she was a female.
FACTS
Plaintiff's Employment History
Plaintiff graduated from high school in 1972. She did not join the work force for 20 years thereafter. Beginning in 1993 and for the next several years, she held a variety of secretarial positions. Just prior to her employment with defendants, she gained two years of experience in real estate, working as an escrow assistant.
In March 2000, plaintiff responded to a VCB employment ad. She was interviewed for the position of administrative assistant by three people: Pekarcik, a commercial real estate broker, star performer, and senior vice president in VCB's Irvine office; Tyson Theel, a junior broker; and Debra Milby, staff and human resources manager of the Irvine office. Plaintiff was told the job would involve working overtime and doing personal errands for Pekarcik. Plaintiff said she was not opposed to working overtime; she indicated she understood it would be her job to do whatever was required to make Pekarcik's life easier and to allow him to focus on the real estate deals he was handling. Plaintiff was offered and accepted a position as Pekarcik's assistant. The job description sheet she signed noted that, as personal assistant to Pekarcik, she would be expected to " anage, balance and reconcile all personal and professional bank accounts," " ay personal and professional invoices," " andle errands," and " elp manage broker's personally owned properties." Plaintiff worked at VCB from March 2000 until the end of January 2002.
Pekarcik is a major producer of commercial real estate business for the VCB Irvine office. Plaintiff admitted that during her employment, Pekarcik was under a lot of pressure, had a high level of energy, worked long hours, took his work seriously, and was very demanding. Plaintiff was required to work overtime and occasional weekends; she was always compensated for these hours. Because Pekarcik wanted to be able to communicate with plaintiff when she was out of the office, he asked her to get a cell phone, for which he paid the monthly bill. Plaintiff turned off the phone when she went to bed at night and turned it on when she got up in the morning. Every time Pekarcik called plaintiff on the cell phone, it was for business purposes. He occasionally called her in the morning while she was in her car on the way to work. In the course of nearly two years of employment, he called her on the cell phone "sev
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