Judge: Anne Richardson, Case: 22STCV08025, Date: 2023-11-13 Tentative Ruling

Case Number: 22STCV08025    Hearing Date: November 13, 2023    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background

Plaintiff Miracle Davis sues Defendants Trader Joe’s Company and Does 1 through 10 pursuant to a March 4, 2022 Complaint alleging claims of (1) Employment Discrimination in Violation of FEHA (Gov. Code §12940(a)), (2) Interference with Pregnancy Disability Leave Law in Violation of FEHA (Gov. Code §12945(a)), (3) Failure to Provide Reasonable Accommodation in Violation of FEHA (Gov. Code §12940(m), 12945(a)), (4) Failure to Engage in a Timely & Good Faith Interactive Process in Violation of FEHA (Gov. Code §12940(n), 12945(a)), (5) Retaliation in Violation of FEHA (Gov. Code §§12940(h), 12940(m), 12945(a)), (6) Failure to Prevent/Remedy Discrimination and/or Retaliation in Violation of FEHA (Gov. Code §12940(k)), (7) Wrongful Discharge in Violation of Public Policy, and (8) Intentional Infliction of Emotional Distress.

On August 30, 2023, Trader Joe’s filed a motion for summary judgment of the Complaint or, in the alternative, summary adjudication of the Complaint’s eight causes of action and claim for punitive damages. The motion was set for hearing on November 13, 2023.

On October 30, 2023, Plaintiff Davis opposed Trader Joe’s motion.

On November 8, 2023, Trader Joe’s replied to the opposition.

On November 9, 2023, Plaintiff filed objections to evidence presented by Trader Joe’s for the first time in its reply.

Trader Joe’s motion is now before the Court.

Evidentiary Objections

In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review. (Code Civ. Proc., § 437c, subd. (q).) Evidentiary objections not made either in writing or orally shall be deemed waived. (Code Civ. Proc., § 437c, subd. (b).)

Plaintiff’s Opposition Objections to Trader Joe’s Motion Evidence

Objection to McPherson Decl., ¶¶ 19, 24: OVERRULED [Issue Nos. 1-4].

Remaining Objections: Not ruled on as not material to disposition of this motion.

Trader Joe’s Reply Objections to Plaintiff’s Opposition Evidence

Objections: Not ruled on as not material to disposition of this motion.

Plaintiff’s Objections to Trader Joe’s Reply Evidence

Objections: Sustained. The Court does not rely on any evidence submitted for the first time in the Reply brief.

Motion for Summary Judgment or Adjudication

Legal Standard

A motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact for trial or that the moving party is entitled to a judgment as a matter of law. (Code of Civ. Proc., § 437c, subd. (c).) A party may also seek summary adjudication of select causes of action, affirmative defenses, claims for damages, or issues of duty, which may be made by a standalone motion or as an alternative to a motion for summary judgment and proceeds in all procedural respects like a motion for summary judgment. (Code Civ. Proc., § 437c, subds. (f)(1)-(2), (t); see Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848, 1854-1855, questioned by dictum in Bagley v. TRW, Inc. (1999) 73 Cal.App.4th 1092, 1094, fn. 2 [finding that summary adjudication may be granted as to separate factual grounds supporting a claim stated as a single count because the separate grounds state a separate cause of action].) The moving party bears the initial burden of production to make prima facie showing no triable material fact issues. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) This burden on summary judgment or adjudication “is more properly one of persuasion rather than proof, since he must persuade the court that there is no material fact for a reasonable trier of fact to find, and not to prove any such fact to the satisfaction of the court itself as though it were sitting as the trier of fact.” (Id. at p. 850, fn. 11.) If the moving party meets this burden, the burden shifts to the opposing party to make a rebuttal prima facie showing that a triable issue of material fact exists. (Id. at p. 849.) “[I]n ruling on motions for summary judgment courts are to ‘“liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”’ [Citations].” (Cheal v. El Camino Hospital (2014) 223 Cal.App.4th 736, 760.)

I.

Summary Adjudication, Complaint, First Cause of Action [Discrimination in Violation of the FEHA]: GRANTED.

The California Fair Employment and Housing Act (the FEHA) is codified in Government Code sections 12940 et seq.

In analyzing FEHA discrimination claims, California courts apply the burden-shifting formula set forth in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802, under which a plaintiff must first establish a prima facie case of discrimination by showing that (1) he or she was a member of a protected class, (2) he or she was qualified for and performing competently in the position he or she held, (3) he or she suffered an adverse employment action, and (4) conduct by the employer suggesting that it is more likely than not that the adverse employment action was due to a discriminatory motive. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.) It is sufficient to show that one of the employer’s motives was to discriminate, even if the employer had other lawful motives in causing the adverse employment action. (University of Texas Southwestern Medical Center v. Nassar (2013) 570 U.S. 338, 343.) If the plaintiff establishes this prima facie case, the burden shifts to the employer to rebut the presumption of discrimination by offering a legitimate nondiscriminatory reason for the adverse employment action. (Ibid.) If the employer meets this burden, the presumption of discrimination disappears, and the burden shifts back to the plaintiff to produce evidence that the employer’s reasons for the adverse employment action were a mere pretext for discrimination. (Id. at p. 356.)

