O'Quinn v. Chi Management CA5 ( 2023 )

Filed 3/28/23 O’Quinn v. Chi Management CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
BRIANNA O'QUINN,
F083461
Plaintiff and Appellant,
(Super. Ct. No. CV-19-000699)
v.
CHI MANAGEMENT, INC. et al., OPINION
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Stanislaus County. Sonny S.
Sandhu, Judge.
Aegis Law Firm, Kashif Haque and Ali S. Carlsen for Plaintiff and Appellant.
Klinedinst PC, Lindsey N. Casillas, Robert M. Shaughnessy and Raja A. Hafed for
Defendants and Respondents.
-ooOoo-
Plaintiff sued defendants, alleging they were her employers, they violated various
provisions of the California Fair Employment and Housing Act (FEHA; Gov. Code,
§ 12900 et seq.),1 and they wrongfully terminated her employment in violation of public
policy. She alleged she was demoted for complaining of sexual harassment, and her
employment was terminated after she disclosed she was pregnant and needed time off
due to a threatened miscarriage. Defendant, CHI Management, Inc. (CHIMI), moved for
summary judgment or summary adjudication of each cause of action alleged. Defendant,
Community Hospice, Inc. (Hospice), separately moved for summary judgment on the
ground it was not plaintiff’s employer; alternatively, it joined in CHIMI’s motion.
The trial court granted CHIMI’s motion for summary judgment; it granted
summary judgment in favor of Hospice on the basis of its joinder in that motion. It
declined to rule on Hospice’s separate motion.
We conclude summary judgment on CHIMI’s motion must be reversed , because
triable issues of material fact remain as to four of plaintiff’s causes of action. Further,
Hospice’s separate motion did not establish it is entitled to judgment as a matter of law.
We therefore reverse the summary judgment and the order granting defendants’ joint
motion, with instructions to enter a new order granting summary adjudication only of
plaintiff’s third, fourth, and fifth causes of action.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff filed a complaint against CHIMI and Hospice alleging causes of action
arising out of her employment with defendants and the termination of that employment.
She alleged causes of action for (1) discrimination based on sex and pregnancy; (2)
discrimination based on disability; (3) failure to reasonably accommodate her disability;
(4) failure to engage in the interactive process in order to accommodate her disability; (5)
retaliation; (6) failure to prevent discrimination and retaliation; and (7) wrongful
termination in violation of public policy. CHIMI filed a motion for summary judgment,
1 All further statutory references are to the Government Code, unless otherwise
indicated.
2.
challenging plaintiff’s ability to establish each cause of action. Hospice filed its own
motion for summary judgment, asserting it could not be held liable on the causes of
action alleged because it was not plaintiff’s employer. Additionally, Hospice joined in
CHIMI’s motion.
The moving papers presented the following facts. Hospice is a nonprofit
organization that provides medical, nursing, emotional, spiritual, and educational support
to persons coping with grief or a life-threatening illness. CHIMI is a nonprofit
organization that operates a chain of local thrift stores that support Hospice. In late 2013,
plaintiff began working at one of the thrift stores as a retail clerk. In July 2014, plaintiff
was hired as assistant manager of the Oakdale thrift store. She performed well and her
supervisor, Donnette Reel, encouraged her to apply for a store manager position when
one became available. In September 2016, plaintiff was promoted to manager of the
Manteca store. Her supervisor was John Renner.
While plaintiff was the store manager, the Manteca store was not profitable. It
was cluttered, unorganized, and dirty; plaintiff seemed unable to build comradery and
lead her team. After being counseled about these problems, plaintiff was given a written
performance correction notice in July 2017, which advised her of these problems and
included a performance improvement plan. Concerns about plaintiff’s performance
continued, and she was given a final written performance correction notice on October
12, 2017. The problems remained and, on December 14, 2017, plaintiff was demoted to
senior retail clerk at the Oakdale store. Subsequently, Reel, the Oakdale store manager,
took on the day-to-day management of the Manteca store, while the Oakdale assistant
manager, Jennifer Rauch, engaged in the day-to-day management of the Oakdale store
where plaintiff was working.
Plaintiff was scheduled to begin working at the Oakdale store as a senior retail
clerk on Monday, December 18, 2017. Each day that week, plaintiff punched in late, left
3.
early, took an extended lunch, or did not work at all. She then had two weeks off for a
scheduled vacation. She was to return to work on Sunday, January 7, 2018.
On January 6, 2018, plaintiff texted Reel, informing Reel that she (plaintiff) was
pregnant. On January 8, 2018, plaintiff told Rauch, that she was pregnant; plaintiff asked
that she not be required to lift heavy items. Rauch complied with this request.
On January 7 and 8, 2018, plaintiff arrived late for her shift; she was not scheduled
to work January 9 and 10. On January 11 and 12, she was scheduled to work, but did not.
On January 13, 2018, Reel gave plaintiff a written performance correction notice
describing her absences and tardiness; it established a goal that plaintiff “have no further
instances of absenteeism, tardiness and she is to work her entire scheduled shift over the
next 6 months.” The notice also stated: “Any further tardiness beyond 15 minutes, or
failure to work her entire scheduled shift over the next 6 months will result in termination
of employment, unless the time off is protected under law.” On January 13, 2018, when
Reel met with plaintiff and gave her the performance correction notice, Reel asked what
was going on or if there was anything she could do to help; plaintiff responded that there
was nothing Reel could do to help her.
Plaintiff did not work her scheduled shifts on January 14, 15, 16, 19, or 20, 2018.
At that time, defendants’ “ATTENDANCE AND ABSENTEEISM” policy provided that
employees were expected to be punctual and regular in attendance; if sick or unable to
report, they were required to make direct contact with their supervisor, and this
notification “should occur at least two hours before the beginning of the workday or
earlier, if possible.”
On January 14, 2018, plaintiff called in 40 minutes after her shift started to say she
would not be at work. On January 15, 2018, plaintiff texted Rauch an hour and a half
before her scheduled shift, stating she was at Kaiser with her son and included a photo of
an apparently injured toe. Rauch texted back, asking if plaintiff was still going to come
4.
in for her shift, but received no reply. On January 16, 2018, prior to her shift, plaintiff
texted Rauch, “I won’t be in today … I’ll be at the Dr. I’ll have a note.”
On January 19 and 20, 2018, plaintiff did not work and did not contact anyone at
CHIMI to inform them that she would not work her scheduled shifts. On January 20,
after plaintiff’s shift was over, she texted Rauch, stating: “Sorry I have been so sick it’s
just horrible. Not sure if it’s the flu or just pregnancy. But I can barely get out of bed. I
have an appt. To see my Dr. On Wednesday. And will let you know what he says.”
Plaintiff did not work on Sunday, January 21, 2018. In the evening of that day, plaintiff
sent an e-mail to Rauch, stating that, shortly after sending her January 20 text, she rushed
herself to the emergency room “for heavy bleeding and clots”; she stated the doctor
called it a threatened miscarriage and “ordered me to stay home and take things very easy
until I go to my o.b. appt on Wednesday the 24th where hopefully I will find out more. I
will keep you posted.”
On January 22, 2018, Renner, Jennifer Dunn, CHIMI’s director of human
resources, and DeSha McLeod, president and chief executive officer of both CHIMI and
Hospice, decided to terminate plaintiff’s employment; in an e-mail that indicates it was
sent at 9:47 that morning, Dunn advised plaintiff she had abandoned her job due to failing
to work her shifts and failing to contact anyone to say she would be out. The policy
manual provided that “[a]bsenteeism for more than two consecutive days without
notification (no call/no show) will be considered a voluntary resignation.” Rauch did not
have access to her work e-mails except while at work, and did not see plaintiff’s January
21 e-mail until around noon on Monday, January 22, 2018. She forwarded it to Renner
and Dunn at 12:10 p.m. that day.
The trial court allowed Hospice to join in CHIMI’s motion for summary judgment,
then granted the motion of both defendants in its entirety. It did not address the merits of
Hospice’s separate motion. The trial court entered judgment in defendants’ favor and
plaintiff appeals.
5.
DISCUSSION
I. STANDARD OF REVIEW
Summary judgment is properly granted when no triable issue exists as to any
material fact and the moving party is entitled to judgment as a matter of law. (Code Civ.