“On a defense motion for summary judgment against a disparate treatment claim, the defendant must show either that one of these elements cannot be established or that there were one or more legitimate, nondiscriminatory reasons underlying the adverse employment action.” (Jones v. Dept. of Corrections & Rehabilitation (2007) 152 Cal.App.4th 1367, 1379.)

The Complaint’s first cause of action alleges that “Defendant engaged in unlawful employment practices in violation of FEHA by terminating Plaintiff from her position based on Plaintiff’s sex, pregnancy, race, color, disability (including a perceived disability), and/or for engaging in protected activities.” (Complaint, ¶ 29.)

I.A. Issue Nos. 1-4: Pregnancy, Disability, Sex, and Race Discrimination

Trader Joe’s argues that even if a prima facie discrimination claim was made by Plaintiff, Trader Joe’s can show that no triable issues of material fact exist as to whether her termination was based on a legitimate, nondiscriminatory business reason. Trader Joe’s presents evidence to show that during an altercation, Plaintiff raised her voice to a customer, telling him to “act like a man,” and labeling the man as “privileged,” conduct which the customer complained to Trader Joe’s about, and which a Trader Joe’s investigation showed was violative of Trader Joe’s policies of which Plaintiff was aware, and which served as a basis for her termination. (Mot., p. 16, citing UMF Nos. 7-8, 13, 20, 22, 30-32.)

UMF No. 7 cites evidence showing that Plaintiff conceded that she was aware of expectations of a Trader Joe’s Crew Member like herself, which included creating a friendly shopping experience for customers. (Mot., Sep. St., UMF No. 7, citing Mot., Comp. Evid., Davoudian Decl., Ex. A, Davis Deposition, 37:1-38:14 & Sub-Ex. 3 [Crew Member job description] and citing Mot., Comp. Evid., McPherson Decl., ¶ 7.)

UMF No. 8 cites Plaintiff’s deposition to show that she was aware that she was required to always treat customers with courtesy regardless of how customers behaved. (Mot., Sep. St., UMF No. 8, citing Mot., Comp. Evid., Davoudian Decl., Ex. A, Davis Deposition, 123:23-124:1, 191:21-192:4.)

UMF No. 20 cites Plaintiff’s deposition to show that she testified to raising her voice to a customer, telling the customer to “act like a man,” and stating, as the male customer walked off, “oh, wow[,] … the privilege.” (Mot., Sep. St., UMF No. 20, citing Mot., Comp. Evid., Davoudian Decl., Ex. A, Davis Deposition, 68:2-69:25, 75:3-19 [admitting to quoted statements], 96:13-16 [admitting to raising her voice].)

UMF No. 22 cites Plaintiff’s deposition to show that she testified that she was not able to meet Trader Joe’s customer service standards when interacting with the customer. (Mot., Sep. St., UMF No. 22, citing Mot., Comp. Evid., Davoudian Decl., Ex. A, Davis Deposition, 85:16-20.)

UMF Nos. 31-32 cites to the declaration of Plaintiff’s former store manager (Captain) and supervisor, Pamela McPherson, which shows that Ms. McPherson conducted an investigation into the events of February 6, 2021, determined that Plaintiff’s conduct violated Trader Joe’s Crew Member Performance and Conduct Policy and its Company Values Guide, and, together with Vice President Rachel Peterson, decided to terminate Plaintiff’s employment for failure to execute her duties professionally and in compliance with Trader Joe’s values and policies. (Mot., Sep. St., UMF Nos. 30-31, citing Mot., Comp. Evid., ¶¶ 19-24, Exs. L-M [copies of above policies], N [copy of termination letter, citing events of January 6, 2021 and past performance reviews noting unprofessional conduct towards crew and customers].)

The Court finds that this evidence carries Trader Joe’s burden on summary adjudication as to the first cause of action. If the discriminatory conduct alleged in the Complaint is Plaintiff’s termination (Complaint, ¶ 29) and if that termination occurred because Plaintiff treated a customer in a manner violative of Trader Joe’s corporate policies, then Trader Joe’s would have a legitimate, nondiscriminatory reason to terminate her employment. “If nondiscriminatory, the employer’s reasons need not necessarily have been wise or correct. While the objective soundness of an employer’s proffered reasons supports their credibility, the ultimate issue is simply whether the employer acted with a motive to discriminate illegally. . . . Examples of legitimate reasons are a failure to meet performance standards . . . or a loss of confidence in an employee.” (Serri v. Sana Clara University (2014) 226 Cal.App.4th 830, 861 [cleaned up].)

In opposition, Plaintiff argues that she can raise triable issues as discrimination/retaliation and pretextual termination of her employment. (Opp’n, pp. 10-16.)

“If the employer has met its burden by showing a legitimate reason for its conduct, the employee must demonstrate a triable issue by producing substantial evidence that the employer’s stated reasons were untrue or pretextual, or that the employer acted with a discriminatory animus, such that a reasonable trier of fact could conclude that the employer engaged in intentional discrimination or other unlawful action. [Citations.] ‘[S]peculation cannot be regarded as substantial responsive evidence.’ [Citation.]” (Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1048.)

Plaintiff argues that Pamela McPherson held animus against Plaintiff based on Plaintiff lodging a complaint that resulted in the transfer of another store manager just months before Plaintiff’s own termination, Plaintiff generally making protected characteristic complaints based on a prior disability, and Plaintiff’s race. Plaintiff also argues that Pamela McPherson’s pretext in deciding to terminate is shown by the inconsistencies in the “investigation” that led to Plaintiff’s extermination, where the investigation was incomplete, inaccurate (failed to capture Plaintiff’s statements), improperly failed to consult surveillance footage, did not involve an interview of the aggrieved customer, and ignored Plaintiff’s requests for reconsideration of the termination decision. (Opp’n, pp. 13-14, citing Opp’n, Sep. St., Additional Material Facts (AMF) Nos. 9-25, 27, 30, 31, 37-41.)

Plaintiff also argues that pretext is shown by Trader Joe’s treating non-black employee’s differently, e.g., other Trader Joe’s employees have had physical and verbal altercations with customers, and they were not terminated. (Opp’n, p. 14, citing Opp’n, Sep. St., AMF No. 29.)

Plaintiff alternately argues that her termination was the result of harassment and discrimination that she experienced at Trader Joe’s in or around October 2017, when she injured her back at work, continued through her pregnancy leave in 2018 and after her return to work, and picked back up in 2020 prior to her termination, and that even if some of the past discrimination is no longer actionable, it is relevant to a question of a current practice of discrimination. (Opp’n, pp. 14-15, citing Opp’n, Sep. St., AMF Nos. 9-25, 27, 30, 31, 37-41.)

Last, Plaintiff argues that the proximity in time between her termination and the above described conduct shows pretext. (Opp’n, pp. 15-16, citing Opp’n, Sep. St., AMF Nos., AMF Nos. 9-25, 27, 30, 31, 37-41.)

In reply, Trader Joe’s argues that Plaintiff’s conduct on February 6, 2021 was sufficient grounds for her termination, undercutting pretext. (Reply, p. 7, citing Mot., Sep. St., UMF No. 20.) Trader Joe’s also argues that it did interview the customer involved in the events of February 6, 2021. (Reply, p. 7, citing Mot., Sep. St., UMF Nos. 21, 28.) Trader Joe’s argues that the lack of access to security footage is a red herring because Pamela McPherson did not have access to that footage and instead relied on Plaintiff’s own statements in making the termination decision. (Reply, p. 8, citing Opp’n, Comp. Evid., Ex. 16, McPherson Deposition, 86:9-87:8.) Trader Joe’s takes the position that Plaintiff is simply taking issue with Pamela McPherson’s determination that Plaintiff was the aggressor in the February 6, 2021 incident. (Reply, p. 8, citing Mot., UMF No. 32.)

Elsewhere, Trader Joe’s points out that Plaintiff has specifically testified that none of the decision makers ever made negative comments to her because of her race, gender or pregnancy (Mot., p. 5, citing Mot., Sep. St., UMFs 29, 33, 37, 38, 39), that Plaintiff did not have any problems with Pamela McPherson, did not have any reason to believe that Pamela McPherson disliked Plaintiff, wanted to get rid of Plaintiff, or wanted to get back at Plaintiff for something Plaintiff had done (Mot., p. 5, Sep. St., UMF No. 33), and that Plaintiff never reported any instances of gender, race or pregnancy discrimination to HR, nor did she ever complain of any discrimination in the workplace to Pamela McPherson or Rachel Peterson (Reply, pp. 6-7, citing Mot., Sep. St., UMF No 36). Last, Trader Joe’s points out that Mate Charles Villalobos about whom Plaintiff is alleged to have made a complaint was not even involved in the termination decision. (Reply, p. 7, citing Mot., Sep. St., UMF 31.)

Without reaching the merit of any objections to Plaintiff’s evidence referenced above, the Court determines that even if the Court accepted Plaintiff’s evidence, she fails to raise triable issues of material fact as to pretext in Trader Joe’s decision to terminate her employment.

I.A.1. Protected Activity

Plaintiff argues that her termination was pretextual and actually based on Plaintiff making protected activity complaints to human resources (HR) or to Pamela McPherson and/or Rachel Peterson, i.e., the individuals who participated in the decision to terminate Plaintiff’s employment with Trader Joes. (See Opp’n, p. 6 [“The decision to terminate Ms. Davis was made by Pamela McPherson and Rachel Peterson. [A]MF [Nos.] 19-25, 31, 37.”].)

The opposition cites various AMFs for the purpose of showing protected complaints by Plaintiff to HR or management. (Opp’n, p. 11, citing Opp’n, Sep. St., AMF Nos. 9-25.) Of these, only AMF Nos. 9 and 14 to 17 make references to alleged complaints by Plaintiff to Trader Joe’s HR or to Trader Joe’s employees.

The Court finds that Plaintiff’s cited evidence does not support her position.