Proc., § 437c, subd. (c).) “Since summary judgment involves pure matters of law, we
review a grant of summary judgment de novo. [Citations.] In undertaking our
independent review of the evidence submitted, we apply the same three-step analysis as
the trial court. First, we identify the issues framed by the pleadings. Next, we determine
whether the moving party has established facts justifying judgment in its favor. Finally,
if the moving party has carried its initial burden, we decide whether the opposing party
has demonstrated the existence of a triable, material fact issue.” (Chavez v. Carpenter
(2001) 91 Cal.App.4th 1433, 1438.)
We consider all the evidence presented, except that which the trial court properly
excluded.2 (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476-477.) We view the
evidence in the light most favorable to plaintiff as the losing party. (Sandell v. Taylor-
Listug, Inc. (2010) 188 Cal.App.4th 297, 308 (Sandell).) We strictly scrutinize the
defendant’s evidence, liberally construe the plaintiff’s evidence, and resolve any
evidentiary doubts or ambiguities in the plaintiff’s favor. (Ibid.)
II. DISCRIMINATION BASED ON SEX, PREGNANCY, OR DISABILITY
Plaintiff’s complaint alleges her employment was terminated shortly after she
notified her employer of her pregnancy and took time off due to a threatened miscarriage.
She alleges that “her sex, pregnancy, and/or pregnancy-related disability was a
motivating factor in Defendant’s decision to terminate [her] employment.” Further, she
2 Plaintiff objected to some of defendants’ evidence; defendants objected to some of
plaintiff’s evidence. The trial court overruled all evidentiary objections. Neither party
has challenged that ruling. Consequently, we consider all the evidence presented in
connection with the motion.
6.
would have been entitled to protected leave and reinstatement after her leave, if her
employment had not been terminated.
Under FEHA, it is an unlawful employment practice for an employer to discharge
or discriminate against a person in compensation, terms, conditions, or privileges of
employment because of specified characteristics, including sex or physical disability.
(§ 12940, subd. (a).) In this context, “sex” is defined to include “[p]regnancy or medical
conditions related to pregnancy.” (§ 12926, subd. (r)(1)(A).) Plaintiff’s first cause of
action alleges discrimination based on sex and pregnancy. Her second cause of action
alleges discrimination based on physical disability.
“In employment discrimination cases under FEHA, plaintiffs can prove their cases
in either of two ways: by direct or by circumstantial evidence. [Citation.] When a
plaintiff proffers circumstantial evidence, California courts apply the three-stage burden-
shifting test established by the United States Supreme Court for trying claims of
employment discrimination … based on a theory of disparate treatment.” (DeJung v.
Superior Court (2008) 169 Cal.App.4th 533, 549 (DeJung).) The burden-shifting test
does not apply, however, when the plaintiff presents direct evidence of discrimination.
(Id. at p. 550.) “It is rare for a plaintiff to be able to produce direct evidence or ‘smoking
gun’ evidence of discrimination,” because there is “‘seldom … “eyewitness” testimony as
to the employer’s mental processes.’” (Heard v. Lockheed Missiles & Space Co. (1996)
44 Cal.App.4th 1735, 1748.)
“Direct evidence is evidence which, if believed, proves the fact of discriminatory
animus without inference or presumption. Comments demonstrating discriminatory
animus may be found to be direct evidence if there is evidence of a causal relationship
between the comments and the adverse job action at issue.” (DeJung, supra, 169
Cal.App.4th at p. 550.) “Direct evidence of discriminatory intent in pregnancy
discrimination cases generally is in the form of an admission by a supervisor or decision
maker that the employee was suspended because she was pregnant.” (Trop v. Sony
7.
Pictures Entertainment, Inc. (2005) 129 Cal.App.4th 1133, 1147.) Direct evidence of
disability discrimination may include evidence that the employer took the adverse
employment action based on a good faith, but erroneous, belief that the employee was
unable to perform the essential functions of the job due to disability. (Zamora v. Security
Industry Specialists, Inc. (2021) 71 Cal.App.5th 1, 36-37 (Zamora).)
In the absence of direct evidence, however,
“California resolves employment discrimination claims by applying a
burden-shifting procedure. Under this test, the plaintiff bears the initial
burden of proving a prima facie case of discrimination by presenting
evidence showing: (1) he was a member of a protected class, (2) he was
qualified for the position sought or was performing competently in the
position held, (3) he suffered an adverse employment action, and (4) some
other circumstance suggests a discriminatory motive. [Citation.]
“Once the employee sets forth a prima facie case, the burden shifts to the
employer to present evidence of a legitimate, nondiscriminatory reason for
the adverse employment action. [Citation.] If the employer does so, the
burden then shifts back to the employee to ‘offer substantial evidence that
the employer’s stated nondiscriminatory reason for the adverse action was
untrue or pretextual, or evidence the employer acted with a discriminatory
animus, or a combination of the two, such that a reasonable trier of fact
could conclude the employer engaged in intentional discrimination.’ ”
(Foroudi v. The Aerospace Corp. (2020) 57 Cal.App.5th 992, 1007.)
“For a defendant to meet its initial burden when moving for summary judgment, it
must demonstrate ‘“that a cause of action has no merit”’ by showing either ‘“that one or
more elements of the cause of action … cannot be established, or that there is a complete
defense to that cause of action.”’ [Citations.] In the context of an employer’s motion for
summary adjudication of a discrimination claim, this means the employer ‘“has the initial
burden to present admissible evidence showing either that one or more elements of [the]
plaintiff’s prima facie case is lacking or that the adverse employment action was based
upon legitimate, nondiscriminatory factors.”’” (Abed v. Western Dental Services, Inc.
(2018) 23 Cal.App.5th 726, 737-738 (Abed).)
8.
If the employer bringing a motion for summary judgment chooses the latter
approach, it proceeds directly to the second step of the burden shifting test, and presents
evidence of its legitimate, nondiscriminatory reason for taking the challenged
employment action. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 357 (Guz).) If
the employer makes a legally sufficient showing through competent and admissible
evidence, then the burden shifts to the plaintiff to present substantial evidence that the
employer’s stated reason was untrue or pretextual, or to present other evidence of a
discriminatory animus, or a combination of the two, from which a reasonable trier of fact
could conclude the employer engaged in intentional discrimination. (Hersant v.
Department of Social Services (1997) 57 Cal.App.4th 997,1004 (Hersant).)
The employee cannot “simply show that the employer’s decision was wrong,
mistaken, or unwise. Rather, the employee ‘“must demonstrate such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s
proffered legitimate reasons for its action that a reasonable factfinder could rationally
find them ‘unworthy of credence,’ [citation], and hence infer ‘that the employer did not
act for the [… asserted] non-discriminatory reasons.’”’” (Horn v. Cushman & Wakefield
Western (1999) 72 Cal.App.4th 798, 807.) “Proof that the employer’s proffered reasons
are unworthy of credence may ‘considerably assist’ a circumstantial case of
discrimination, because it suggests the employer had cause to hide its true reasons.
[Citation.] Still, there must be evidence supporting a rational inference that intentional
discrimination, on grounds prohibited by the statute, was the true cause of the
employer’s actions.” (Guz, supra, 24 Cal.4th at p. 361.) “[W]e must bear in mind
that, ‘“[b]ecause discrimination cases often depend on inferences rather than on direct
evidence, summary judgment should not be granted unless the evidence could not support
any reasonable inference for the nonmovant.”’” (Spitzer v. Good Guys, Inc. (2000) 80
Cal.App.4th 1376, 1386.)
9.
A. Discrimination Based on Disability
Under FEHA, it is unlawful for an employer to discriminate against a person in the
terms, conditions, or privileges of employment because of physical disability. (§ 12940,
subd. (a).) The elements of a plaintiff’s prima facie case of disability discrimination are:
the plaintiff “(1) suffered from a disability, or was regarded as suffering from a disability;
(2) could perform the essential duties of the job with or without reasonable
accommodations, and (3) was subjected to an adverse employment action because of the
disability or perceived disability.” (Sandell, supra, 188 Cal.App.4th at p. 310.)
Pregnancy itself is not a disability. (§ 12926, subd. (m); § 12940, subd. (a); see also,
Gudenkauf v. Stauffer Communications (Kan. D.C. 1996) 922 F.Supp. 465, 473.)
However, “[a] woman is ‘disabled by pregnancy’ if, in the opinion of her health care
provider, she is unable because of pregnancy to perform any one or more of the essential
functions of her job or to perform any of these functions without undue risk to herself, to
her pregnancy’s successful completion, or to other persons. An employee also may be
considered to be disabled by pregnancy if, in the opinion of her health care provider, she
is suffering from severe morning sickness or needs to take time off for: … bed rest.”
(Cal. Code Regs., tit. 2, § 11035(f).)
1. Prima facie case
In their motion for summary judgment, defendants argued that plaintiff could not
establish a prima facie case of disability discrimination because she could not show the
existence of a disability or a causal connection between the claimed disability and her
termination. Defendants asserted that, at the time of termination, no health care provider
had expressed an opinion that plaintiff was unable to perform any of the essential
functions of her job because of her pregnancy. Thus, she could not establish the
existence of a disability. Further, “[a]s part of showing that discriminatory animus was a
substantial cause of the adverse employment action, an employee must show that the
employer had knowledge of the employee’s protected characteristic,” such as a disability.
10.
(Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 590-591 (Soria).)
Defendants contended plaintiff could not establish they knew, at the time they made the
decision to terminate plaintiff’s employment, that she was disabled due to pregnancy;
consequently, plaintiff could not establish any causal connection between the decision to
terminate her employment and a claimed disability of which defendants had no
knowledge.
FEHA, however, “protects individuals not only from discrimination based on an
existing physical disability, but also from discrimination based on a potential disability or
the employer’s perception that the individual has an existing or potential disability.”
(Soria, supra, 5 Cal.App.5th at p. 584; see also, § 12926, subd. (m)(5).) “[A]n employee
… may be considered to be disabled by pregnancy if, in the opinion of her health care
provider, she is suffering from severe morning sickness.” (Cal. Code Regs., tit. 2,
§ 11035(f).) Although there was no evidence that defendants were aware of any health
care provider’s opinion that plaintiff was suffering from severe morning sickness prior to
the decision to terminate plaintiff’s employment, plaintiff presented undisputed evidence
that she told Reel and Rauch about her pregnancy on January 6 and January 8, 2018,
respectively. Within a few days after, plaintiff was being told she was using the restroom
too often, which plaintiff attributed to severe morning sickness. On January 13, 2018,
when Reel gave plaintiff her final performance correction notice, plaintiff told Reel she
was using the bathroom to throw up. In her January 14, 2018, e-mail to Dunn, plaintiff
disclosed that she was “pregnant and having severe nausea/stomach problems,” and
complained that she was “being told on for being in the bathroom too long.” In
discussing this e-mail during deposition, Dunn testified she “thought it was possible”
plaintiff needed an accommodation. This is evidence that, even if defendants did not
have knowledge of an existing disability at that time, they perceived that plaintiff had a
pregnancy-related disability or a potential pregnancy-related disability that might require
11.
accommodation. It is sufficient to raise a triable issue of fact regarding whether plaintiff
was perceived to be disabled or to have a potential disability.
2. Legitimate, nondiscriminatory reason
Defendants’ motion for summary judgment also addressed the second step in the
burden-shifting test. Defendants asserted they had a legitimate, nondiscriminatory reason
for terminating plaintiff’s employment, and presented evidence in support. They argued
plaintiff had excessive absences even before defendant was aware she was pregnant, and
she continued to be absent even after receiving a final written performance correction
notice on January 13, 2018, which required that she have no further absences during the
next six months. Defendants asserted plaintiff failed to comply with their attendance and
absenteeism policy and violated the terms of the final written performance correction
notice.
At the time of plaintiff’s termination, defendants’ attendance and absenteeism
policy provided, in pertinent part:
“2. If CHI personnel are sick or unable to report to their assignment, they
must make direct contact with their supervisor or contact and/or page their
supervisor or Administration person-on-call. Notification should occur at
least two hours before the beginning of the workday or earlier, if possible.
“3. Absenteeism for more than two consecutive days without notification
(no call/no show) will be considered a voluntary resignation.
“4. Absence of more than three days requires a physician’s note. … Even
with a physician’s note excessive absenteeism may result in disciplinary
action, up to and including termination of employment.
“5. Inconsistent attendance and excessive tardiness will lead to disciplinary
action, up to and including termination of employment.
“6. In order to determine excessive absenteeism, supervisory personnel will
look for the following: [¶] … [¶]
“ Not calling in on the day of absence; and
12.
“ Excessive days which can be generally defined as more than four
occurrences (other than those protected under state and federal law) in a six
month period….”
Defendants presented evidence that plaintiff’s superiors were concerned about her
tardiness and absenteeism beginning in December 2017, just after her demotion to senior
retail clerk, and continuing into January 2018. In e-mails among Reel, Renner, Dunn,
and McLeod beginning on January 11, 2018, and subsequently, they discussed
terminating plaintiff’s employment because of her attendance issues. Reel expressed her
desire to terminate plaintiff’s employment, because it was adversely affecting morale
among the staff; other employees were working overtime to cover plaintiff’s absences
and felt plaintiff was being shown favoritism, because the same conduct would not have
been tolerated from them. Plaintiff was familiar with CHIMI’s attendance and
absenteeism policy. She was given a final written performance correction notice on
January 13, 2018, which required that she have no further absences for six months, unless
the time off was protected by law. Plaintiff did not work any further shifts for which she
was scheduled; on two of the days, she did not contact any of defendants’ personnel
before her shift to notify them she would not be working. Plaintiff did not dispute that
she was absent on the dates specified by defendants, or that she failed to notify
defendants of her intended absence before her shifts on January 19 and 20, 2018.
“The employer’s burden to provide a legitimate nondiscriminatory reason is one of
production, not persuasion, and the employer ‘“‘“need not persuade the court that it was
actually motivated by the proffered reasons … [but only] raise[] a genuine issue of fact as
to whether it discriminated against the [plaintiff].”’”’” (Abed, supra, 23 Cal.App.5th at
pp. 736-737.) Defendants met this burden, by presenting undisputed facts, supported by
evidence, showing a legitimate, nondiscriminatory reason that may have motivated them
to terminate plaintiff’s employment. The burden then shifted to plaintiff to present
evidence raising a triable issue of fact regarding whether defendants’ proffered reasons
13.
for termination were untrue or pretextual, or to present other evidence of a discriminatory
animus.
3. Evidence of pretext
Plaintiff did not present any direct evidence of a discriminatory motive. She
presented no evidence that any of defendants’ personnel stated her employment was
terminated because of her pregnancy or a pregnancy-related disability; she presented no
evidence defendants’ personnel made negative comments about pregnancy, pregnancy-
related disability, or pregnant employees in general, or about plaintiffs’ pregnancy or any
perceived pregnancy-related disability in particular. Plaintiff contends, however, that she
presented direct evidence of intentional discrimination, and therefore the burden shifting
analysis does not apply and she is only required to produce “‘very little’” direct evidence
of discriminatory intent to move past summary judgment. (DeJung, supra, 169
Cal.App.4th at p. 550; Morgan v. Regents of University of California (2000) 88
Cal.App.4th 52, 69 (Morgan).)
Plaintiff’s opening brief states: “The fact that Defendants knew about Plaintiff’s
pregnancy, knew about Plaintiff’s attempts to call off for her shifts on January 20 and
21st, and then orchestrated a situation whereby they could claim that she abandoned her
position and terminate Plaintiff’s employment is direct evidence of discrimination.”
Plaintiff’s proffered evidence is not direct evidence of discriminatory animus, however.
Direct evidence is evidence that proves a fact without inference or presumption.
(DeJung, supra, 169 Cal.App.4th at p. 550.) Reaching a conclusion that defendants
intentionally discriminated against plaintiff on the basis of a pregnancy-related disability
would require that inferences be drawn from the evidence plaintiff cites. That evidence is
circumstantial, rather than direct.