AMF No. 9 is supported by Plaintiff’s declaration and deposition to show a complaint to HR in 2017 relating to condescending conduct by Plaintiff’s co-workers, which Plaintiff conclusorily ties to race or gender. (Opp’n, Comp. Evid., Ex. 11, Davis Decl., ¶ 9 & Ex. 15, Davis Deposition, 112:19-115:17, cited in Opp’n, Sep. St., AMF No. 9.) However, the cited portions of Plaintiff’s declaration and deposition (1) only state conclusorily the reason for the animus—e.g., race or gender discrimination—(2) do not show that Plaintiff made her reports to Pamela McPherson or Rachel Peterson, and (3) unfavorably show testimony by Plaintiff to the effect that she only once contacted HR regarding violations of Trader Joe’s policies (in 2017 to report this incident), which undercuts Plaintiff’s declaration insofar as it states that Plaintiff made other complaints to HR. (See ibid.; see also Benavidez v. San Jose Police Dept. (1999) 71 Cal.App.4th 853, 860 (Benavidez) [“In determining whether any triable issue of material fact exists, the trial court may, in its discretion, give great weight to admissions made in deposition and disregard contradictory and self-serving affidavits of the party”]; Sinai Memorial Chapel v. Dudler (1991) 231 Cal.App.3d 190, 196-197 (Sinai Memorial) [“An issue of fact can only be created by a conflict of evidence. It is not created by ‘speculation, conjecture, imagination or guess work.’ [Citation.] Further, an issue of fact is not raised by ‘cryptic, broadly phrased, and conclusory assertions’ [citation], or mere possibilities [citation]. ‘Thus, while the court in determining a motion for summary judgment does not ‘try’ the case, the court is bound to consider the competency of the evidence presented.’ [Citation].”])

AMF Nos. 14-16 deal with complaints by Plaintiff to HR (and to Pamela McPherson at AMF No. 16) regarding workplace safety based on increased altercations with customers and staff and even one fight between a staff member and a customer. However, AMF Nos. 14-15 are only supported by Plaintiff’s declaration, which is undercut by Plaintiff’s deposition insofar as Plaintiff’s testimony admits that she only ever made a single complaint in 2017 to HR relating to violation of Trader Joe’s policies. (Compare Opp’n, Sep., St. AMF Nos. 14-15, citing Opp’n, Comp. Evid., Ex 11, Davis Decl., ¶¶ 14-15, with Opp’n, Comp. Evid., Ex 15, Davis Deposition, 112:19-115:17; see Benavidez, supra, 71 Cal.App.4th at p. 860.) Otherwise stated, to the extent that Plaintiff’s declaration is used to support the position that she made complaints of workplace safety to HR in 2020, that declaration is contradicted by Plaintiff’s deposition testimony to the effect that she only once made a complaint to HR relating to violation of Trader Joe’s corporate policies, which took place in 2017.

AMF No. 16 is supported by Plaintiff’s declaration and the declaration of former coworker Loren Vaca, and only involves the existence of a report to Pamela McPherson of workplace safety based on angry customers. (Opp’n, Comp. Evid., Ex. 11, Davis Decl., ¶ 16 [safety complaint to Pamela McPherson] & Ex. 14, Vaca Decl., ¶ 10 [conclusorily stating that Plaintiff’s safety complaints were ignored based on Plaintiff’s race].)

AMF No. 17 cites Plaintiff’s declaration and nothing else to support a report by Plaintiff to Pamela McPherson in 2020 relating to store manager Charles Villalobos singling out and yelling at Plaintiff and commenting that Plaintiff abused her child. (Opp’n, Sep., St. AMF No. 17, citing Opp’n, Comp. Evid., Ex 11, Davis Decl., ¶ 17.) To the extent that AMF No. 17 intends to show discrimination, that showing is undercut by Plaintiff’s own testimony, cited in the moving papers, to the effect that Plaintiff never made any reports of discrimination based on race, gender, or pregnancy to HR and never made any report of any discrimination at all to McPherson or Peterson. (Mot., Comp. Evid., Davoudian Decl., Ex. A, Davis Deposition, 299:21-300:14, cited in Mot., Sep. St., UMF No. 36.)

To summarize, the Court sees two important shortcomings in this evidence on summary adjudication.

First, Plaintiff provided her own deposition testimony showing that she claimed that she only ever made a single complaint to HR and that the complaint was made in 2017. (Opp’n, Comp. Evid., Ex. 15, Davis Deposition, 112:19-115:1 [In response to Plaintiff’s counsel’s question of whether “[Plaintiff] ever report[ed] to Trader Joe’s[] any violations of company policies,” responding, “I’ve contacted HR once; yes”].) This undercuts Plaintiff’s declaration as to complaints in 2020 relating to workplace safety and Charles Villalobos because if Plaintiff has testified that she only made a single complaint to HR and that took place in 2017, the Court cannot credit her declaration for the purpose of showing that she made workplace safety (AMF Nos. 14-16) and harassment (AMF No. 17) complaints to HR in 2020. (Benavidez, supra, 71 Cal.App.4th 853 at p. 860) (Only a report to Pamela McPherson in AMF No. 17 would fall outside of Benavidez because Pamela McPherson (as Captain) was the store manager, not HR, but animus as a result of the Villalobos complaint is discussed and undercut in Section I.A.2. below.)

Second, Plaintiff testified that she never made any reports of discrimination based on race, gender, or pregnancy to HR and never made any report of any discrimination at all to McPherson or Peterson. (Mot., Comp. Evid., Davoudian Decl., Ex. A, Davis Deposition, 299:21-300:14, cited in Mot., Sep. St., UMF No. 36.) This also undercuts Plaintiff’s declaration insofar as it states that the 2020 complaints of workplace safety and harassment of Plaintiff by Villalobos were reported as involving discrimination. (Benavidez, supra, 71 Cal.App.4th 853 at p. 860.)

I.A.2. Pretext Based on Animus Arising from Villalobos Complaint

Plaintiff also argues that Trader Joe’s pretextual termination is shown by Pamela McPherson’s animus against Plaintiff based on Plaintiff’s 2020 complaint against Charles Villalobos. (Opp’n, pp. 11, 13.)  More specifically, the opposition argues that McPherson buried the Villalobos complaint in 2020 and later, along with Rachel Peterson, retaliated against Plaintiff by terminating Plaintiff’s employment in 2021 as a result of Villalobos being transferred and the transfer upsetting Pamela McPherson. (Opp’n, pp. 11 & 13, citing Opp’n, Sep. St., AMF No. 17.)

However, AMF No. 17 relies on Plaintiff’s declaration alone, which is undercut by her testimony that she did not believe that Pamela McPherson held anything against Plaintiff or wanted to get back at Plaintiff for something that Plaintiff did. (Mot., Comp. Evid., Davoudian Decl., Ex. A, Davis Deposition, 43:24-44:4, 44:17-45:1, cited in Mot., Sep. St., UMF No. 33.) As a result, Plaintiff’s declaration as to Pamela McPherson holding animus against Plaintiff because of the Villalobos transfer is undercut by Plaintiff’s deposition testimony to the effect that Pamela McPherson held nothing against Plaintiff. (Benavidez, supra, 71 Cal.App.4th 853 at p. 860.)

I.A.3. Pretext Based on Other Animus Against Plaintiff

The same reasoning and evidence discussed in Section I.A.2. undercuts the opposition argument that a pretextual termination is shown by racial or other animus held by Pamela McPherson against Plaintiff. (See Opp’n, p. 13.)

Moreover, the opposition focuses on Pamela McPherson’s animus against Plaintiff without properly elaborating on animus by Rachel Peterson, thus undercutting pretext as to Rachel Peterson. (Opp’n, pp. 6, 9, 11, 13, 19, 20 [pages mentioning Rachel Peterson, arguing mostly that Peterson did not change her mind about termination after Plaintiff appealed the same (p. 9, 11, 13)].)

I.A.4. Pretext Based on Failure to Investigate or Inconsistencies in Investigation

Plaintiff also advances the argument that the failure to investigate or inconsistencies in investigation of the events of February 6, 2021 show discrimination or pretext. (Opp’n, pp. 11, 14.)

“In order to raise an issue as to the employer’s credibility, the employee must set forth specific facts demonstrating ‘“such weaknesses, implausibilities, inconsistencies, incoherences, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them ‘unworthy of credence.’”’ [Citation.]” (Cucuzza, supra, 104 Cal.App.4th at p. 1048.)

The Court initially notes that any argument by Plaintiff that Pamela McPherson was biased in her investigation of the events of February 6, 2021 is undercut by Plaintiff’s own testimony to the effect that she did not believe that Pamela McPherson held anything against Plaintiff or wanted to get back at Plaintiff for something that Plaintiff did. (Mot., Comp. Evid., Davoudian Decl., Ex. A, Davis Deposition, 43:24-44:4, 44:17-45:1, cited in Mot., Sep. St., UMF No. 33.)

Regarding whether a triable issues of material fact exists as to pretext based on a failure to properly investigate the events of February 6, 2021, the Court finds no such issues are raised by Plaintiff’s evidence.

Plaintiff cites AMF Nos. 9-25 and 31 for the purpose of showing an incomplete and inaccurate investigation, including notes that did not capture Plaintiff’s side of the story. (Opp’n, p. 14, citing Opp’n, Sep. St., AMF Nos. 9-25, 31.) The only AMFs that deal with the investigation are AMF Nos. 24, 25, and 31.

AMF No. 24 cites Plaintiff’s declaration to show that Plaintiff appealed her termination, while AMF No. 25 cites Plaintiff’s declaration to refers to notes by Pamela McPherson that left out portions of Plaintiff’s side of the story relating to the events of February 6, 2021, as well for the positions that McPherson and Peterson were not present for the February 6, 2021 incident and that no employee witness saw the entire altercation. (Opp’n, Comp. Evid., Ex. 11, Davis Decl., ¶¶ 24-25, cited in Opp’n, Sep. St., AMF Nos. 24-25; see also Opp’n, Comp. Evid., Ex. 7, McPherson Notes.)