In response to a moving defendant’s showing of a legitimate, nondiscriminatory
reason for taking an adverse employment action against the plaintiff, the plaintiff must
“present evidence that the employer’s decision was motivated at least in part by
14.
prohibited discrimination,” that is, that discrimination was a substantial motivating factor
in the decision. (Featherstone v. Southern California Permanente Medical Group (2017)
10 Cal.App.5th 1150, 1158-1159 (Featherstone).) The plaintiff must “produce
‘substantial evidence that the employer’s stated nondiscriminatory reason for the adverse
action was untrue or pretextual, or evidence the employer acted with a discriminatory
animus, or a combination of the two, such that a reasonable trier of fact could conclude
the employer engaged in intentional discrimination.’” (Hicks v. KNTV Television, Inc.
(2008) 160 Cal.App.4th 994, 1003.) In the absence of direct evidence of discriminatory
animus, the plaintiff may do this by demonstrating “‘such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate
reasons for its action that a reasonable factfinder could rationally find them “unworthy of
credence,” [citation], and hence infer “that the employer did not act for [the asserted]
non-discriminatory reasons.”’” (Hersant, supra, 57 Cal.App.4th at p. 1005.) “Pretext
may also be inferred from the timing of the company’s termination decision, by the
identity of the person making the decision, and by the terminated employee’s job
performance before termination.” (Flait v. North American Watch Co. (1992) 3
Cal.App.4th 467, 479.)
Plaintiff presented evidence that she told three of defendants’ personnel – Reel,
Rauch, and Dunn – of her pregnancy, and within three weeks, her employment was
terminated. It was terminated just eight days after plaintiff told Dunn she was “pregnant
and having severe nausea/stomach problems.” Although temporal proximity “does not,
without more, suffice … to satisfy the secondary burden borne by the employee to show a
triable issue of fact on whether the employer’s articulated reason was untrue and
pretextual” (Loggins v. Kaiser Permanente International (2007) 151 Cal.App.4th 1102,
1112), it is a factor to be considered along with other evidence.
Plaintiff presented circumstantial evidence attempting to show defendants’ stated
reasons for terminating her employment were untrue and therefore unworthy of credence.
15.
She asserted defendants gave different reasons for her termination at different times.
Federal cases3 have suggested that an employer’s shifting explanations for its adverse
employment action may raise a triable issue of material fact regarding its motives for
taking the action. “[F]undamentally different justifications for an employer’s action
would give rise to a genuine issue of fact with respect to pretext since they suggest the
possibility that neither of the official reasons was the true reason.” (Washington v.
Garrett (9th Cir. 1993) 10 F.3d 1421, 1434; accord, Nidds v. Schindler Elevator Corp.
(9th Cir. 1996) 113 F.3d 912, 918.)
The e-mail Dunn sent to plaintiff on January 22, 2018, effectively terminating her
employment, stated plaintiff had been out two days and did not contact defendants before
or during those shifts; it stated that, “under the law and company policy,” this meant she
had abandoned her job. The declarations of Dunn, Renner, and McLeod, filed in support
of defendants’ motion for summary judgment, uniformly stated that they agreed on
January 22, 2018, to terminate plaintiff for “job abandonment consistent with CHI
Management’s Attendance and Absenteeism policy.” Plaintiff also presented evidence
that Dunn told the employment development department that plaintiff voluntarily quit
due to three absences when she failed to call in or report.
Defendants’ separate statement of undisputed material facts, however, asserted
defendants made the decision to terminate plaintiff’s employment “as a result of
Plaintiff’s continued failure to comply with CHIMI’s Attendance and Absenteeism policy
following her final Performance Correction Notice and in light of the issues Mrs. Reel
felt Plaintiff’s absences were creating for the Oakdale store.” The declarations cited by
defendants in support of that statement — those of Dunn, Renner, and McLeod, the three
persons who made the decision to terminate plaintiff’s employment — did not support
3 “Because of the similarity between state and federal employment discrimination
laws, California courts look to pertinent federal precedent when applying our own
statutes.” (Guz, supra, 24 Cal.4th at p. 354.)
16.
the statement; they indicated plaintiff’s employment was terminated due to job
abandonment. Although the declarations discussed plaintiff’s absences and tardies, none
of the declarants’ stated termination was based on excessive absenteeism or tardiness,
failure to comply with any particular aspect of the attendance and absenteeism policy, or
issues created by plaintiff’s absences. In her deposition, Dunn confirmed plaintiff was
terminated for not coming in for her shifts or calling to notify her supervisor she would
not be working, at least on January 19 and 20, 2018. Dunn added that plaintiff had had
issues the prior week as well, when she had called, but had not actually said she would
not be in for work; she had said she was at the doctor with her son, but did not say
whether she would be in for even part of her shift.
In support of defendants’ statement that plaintiff was terminated because of her
failure to comply with defendants’ attendance and absenteeism policy and the issues her
absences caused, defendants also cited e-mails among McLeod, Dunn, Renner, and Reel,
which discussed plaintiff’s absences and the hardships they caused to the Oakdale store;
the e-mails also discussed terminating plaintiff’s employment. None indicated her
employment was actually terminated for those reasons, however. In fact, in notes written
after Dunn received plaintiff’s January 14, 2018, e-mail complaining of being criticized
or harassed about her bathroom usage, Dunn stated, “it would not be a good idea to
terminate her while she has a complaint that needs to be resolved.” Dunn also noted on
January 16, 2018, “After discussions with John [Renner] and DeSha [McLeod], it was
determined to give her another warning regarding attendance instead of termination in
light of her complaint.”
Thus, the evidence shows that defendants shifted their explanation for plaintiff’s
termination when they filed their motion for summary judgment. The evidence
defendants cited in their separate statement does not support the claim that plaintiff was
terminated “as a result of Plaintiff’s continued failure to comply with CHIMI’s
17.
Attendance and Absenteeism policy … and in light of the issues Mrs. Reel felt Plaintiff’s
absences were creating for the Oakdale Store.”
“A defendant’s failure to follow its own policies or procedures may also provide
evidence of pretext.” (Moore v. Regents of University of California (2016) 248
Cal.App.4th 216, 245.) The January 22, 2018, e-mail defendants sent to plaintiff
represented that she had abandoned her job under company policy. Dunn, Renner, and
McLeod asserted in their declarations that plaintiff abandoned her job “consistent with
CHI Management’s Attendance and Absenteeism policy.” The attendance and
absenteeism policy cited by defendants, however, does not mention “job abandonment.”
The declarants apparently were referring to the provision of the attendance and
absenteeism policy that states: “Absenteeism for more than two consecutive days without
notification (no call/no show) will be considered a voluntary resignation.” (Italics
added.)
The evidence presented by the parties indicated plaintiff was not absent without
notification for “more than” two consecutive days. Plaintiff failed to call before or
during her scheduled shifts on January 19 and 20, 2018, to advise defendants that she
would not work those shifts. After plaintiff’s shift was over on Saturday, January 20, she
texted Rauch, advising that plaintiff had been sick, could barely get out of bed, and had
an appointment to see her doctor on Wednesday. The text did not expressly state plaintiff
would be off sick until her doctor’s appointment on Wednesday. When Reel saw the
text, however, she interpreted it that way; she advised Dunn, Renner, and McLeod that
plaintiff was “going to the doctor on Wednesday so 3 more days out.” As interpreted,
plaintiff’s text served as advance notice that she would not be working the next three
days, including January 21, 2018. Consequently, January 21, 2018, did not qualify as
another consecutive “no call/no show” day. Plaintiff had two consecutive “no call/no
show” days, not “more than” two, as required by the Attendance and Absenteeism policy.
18.
Defendants’ failure to follow its own policy may be evidence of an attempt to hide an
improper, discriminatory motive for her termination.
There was evidence that, even before defendants gave plaintiff the final
performance correction notice on January 13, 2018, Dunn recognized that, “if [plaintiff]
mentions in any way that she has a serious health issue that is causing her to miss work;
we are obligated to offer her FMLA/CFRA[4 ] leave or intermittent leave. This would
protect her, if she has it certified from a doctor.” On January 14, 2018, plaintiff e-mailed
Dunn to complain, among other things, that she was “being told that she was in the
bathroom too long”; she explained that she was “pregnant and having severe
nausea/stomach problems.” In her deposition, plaintiff clarified that it was Reel who
talked to her about being in the bathroom too long. Dunn testified in deposition that
defendants were not aware plaintiff had any kind of a serious health condition “[u]ntil she
emailed [Dunn] on the 14th.” She also stated that, after receiving plaintiff’s January 14,
2018, e-mail, she thought it was possible plaintiff might need an accommodation, but she
wanted to talk to plaintiff to find out what was going on in order to make a more
informed decision. On January 15, 2018, Dunn went to plaintiff’s store at the beginning
of her scheduled shift to speak with her, but plaintiff never arrived and did not work that
day.
Plaintiff did not work her shifts on January 14, 15, or 16, 2018. Despite the
warning in the final Performance Correction Notice that any further absences would
result in termination, she was not terminated for those absences.
On January 19, 2018, about 15 minutes after plaintiff was scheduled to begin her
shift, Reel e-mailed Dunn, Renner, and McLeod, suggesting they could consider
plaintiff’s absence to be a no call/no show, because she had not yet contacted anyone
4 FMLA apparently refers to the Family and Medical Leave Act of 1993 (29 U.S.C.
§§ 2601-2654). CFRA apparently refers to the California Family Rights Act, also known
as the Moore-Brown-Roberti Family Rights Act (§§ 12945.1, 12945.2).
19.
about her absence. In response, Dunn e-mailed: “Please make sure you and [Rauch] do
not call her. If she responds it ruins the no call no show.” Again, on January 20, 2018,
plaintiff failed to come to work or to call and explain her absence; she texted Rauch in
the evening, after her shift, to say she had been sick. Rauch informed Reel, who
instructed her not to respond to plaintiff’s text.
Dunn’s handwritten notes reflected receipt of plaintiff’s January 14, 2018, e-mail
“alleging she is being given a hard time about her restroom usage.” Plaintiff’s e-mail
attributed her increased bathroom use to being pregnant and experiencing severe nausea
or stomach problems. Dunn’s notes expressed her reluctance to terminate plaintiff’s
employment while her complaint remained unresolved. In additional notes, dated
January 16, 2018, Dunn stated: “After discussions with [Renner] and [McLeod], it was
determined to give her another warning regarding attendance instead of termination in
light of her complaint.”
A reasonable trier of fact could infer from this evidence that defendants were
attempting to evade contact with plaintiff in order to avoid being notified that she had a
pregnancy-related condition that amounted to a disability and required accommodation.
Further, a reasonable trier of fact could infer defendants hastened to conclude that
plaintiff voluntarily resigned or abandoned her job, even before she met the “more than
two consecutive days” standard for voluntary resignation set out in the attendance and
absenteeism policy, in order to avoid dealing with the consequences of her pregnancy or
potential pregnancy-related disability, including resolving her complaint about bathroom
use. A termination due to absenteeism would require affirmative action on the part of the
employer; it would require making an affirmative decision that plaintiff’s conduct
warranted termination. The existence of the unresolved complaint could call into
question defendants’ motives for deciding to terminate her employment. A voluntary
resignation due to the employee’s multiple instances of “no call/no show,” however,
20.
would imply a choice by the employee to give up the job, rather than a choice by the
employer to terminate the employment.
We conclude that, construed most favorably to plaintiff as the nonmoving party,
there was substantial evidence from which a trier of fact could conclude the reasons for
the decision to terminate plaintiff’s employment were a pretext for discrimination on the
basis of pregnancy or a pregnancy-related disability. Summary adjudication of the
second cause of action for disability discrimination should not have been granted.
B. Pregnancy Discrimination
In requesting summary adjudication of plaintiff’s first cause of action for
discrimination on the basis of pregnancy, defendants proceeded to the second step of the
burden shifting analysis and asserted they had legitimate, nondiscriminatory reasons for
terminating plaintiff’s employment. They argued plaintiff was terminated for
absenteeism and tardiness. They maintained plaintiff’s only evidence of discriminatory
animus was the temporal proximity between the disclosure of her pregnancy and the
termination of her employment, which is insufficient to establish pretext.
Sex discrimination under FEHA includes discrimination on the basis of
“[p]regnancy or medical conditions related to pregnancy.” (§ 12926, subd. (r)(1)(A).)
Defendants’ motion did not directly address a claim of discrimination on the basis of a
medical condition related to pregnancy, although such a claim appears to be encompassed
within plaintiff’s pregnancy discrimination cause of action. We conclude the same
evidence that raised a triable issue of material fact regarding plaintiff’s cause of action for
discrimination on the basis of a pregnancy-related disability raises a triable issue of
material fact regarding her cause of action for discrimination on the basis of sex and
pregnancy. Accordingly, summary adjudication of the first cause of action for sex or
pregnancy discrimination should not have been granted.
21.
III. FAILURE TO REASONABLY ACCOMMODATE DISABILITY
Plaintiff’s third cause of action alleges defendants violated their duty to make
reasonable accommodations for her pregnancy-related disability. Under section 12940,
subdivision (m)(1), “FEHA provides an independent cause of action for an employer’s
failure ‘to make reasonable accommodation for the known physical or mental disability
of an applicant or employee’ unless the accommodation would cause ‘undue hardship’ to
the employer.” (Soria, supra, 5 Cal.App.5th at pp. 597-598.) Generally, “‘reasonable
accommodation’ in the FEHA means … a modification or adjustment to the workplace
that enables the employee to perform the essential functions of the job held or desired.”
(Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 974.) “A
leave of absence also may be a reasonable accommodation if, after the leave, the
employee can return to work, with or without further reasonable accommodation.” (Cal.
Code Regs., Title 2, § 11068(c); Zamora, supra, 71 Cal.App.5th at pp. 41-42.)
“The elements of a failure to accommodate claim are ‘“(1) the plaintiff has a
disability under the FEHA, (2) the plaintiff is qualified to perform the essential functions
of the position [held or desired], and (3) the employer failed to reasonably accommodate
the plaintiff's disability.”’” (Kaur v. Foster Poultry Farms LLC (2022) 83 Cal.App.5th
320, 346.) FEHA does not require accommodation of a perceived or potential future
disability; it requires reasonable accommodation of an actual, known disability. “Once
an employer is aware of a disability, it has an ‘affirmative duty’ to make reasonable
accommodations for the employee. [Citation.] [¶] ‘Generally, “‘[t]he employee bears
the burden of giving the employer notice of the disability. [Citation.] This notice then
triggers the employer’s burden to take “positive steps” to accommodate the employee’s
limitations.’”’” (Soria, supra, 5 Cal.App.5th at p. 598.) The duty to accommodate also
may arise, however, when the employer becomes aware of the disability and need for
accommodation through a third party, such as a health care provider. (Zamora, supra, 71
Cal.App.5th at p. 41.)
22.
Defendants presented evidence that, while plaintiff informed Reel and Rauch that
she was pregnant, she did not advise defendants of any related disability or need for
accommodation. Plaintiff told Rauch about her pregnancy when Rauch asked her to
carry furniture to a customer’s car; plaintiff requested that she not be asked to carry
anything heavy. Rauch complied with that request. On January 13, 2018, after
delivering the final performance correction notice, Reel asked plaintiff what was going
on, and if there was anything she could do; plaintiff said there was nothing Reel could do
to help. Plaintiff did not provide defendants with a doctor’s note about her condition.
Plaintiff’s January 20, 2018, text to Rauch stated she was sick, but was not sure if it was
flu or pregnancy.5 Her health care providers’ documentation from her January 21, 2018,
emergency room visit was not given to defendants, and did not instruct her to stay home
and not work. It stated: “Plan: Will D/C to home to F/U with OB. Rx for Pelvic rest
given, recurrence precautions. Return if worse.” The paperwork also stated: “Take it
easy if you are not feeling well. Bed rest may help control cramps but you do not have to
stay in bed.” Plaintiff’s January 21, 2018, e-mail to Rauch, which stated, “The e.r. doctor
has ordered me to stay home and take things very easy until I go to my o.b. appt on
Wednesday the 24th,” was not opened by Rauch and read until after the decision to
terminate plaintiff’s employment had been made.
“A woman is ‘disabled by pregnancy’ if, in the opinion of her health care provider,
she is unable because of pregnancy to perform” her job duties or “in the opinion of her
health care provider, she is suffering from severe morning sickness or needs to take time
off for … bed rest.” (Cal. Code Regs., tit. 2, § 11035(f).) The evidence indicates that, at
the time McLeod, Dunn, and Renner decided to terminate plaintiff’s employment, they
did not have knowledge of any opinion by a health care provider that plaintiff was unable
5 We note that mild conditions, such as influenza and the common cold, which do
not limit a major life activity, do not constitute disabilities under FEHA. (Cal. Code
Regs., tit. 2, § 11065(d)(9)(B).)