Plaintiff provides copies of McPherson’s notes, which show McPherson recorded (1) Plaintiff’s admission to saying to the customer, “[b]e a man” and “Ohhh the privilege[;] [y]ou’re so privileged” and (2) Plaintiff’s description of the customer as so tall as to tower over Plaintiff, aggressive in staring at Plaintiff, and mad looking, at least implying a fearful situation for Plaintiff, who was known to be pregnant by McPherson. (Opp’n, Comp. Evid., Ex. 7, McPherson Notes; Opp’n, Sep. St. 37 [McPherson learning of pregnancy around December 2020 and January 2021].) The notes are consistent with the position Plaintiff now presents before the Court, which undercuts Plaintiff’s inconsistency argument in the opposition because McPherson appears, by Plaintiff’s own evidence, to have had knowledge of Plaintiff’s conduct and the customer’s conduct, from Plaintiff’s own version of events. Plaintiff also provides other evidence showing that Plaintiff admitted to her part in the events of February 6, 2021 to Pamela McPherson, again undercutting inconsistency. (Opp’n, Comp. Evid., Ex. 16, McPherson Deposition, 86:22-25, 130:14-17 [did not rely on other possible evidence in termination decision (footage) because Plaintiff had admitted to events]; cf. Mot., Comp. Evid., Davoudian Decl., Ex. A, Davis Deposition, 68:2-69:25, 75:3-19 [admitting to telling customer to “act like a man” and stating, as customer walked away, “oh, wow[,] … the privilege”], 96:13-16 [admitting to raising her voice].)

Plaintiff does not show inconsistency with the evidence cited in these AMFs.

AMF No. 31 cites to McPherson’s deposition and to Plaintiff’s declaration for the purpose of showing that the customer in the February 6, 2021 incident never made a formal complaint, that Trader Joe’s did not obtain the customer’s name or number, and that Trader Joe’s never reviewed surveillance footage, making the investigation incomplete. (Opp’n, Sep. St., AMF No. 31.)

However, a review of the evidence cited in AMF No. 31 does not raise a triable issue of material fact as to pretext because that evidence only shows (1) McPherson’s failure to contact the customer directly and (2) McPherson’s failure to review video footage of the February 6, 2021 incident because McPherson already had Plaintiff Davis’s admission to her part in the events of February 6, 2021. (Opp’n, Comp. Evid., Ex. 16, McPherson Deposition, 75:7-79:8 [none of the employee witnesses to the incident saw the entire incident, only a portions thereof, McPherson (rather than Trader Joe’s generally) did not have in her possession a statement from the customer and did not speak to the customer, with McPherson unable to confirm whether some other Trader Joe’s employee got the customer’s phone number], 86:9-87:8 [surveillance footage was not reviewed by McPherson because she was relying on Plaintiff’s own admissions relating to the events of February 6, 2021], 130:4-23 [customer did not lodge complaint, and video was not reviewed because Plaintiff admitted to the details of the incident]; cf. Mot., Sep. St., UMF No. 20, citing Mot., Comp. Evid., Davoudian Decl., Ex. A, Davis Deposition, 68:2-69:25, 75:3-19 [admitting to telling customer, at arm’s distance, to “act like a man” and stating, as customer walked away, “oh, wow[,] … the privilege”], 96:13-16 [admitting to raising her voice]; Mot., Sep. St., UMF Nos. 30-31, citing Mot., Comp. Evid., McPherson Decl., ¶¶ 19-24 [McPherson determines that Plaintiff’s conduct violated Trader Joe’s policies], Exs. L-M [copies of policies]; Mot., Comp. Evid., McPherson Decl., Exs. H-J [written statements from employee witnesses to events of February 6, 2021].)

If the decision to terminate was derived from Plaintiff’s own admissions and supporting accounts from employee witnesses to parts of the events of February 6, 2021, the Court is unclear how McPherson’s failure to review the footage or directly communicate with the customer raised triable issues as to the completeness of the investigation. With AMF No. 31, Plaintiff essentially argues that the investigation could not have been complete without Pamela McPherson reviewing the video footage of the events of February 6, 2021 and/or contacting the customer directly. However, another Trader Joe’s employee spoke with the customer and relayed that information to Pamela McPherson, which undercuts the need for direct contact between McPherson and the customer to round out the investigation. (Mot., Sep. St., UMF No. 21, citing Mot., Comp. Evid., Davoudian Decl., Ex. A, Davis Deposition, 60:8-12; 67:12-15 [Plaintiff testifying to customer making complaint to Mate Nicole Bauman]; Mot., Sep. St, UMF No. 28, citing Mot. Comp. Evid., McPherson Decl., Ex. J [written statement from Bauman to McPherson]; cf. Opp’n, Comp. Evid., Ex. 16, McPherson Deposition, 77:9-22 [McPherson testifying that she did not speak with customer and did not get his name but qualifying testimony by stating that McPherson did not know whether someone else got the customer’s number].) Moreover, a failure to review the video does not raise a triable issue of pretext because the accounts of February 6, 2021 are in general agreement, even by Plaintiff, that she made the statements that the evidence shows McPherson claims to have relied on to terminate Plaintiff’s employment with Trader Joe’s. (Cf. Opp’n, Sep. St., AMF No. 37 [citing to Plaintiff’s declaration and McPherson’s deposition to show that video footage was destroyed, but review of this evidence at the cited portions does not stand for this proposition]; see Reply, Sep. St., Response to AMF No. 37 [noting that McPherson deposition testimony does not stand for proposition that footage was destroyed, but rather, that McPherson only testified to not having access to the footage].)