23.
to perform her job functions, suffered from severe morning sickness, or needed to take
time off for bed rest.
The evidence does not support an inference that plaintiff notified defendants, prior
to the decision to terminate her employment, that she had an actual disability that
required accommodation, or that defendants acquired such knowledge from some third
party source. Accordingly, the duty to reasonably accommodate plaintiff’s claimed
disability did not arise while she was employed with defendants. Plaintiff did not present
evidence raising a triable issue of fact on this issue. Consequently, summary adjudication
of the third cause of action was proper.
IV. FAILURE TO ENGAGE IN THE INTERACTIVE PROCESS
Plaintiff’s fourth cause of action alleges failure to engage in the interactive process
to determine reasonable accommodations for her disability. FEHA makes it an unlawful
employment practice for an employer “to fail to engage in a timely, good faith,
interactive process with the employee … to determine effective reasonable
accommodations, if any, in response to a request for reasonable accommodation by an
employee … with a known physical … disability ….” (§ 12940, subd. (n).) The term
“interactive process” is defined to mean: “timely, good faith communication between the
employer … and the … employee or, when necessary because of the disability or other
circumstances, his or her representative to explore whether or not the … employee needs
reasonable accommodation for the … employee’s disability to perform the essential
functions of the job, and, if so, how the person can be reasonably accommodated.” (Cal.
Code. Regs., tit. 2, § 11065(j).) “‘The “interactive process” required by the FEHA is an
informal process with the employee or the employee’s representative, to attempt to
identify a reasonable accommodation that will enable the employee to perform the job
effectively.’” (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1013
(Scotch).)
24.
The employer’s duty to initiate the interactive process is triggered when an
employee with a known physical disability requests reasonable accommodations or the
employer becomes aware of the need for accommodations through a third party or by
observation. (Cal. Code. Regs., tit. 2, § 11069(b).) “The employee must initiate the
process unless the disability and resulting limitations are obvious. ‘Where the disability,
resulting limitations, and necessary reasonable accommodations, are not open, obvious,
and apparent to the employer, … the initial burden rests primarily upon the employee …
to specifically identify the disability and resulting limitations, and to suggest the
reasonable accommodations.’” (Scotch, supra, 173 Cal.App.4th at p. 1013.)
Defendants presented evidence, in the form of plaintiff’s deposition testimony,
that she did not give defendants any documentation from her health care providers
advising that she needed to take time off work or prescribing bed rest, because of a
pregnancy disability. The text plaintiff sent to Rauch on the evening of January 20, 2018,
stated she had been sick and was not sure if it was flu or pregnancy. It did not indicate
that a health care provider believed she was “unable because of pregnancy to perform”
her essential job duties or, in the health care provider’s opinion, she was “suffering from
severe morning sickness or need[ed] to take time off for … bed rest” because of her
pregnancy. (Cal. Code Regs., tit. 2, § 11035(f).)
Plaintiff relied on her January 21, 2018, e-mail to Rauch as evidence defendants
had notice that a health care provider prescribed bed rest for her. That e-mail was sent to
Rauch on Sunday, January 21, 2018. Rauch declared that she did not have access to her
work e-mail on Sunday; she did not open the e-mail from plaintiff until around noon on
Monday, January 22, 2018, and did not forward it to Renner and Dunn until 12:10 p.m.
that day. Dunn e-mailed plaintiff at 9:47 a.m. on January 22, 2018, telling plaintiff she
had abandoned her job. Thus, there is no evidence plaintiff notified defendants of any
pregnancy-related disability before her employment was terminated.
25.
The evidence indicates that, at the time plaintiff’s employment was terminated,
defendants did not have knowledge that plaintiff had any actual physical disability, and
plaintiff had not requested reasonable accommodation for any disability. Plaintiff has not
raised a triable issue of fact regarding defendants’ knowledge or plaintiff’s lack of a
request for accommodation. Consequently, summary adjudication of the fourth cause of
action was properly granted.
V. RETALIATION
Plaintiff’s fifth cause of action alleges retaliation in violation of section 12940,
subdivision (h). That section makes it an unlawful business practice for an employer to
“discriminate against any person because the person has opposed any practices forbidden
under [FEHA] or because the person has filed a complaint, testified, or assisted in any
proceeding under [FEHA].” (§ 12940, subd. (h).) “[I]n order to establish a prima facie
case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a
‘protected activity,’ (2) the employer subjected the employee to an adverse employment
action, and (3) a causal link existed between the protected activity and the employer’s
action.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz).)
“‘The retaliatory motive is “proved by showing that plaintiff engaged in
protected activities, that his employer was aware of the protected
activities, and that the adverse action followed within a relatively short time
thereafter.” [Citation.] “The causal link may be established by an
inference derived from circumstantial evidence, ‘such as the employer’s
knowledge that the [employee] engaged in protected activities and the
proximity in time between the protected action and allegedly retaliatory
employment decision.’” [Citation.]’” (Morgan, supra, 88 Cal.App.4th at
p. 69.)
As in discrimination claims, the burden shifting analysis applies. “Once an
employee establishes a prima facie case, the employer is required to offer a legitimate,
nonretaliatory reason for the adverse employment action.” (Yanowitz, supra, 36 Cal.4th
26.
at p. 1042.) If the employer does so, “the burden shifts back to the employee to prove
intentional retaliation.” (Ibid.)
Plaintiff’s retaliation cause of action alleges she engaged in protected activity,
including raising complaints of sexual harassment and requesting a leave of absence and
accommodation for her disabilities. Defendants allegedly retaliated against her for her
sexual harassment complaints by demoting her, and retaliated for her request for
accommodation by terminating her employment.
A. Demotion
1. Causation
Regarding plaintiff’s claim that she was demoted in retaliation for her complaints
that Renner sexually harassed her, defendants argued plaintiff could not establish
causation because her last complaint was too remote in time from her demotion. Further,
they asserted they had legitimate, nonretaliatory reasons for demoting plaintiff from store
manager, and she had no evidence to show their reasons were a pretext for unlawful
retaliation.
Defendants argued that plaintiff’s last complaint about sexual harassment occurred
five or six months before her demotion. They argued this was too long a time as a matter
of law to give rise to an inference of causation.
Plaintiff presented evidence that, throughout her employment with defendants,
Renner would hug her, even if she resisted. Additionally, on one occasion when she
worked at the Oakdale store, Renner walked up while plaintiff was bending over
arranging a display in the jewelry counter and asked, “where are all the ‘girls’ at?” When
plaintiff stood up, Renner stared at her breasts and stated, “oh, there they are.” On
another occasion, while plaintiff worked at the Manteca store, she was getting ready to
have lunch with Renner and told him she needed to run to the restroom because she was
having a wardrobe malfunction; Renner responded, “oh, I can help you out with that.”
27.
Defendants relied on three allegedly undisputed facts to show the length of time
that elapsed between plaintiff’s complaints and her demotion: (1) plaintiff claimed she
complained to Reel about a comment Renner made “sometime before her write-up”; (2)
plaintiff received a performance correction notice on July 27, 2017; and (3) plaintiff was
demoted on December 14, 2017. In support, defendants cited plaintiff’s deposition
testimony that she told Reel about the wardrobe malfunction comment “sometime before
her write-up.” Defendants apparently interpreted plaintiff’s testimony to mean she
complained to Reel about the wardrobe malfunction comment prior to her July 27, 2017,
performance correction notice. They asserted the five or six months that elapsed between
the July 2017 complaint and her demotion on December 14 was too long as a matter of
law to raise an inference of causation.
Plaintiff, however, submitted evidence that her last complaint to Reel occurred in
early October 2017, prior to the performance correction notice she received on October
12, 2017. Liberally construing the evidence in support of plaintiff’s opposition to the
motion, and resolving all doubts in her favor (Yanowitz, supra, 36 Cal.4th at p. 1037), we
conclude defendants failed to demonstrate that plaintiff’s last complaint occurred in, or
prior to, July 2017, and therefore failed to demonstrate as a matter of law that plaintiff
cannot establish the element of causation for her retaliation cause of action.
2. Pretext
Defendants also put forth evidence of legitimate, nonretaliatory reasons for their
decision to demote plaintiff from store manager to senior retail clerk. While plaintiff was
manager of the Manteca store, the store was not profitable. The store was cluttered and
dirty, plaintiff failed to lead her team or build comradery among them, plaintiff’s
accounting practices were poor, and Renner and Reel felt plaintiff was less present in the
store. Plaintiff was given performance correction notices, but failed to improve her
performance. After the store plaintiff managed underperformed for a year, Renner,
28.
McLeod, and Dunn made the decision to demote plaintiff to senior retail clerk and
demoted her.
Plaintiff argued that defendants’ claim she was underperforming as manager of the
Manteca store was not supported by the facts. She cited to a performance evaluation she
was given on July 27, 2017, which gave her a rating of “meets standards.” The
performance evaluation reflected the evaluator’s belief plaintiff was “having a difficult
time managing and leading her employees, the administration functions, the store
promotions, and herself.” She needed to focus on “providing excellent Customer service,
consistently rotating new merchandise out to the sales floor and improving the overall
moral[e] of the employees.” Plaintiff contended she was having a difficult time because
of things that were out of her control. Renner would not allow her to issue disciplinary
actions to her employees for insubordinate behavior.
The July 27, 2017, evaluation was given to plaintiff the same day she was given a
performance correction notice, which elaborated on the concerns about her leadership,
management, and employee morale, and added concerns about the lack of cleanliness and
organization in the store. On October 12, 2017, plaintiff was given a second performance
correction notice, expressing similar concerns, and adding concerns about her cash
handling and communications.
Essentially, plaintiff’s evidence challenges the correctness of defendants’ decision
to demote plaintiff. To establish pretext, however, the employee “cannot simply show
that the employer’s decision was wrong or mistaken, since the factual dispute at issue is
whether [retaliatory] animus motivated the employer, not whether the employer is wise,
shrewd, prudent, or competent.” (Hersant, supra, 57 Cal.App.4th at p. 1005.) The
evidence plaintiff presented does not indicate McLeod, Renner, or Dunn — the persons
who participated in the decision to demote her — harbored any retaliatory animus based
on plaintiff’s complaints of sexual harassment. Plaintiff’s evidence indicates Reel
witnessed Renner hug her, and plaintiff complained to Reel about the two other incidents
29.
of alleged sexual harassment. There was no evidence McLeod, Renner, or Dunn was
aware of any complaints plaintiff made about Renner’s conduct.
Plaintiff also presented as a fact the statement that “[d]uring her employment,
Plaintiff had not seen any other store managers get demoted or terminated for poor sales
numbers.” In Foroudi, an age discrimination case, the plaintiff relied on similar
evidence: “evidence that he never personally observed an employee over 60 years of age
being promoted.” (Foroudi, supra, 57 Cal.App.5th at p. 1010.) The court observed:
“[The plaintiff’s] limited personal observations have minimal probative value and are far
too weak to raise an inference of discrimination, even when considered with his other
evidence.” (Ibid.) Plaintiff presented the evidence of her observation without any
evidence that she was in a position to know whether other stores were profitable or
whether other store managers were disciplined in any way for “poor sales numbers.” In
any event, defendants’ evidence indicated plaintiff was demoted based on problems other
than just “poor sales numbers.”
We conclude plaintiff failed to raise a triable issue of material fact regarding
whether defendants’ asserted legitimate, nonretaliatory reasons for her demotion were a
pretext for retaliation for her alleged complaints of sexual harassment.
B. Termination
Plaintiff asserts her retaliation cause of action also included allegations that her
employment was terminated in retaliation for requesting reasonable accommodations for
her disability. Defendants presented the same facts and evidence in response to
plaintiff’s retaliation claim, showing they had a legitimate reason for plaintiff’s
termination, as they presented in response to the discrimination causes of action. Plaintiff
also relied on the same evidence she presented and arguments she made in support of her
discrimination causes of action, asserting that defendants’ claimed reasons for
terminating her employment were a pretext for retaliation. As discussed in section III.
above, the evidence indicates plaintiff did not notify defendants that she had a disability
30.
or request accommodation before the decision to terminate her employment was made.
An employer can only retaliate against an employee for engaging in protected activities if
the employer is aware of those activities. (Morgan, supra, 88 Cal.App.4th at p. 70.)
The text plaintiff sent to Rauch in the evening of January 20, 2018, said she was
sick, but “[n]ot sure if it’s the flu or just pregnancy.” The e-mail plaintiff sent to Rauch
the evening of January 21, 2018, referred to a “threatened miscarriage” and said the
doctor had ordered her to stay home and take things easy until her obstetrician
appointment on January 24, 2018. Plaintiff implied in her opening brief that this was
notice of a disability or need for accommodation and argued “[i]t is reasonable to assume
that [Rauch] would have seen Plaintiff’s email about the threatened miscarriage soon
after” 6:00 a.m., when Rauch was scheduled to begin work on January 22, 2018. The
evidence was to the contrary, however. Rauch declared she did not open the e-mail until
about noon on January 22, 2018. She forwarded it to Dunn and Renner at 12:10 p.m. that
day; Dunn had already e-mailed plaintiff at 9:47 a.m. to inform her she was considered to
have abandoned her job.
We conclude plaintiff failed to raise a triable issue of material fact regarding
whether defendants’ asserted legitimate, nonretaliatory reasons for the termination of her
employment were a pretext for retaliation for her alleged request for reasonable
accommodations for her disability.
Because plaintiff failed to raise a triable issue of material fact regarding whether
defendants demoted her in retaliation for complaints of sexual harassment or terminated
her employment in retaliation for requests for accommodation for a disability, the trial
court properly granted summary adjudication of the fifth cause of action.
VI. FAILURE TO PREVENT DISCRIMINATION AND RETALIATION
Plaintiff’s sixth cause of action alleges failure to prevent discrimination and
retaliation. FEHA makes it an unlawful employment practice for an employer “to fail to
take all reasonable steps necessary to prevent discrimination and harassment from
31.
occurring.” (§ 12940, subd. (k).) A plaintiff may recover for an employer’s failure to
prevent discrimination or harassment only when actionable discrimination or harassment
has occurred. (Wilkin v. Community Hospital of Monterey Peninsula (2021) 71
Cal.App.5th 806, 830; Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280,
288-289.) The trial court adjudicated plaintiff’s discrimination and retaliation causes of
action in favor of defendants; because it concluded actionable discrimination or
retaliation could not be established, it also granted summary adjudication of the sixth
cause of action. We have determined defendants were not entitled to summary
adjudication of the discrimination causes of action. Accordingly, summary adjudication
of the sixth cause of action was improper.
VII. WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY
Plaintiff’s seventh cause of action is for wrongful termination in violation of
public policy. Such a cause of action must be based on a policy that is reflected in
constitutional or statutory provisions; is public, in the sense that it inures to the benefit of
the public, rather than serving only the interests of the individual; and must have been
articulated at the time of the termination of employment. (Franklin v. The Monadnock
Co. (2007) 151 Cal.App.4th 252, 258.) “The FEHA’s provisions may provide the policy
basis for a claim for wrongful termination in violation of public policy.” (Zamora, supra,
71 Cal.App.5th at p. 31.) Plaintiff’s seventh cause of action is predicated upon the same
violations of FEHA as are alleged in the earlier causes of action
Under California law, if an employer did not violate FEHA, the employee’s claim
for wrongful termination in violation of public policy, based on the policy expressed in
FEHA, necessarily fails. (Featherstone, supra, 10 Cal.App.5th at p. 1170.) The trial
court determined the seventh cause of action failed for lack of a valid underlying claim of
discrimination or retaliation under FEHA. Because we have found defendants did not
establish they were entitled to summary adjudication of plaintiff’s FEHA discrimination
32.
claims, we conclude they also were not entitled to summary adjudication of the seventh
cause of action.
VIII. HOSPICE’S MOTION FOR SUMMARY JUDGMENT
Defendant Hospice filed its own motion for summary judgment, which sought to
establish that it could not be held liable to plaintiff on the claims alleged because it was
not her employer. Because it granted summary judgment in favor of both defendants on
the basis of CHIMI’s motion, in which Hospice joined, the trial court did not rule on
Hospice’s separate motion.