The alleged inconsistencies in AMF Nos. 21 and 37-38 also fail to raise triable issues of pretext for the same reasons: Plaintiff’s deposition shows she admitted to the “act like a man” and “privilege” comments, which were confirmed, in part, by witness statements from other employees, showing a consistency in the grounds for Plaintiff’s termination.

The Court thus concludes that Plaintiff does not raise triable issues of pretext through inconsistencies in the termination investigation evidence cited in these AMFs.

I.A.5. Pretext Based on Events Leading Up to Termination

Plaintiff argues that the events leading up to her termination raise triable issues as to pretextual termination. (Opp’n, p. 11, citing Opp’n, Sep. St., AMF Nos. 19-25.)

The Court finds that Plaintiff’s cited evidence does not support her position.

AMF Nos. 19 cites Plaintiff’s declaration for her account of the events of February 6, 2021. (Opp’n, Sep. St., AMF No. 19, citing to Opp’n, Comp. Evid., Ex. 11, Davis Decl., ¶ 19.) AMF No. 20 cites Plaintiff’s declaration for her account of what she experienced that day. (Opp’n, Sep. St., AMF No. 20, citing to Opp’n, Comp. Evid., Ex. 11, Davis Decl., ¶ 20.) AMF No. 21 cites Plaintiff’s declaration for her account of her termination, the letter terminating her, and alleged inaccuracies therein. (Opp’n, Sep. St., AMF No. 21, citing to Opp’n, Comp. Evid., Ex. 11, Davis Decl., ¶ 21.) AMF No. 22 and 23 cite Plaintiff’s declaration for her account of her recent positive job reviews. (Opp’n, Sep. St., AMF Nos. 22-23, citing to Opp’n, Comp. Evid., Ex. 11, Davis Decl., ¶¶ 22-23.)

AMF Nos. 24 and 25 were discussed above in Section I.A.4. and were found to not raise triable issues of material fact as to pretext.

The Court finds that the evidence referred to in AMF Nos. 19-25—namely Plaintiff’s declaration—does not raise triable issues as to pretext. Though the Court sympathizes with Plaintiff’s experience with aggression, fear (for herself and her baby), and sadness on February 6, 2021, those events, Plaintiff’s positive performance reviews (which Trader Joe’s argues also include negative comments), Plaintiff’s appeal, and Plaintiff’s investigation, as shown by this evidence, do not raise triable issues of pretext. Plaintiff’s evidence simply relates her interpretation of the events between February 6, 2021 and her termination, without showing a specific animus based on pregnancy, disability, sex, or race.

I.A.6. Pretext Based on Failure to Properly Consider Plaintiff’s Appeal

Plaintiff also argues, if indirectly, that Trader Joe’s failure to change its decision as to termination after Plaintiff appealed the termination shows triable issues of pretext. (Opp’n, p. 11, citing Opp’n, Sep. St., AMF No. 24; Opp’n, p. 13, citing Opp’n, Sep. St., AMF Nos. 9, 25, 27, 30, 31, 37-41; Opp’n, p. 14, citing AMF Nos. 19-25; see Opp’n, Comp. Evid., Ex. 4, Termination Appeal Letter.)

Of the cited AMFs, only Nos. 24 and 41 discuss the appeal. (See Opp’n, Sep. St., AMF Nos. 9 [events in 2017], 19-25 [February 6, 2021 event through Plaintiff’s appeal of termination], 27 [upcoming COVID-bonus, anticipated pregnancy leave, and needing accommodations (with no detail as to type of accommodations)], 30 [no progressive discipline punishment policy at Trader Joe’s], 31 [customer and footage], 37 and 38 [alleged inconsistencies in employee witness statements, communications with customer, destruction of camera footage (not supported), and basis for termination (events of February 6, 2021 or that and prior performance)], 39-40 [citing declaration of Loren Vaca, former coworker, to support disparate treatment and conditions at Trader Joe’s during pandemic].)

The Court finds that Plaintiff’s cited evidence does not support her position.

AMF No. 24 cites Plaintiff’s declaration to explain her account of how she received and why she disagreed with/appealed her termination letter, conclusorily ending with an assertion that her appeal was “ignored.” (Sinai Memorial, supra, 231 Cal.App.3d at pp. 196-197; accord, Moua v. Pittullo, Howington, Barker, Abernathy (2014) 228 Cal.App.4th 107, 116-117.)