Our review is de novo; we “may affirm a summary judgment on any correct legal
theory, as long as the parties had an adequate opportunity to address the theory in the trial
court.” (California School of Culinary Arts v. Lujan (2003) 112 Cal.App.4th 16, 22.) In
light of our conclusion that we must reverse the summary adjudication of the first,
second, sixth, and seventh causes of action, which was based on CHIMI’s motion, we
must now consider whether Hospice nonetheless is entitled to summary adjudication of
those causes of action based upon its own motion. That motion was filed in the trial court
and opposed by plaintiff; the parties had an adequate opportunity to address the
arguments made. This issue was addressed by the parties in their appellate briefing.
In its motion for summary judgment, Hospice asserted it was not plaintiff’s
employer and therefore was not a proper party to the action. Generally, the proscriptions
of unlawful employment practices set out in FEHA apply to employers, although some
more broadly apply to persons or entities such as labor organizations, employment
agencies, or apprenticeship programs. (§ 12940, subd. (a), (h), (k), (m), (n).) Plaintiff
predicated her claims against Hospice on its alleged role as her employer. Additionally,
“[a]n action for wrongful termination in violation of public policy ‘can only be asserted
against an employer.’” (Kim v. Konad USA Distribution, Inc. (2014) 226 Cal.App.4th
1336, 1351.) “[T]here can be no [wrongful termination in violation of public policy]
cause of action without the prior existence of an employment relationship between the
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parties.’” (Ibid.) Consequently, all of plaintiff’s causes of action require a showing that
Hospice was plaintiff’s employer.
In support of its motion for summary judgment, Hospice offered the following
facts. CHIMI is a nonprofit organization that owns and operates thrift stores. Plaintiff
“became employed” by CHIMI as a volunteer in the Welfare to Work Program. Her
supervisor, Reel, was employed by CHIMI. In December 2013, plaintiff began to work
for CHIMI as a retail clerk; in 2014, she became assistant store manager for the Oakdale
store, where she was still employed by CHIMI and supervised by Reel. In September
2016, plaintiff became store manager for the Manteca store, where she was supervised by
Renner, the Director of Retail for CHIMI. On December 14, 2017, plaintiff was demoted
to senior retail clerk at the Oakdale store, where she was again supervised by Reel.
Plaintiff was terminated by CHIMI in January 2018, and informed of her termination by
Dunn, a CHIMI employee. CHIMI supervised and controlled plaintiff’s work; Hospice
did not employ plaintiff; and CHIMI paid plaintiff’s salary. These final three statements
were supported only by McLeod’s bald statements to that effect, and Reel and Renner’s
statements that they supervised plaintiff.
In its motion, Hospice argued, based on Talley v. County of Fresno (2020) 51
Cal.App.5th 1060 (Talley), that remuneration is essential in order to find an employment
relationship; it contended it did not pay plaintiff, therefore it could not be her employer.
Hospice misconstrues the holding of Talley.
In Talley, a county jail inmate participated in an adult offender work program,
during which he fell and was injured. (Talley, supra, 51 Cal.App.5th at pp. 1063-1064.)
He sued the county, alleging he was disabled, he was employed by the county, the county
failed to reasonably accommodate his disability or to engage in the interactive process to
determine reasonable accommodations, and as a result he was injured. (Id. at p. 1064.)
The county moved for summary judgment, arguing the plaintiff was not its employee and
had no employment relationship with the county as was required for liability under
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FEHA. (Id. at p. 1066.) It based this argument on the fact the plaintiff received no direct
or indirect financial remuneration from the county for the work he performed while in the
program. (Ibid.)
Talley noted that FEHA does not define “employee,” other than to identify certain
individuals who are excluded. (Talley, supra, 51 Cal.App.5th at p. 1071.) It discussed
Vernon v. State of California (2004) 116 Cal.App.4th 114, where a city firefighter alleged
he was an employee of the state, even though there was no direct employment
relationship between them. (Talley, supra, at p. 1072.) Vernon “concluded the ‘common
and prevailing principle espoused in all of the tests directs us to consider the “totality of
circumstances” that reflect upon the nature of the work relationship of the parties, with
emphasis upon the extent to which the defendant controls the plaintiff’s performance of
employment duties.’” (Talley, supra, at p. 1072.) Talley also discussed Bradley v.
Department of Corrections and Rehabilitation (2008) 158 Cal.App.4th 1612, which
“considered whether a temporary social worker, paid under a contract the Department of
Corrections and Rehabilitation (CDCR) had with the National Medical Registry, was an
employee of the CDCR for purposes of the FEHA.” (Talley, supra, at p. 1073.) Bradley
also applied a totality of the circumstances test to determine whether the plaintiff was an
employee of the CDCR. (Talley, supra, at p. 1073.) As Talley noted, both Vernon and
Bradley considered “whether compensated workers had an employment relationship with
their purported employers.” (Id. at p. 1074.)
In Talley, however, the plaintiff was not compensated for his work in the adult
offender work program. (Talley, supra, 51 Cal.App.4th at pp. 1083-1089.) In prior
federal and state cases involving uncompensated plaintiffs, courts had adopted a
threshold-remuneration test providing that, when the purported employee did not receive
any direct or indirect financial remuneration for the work performed, there was no
plausible employment relationship between the parties. (Id. at pp. 1075-1078.) “In other
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words, while remuneration by itself does not prove one is an ‘employee,’ the lack of
remuneration definitively precludes one from being an ‘employee.’” (Id. at p. 1075.)
Talley rejected application of the multi-factor totality of the circumstances test to
the plaintiff’s unpaid work. It explained:
“In cases where there is no dispute that work was performed for a wage or
salary, the threshold remuneration test is satisfied, and the question is
whether that ‘hired’ party is an employee as evaluated by the
nonexhaustive factors identified by [Community for Creative Non-Violence
v. Reid (1989) 490 U.S. 730, 751-752 (Reid)]. In cases where the
association or work performed does not involve a salary or wage, the
threshold-remuneration test is then expressly considered and applied.”
(Talley, supra. 51 Cal.App.5th at p. 1080.)
Hospice’s motion did not establish that plaintiff was an unpaid volunteer. It
concedes she was employed and was paid a salary, but identifies CHIMI as the employer
who paid her salary. Consequently, this is not a case where the threshold remuneration
test is dispositive. Rather, that threshold test has been satisfied, and the question is
whether plaintiff is an employee of Hospice under the totality of the circumstances test.
Reid identified a number of factors to be considered:
“In determining whether a hired party is an employee under the general
common law of agency, we consider the hiring party’s right to control the
manner and means by which the product is accomplished. Among the other
factors relevant to this inquiry are the skill required; the source of the
instrumentalities and tools; the location of the work; the duration of the
relationship between the parties; whether the hiring party has the right to
assign additional projects to the hired party; the extent of the hired party’s
discretion over when and how long to work; the method of payment; the
hired party’s role in hiring and paying assistants; whether the work is part
of the regular business of the hiring party; whether the hiring party is in
business; the provision of employee benefits; and the tax treatment of the
hired party. [Citation.] No one of these factors is determinative.” (Reid,
supra, 490 U.S. at pp. 751-752, fns. omitted.)
Hospice bore the burden of establishing undisputed facts showing it was not
plaintiff’s employer under this test. The evidence it presented failed to address these
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factors. It largely consisted of conclusory statements of McLeod, the president and chief
executive officer of both Hospice and CHIMI, that CHIMI supervised and controlled
plaintiff’s work, that Hospice did not employ plaintiff, and that CHIMI paid plaintiff’s
salary. We conclude Hospice failed to carry its burden of demonstrating that it was not
plaintiff’s employer.
DISPOSITION
We reverse the judgment and the order granting summary judgment, with
instructions to the trial court to enter a new order denying Hospice’s separate motion for
summary judgment, granting defendants’ joint motion for summary adjudication of
plaintiff’s third, fourth, and fifth causes of action, and denying defendants’ joint motion
for summary adjudication of the remaining causes of action. Plaintiff is entitled to her
costs on appeal.
FRANSON, Acting P. J.
WE CONCUR:
PEÑA, J.
SMITH, J.
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