AMF No. 41 cites testimony from Pamela McPherson, Michele Genesta, and Rachel Peterson in support of pretext. The deposition of Pamela McPherson is cited to show that Pamela McPherson did not read Plaintiff’s appeal letter but, if she had, she would have come to the same determination as to grounds for termination. (Opp’n, Sep. St., AMF No. 41, citing Opp’n, Comp. Evid., Ex. 16, McPherson Deposition, 134:2-17, 181:3-14.) The deposition of Rachel Peterson is cited to show that Rachel Peterson read the appeal letter by Plaintiff and did not come to a different conclusion as to termination of employment, and that Peterson cited reasons for Plaintiff’s termination that were not confirmed in writing or made in any statement to Plaintiff. (Opp’n, Sep. St., AMF No. 41, citing Opp’n, Comp. Evid., Ex. 18, Peterson Deposition, 46:6-24, 115:25-116:11, 117:1-22 [letter], 126:7-128:3 [reasons for termination, alleged new reasons].) The deposition of Michele Genesta—an HR representative at Trader Joe’s (Opp’n, p. 7, citing Opp’n, Sep. St., AMF No. 38; Reply, p. 6 [“… Human Resources representative Michele Genesta testified …”])—is cited to show that Genesta opined, after the fact, that nothing in the appeal letter warranted a further review or investigation. (Opp’n, Sep. St., AMF No. 41, citing Opp’n, Comp. Evid., Ex. 17, Genesta Deposition, 143:15-24, 149:16-150:10.)

The Court finds that no triable issue of pretext is raised by this evidence. The evidence essentially involves Trader Joe’s employees confirming their opinion that the record that Pamela McPherson and Rachel Peterson reviewed to support Plaintiff’s termination properly supported that determination, and in Genesta’s and Peterson’s case, that the contents of the appeal letter did not merit a different conclusion.

The portion of Rachel Peterson’s deposition cited to show that Peterson testified to reasons justifying Plaintiff’s termination that were never made in writing or a statement to Plaintiff does not show that proposition. Rachel Peterson testified to having knowledge of a report that Plaintiff raised her voice at the customer, that Plaintiff was terminated because she engaged the customer in the second interaction (the “be a man” and “privileged” comments by Plaintiff) and said the words “oh, the privilege” directly to the customer, with no ability to confirm if another person heard the “oh, the privilege” comment. (Opp’n, Comp. Evid., Ex. 18, Peterson Deposition, 126:7-128:3.) Such testimony does not show a triable issue as to pretext because the evidence agrees with Plaintiff’s own testimony as to her conduct (Mot., Comp. Evid., Davoudian Decl., Ex. A, Davis Deposition, 68:2-69:25, 75:3-19 [admitting to telling customer, at arm’s distance, to “act like a man” and stating, as customer walked away, “oh, wow[,] … the privilege”], 96:13-16 [admitting to raising her voice]) and agrees with Plaintiff’s termination letter (Opp’n, Comp. Evid., Ex. 6, Termination Letter [termination based on reports of poor attitude and unprofessional behavior towards crew and customers, as well as the events of February 6, 2021 and the comments made to the customer regarding being a man and privilege as the customer was leaving the store].) The essence of the testimony and termination letter are the same: the conduct to which Plaintiff admitted is, among past unprofessional conduct, the basis for the termination of employment, undercutting Plaintiff’s argument of new reasons for termination.

I.A.7. Pretext Based on COVID Bonus or Upcoming Disability

Though not mentioned in the arguments section of the opposition (Opp’n, pp. 10-20), the opposition implies that two other factors played into Plaintiff’s termination: the looming COVID bonus Trader Joe’s was due to pay Plaintiff shortly after her termination; and Plaintiff notifying Trader Joe’s of her upcoming disability. (Opp’n, p. 9, citing Opp’n, Sep. St., AMF Nos. 27, 36.)

The Court finds that Plaintiff’s cited evidence does not support her position.

AMF No. 27 cites Plaintiff’s declaration and the Vaca (former coworker) declaration. (Opp’n, Comp. Evid., Ex. 11, Davis Decl., ¶ 27 & Ex. 14, Vaca Decl., ¶ 11, cited in Opp’n, Sep. St., AMF No. 27.) Plaintiff’s declaration states that Trader Joe’s was due to pay her an unspecified amount of money as a COVID bonus a few weeks after she was terminated, but the causal connection is conclusory at best, for which reason this evidence raises no triable issue of pretext. (Opp’n, Comp. Evid., Ex. 11, Davis Decl., ¶ 27; see Sinai Memorial, supra, 231 Cal.App.3d at pp. 196-197; accord. Moua, supra, 228 Cal.App.4th at pp. 116-117.) Plaintiff’s declaration also states that after informing Pamela McPherson of Plaintiff’s pregnancy, Plaintiff discussed an anticipated need for pregnancy disability leave to commence in eight weeks and “mentioned needing an accommodation while [she] was working.” (Opp’n, Comp. Evid., Ex. 11, Davis Decl., ¶ 27.) However, this declaration evidence is contradicted by Plaintiff’s deposition testimony.

AMF No. 36 cites Plaintiff’s own deposition for the purpose of showing that Plaintiff informed Pamela McPherson of the need for upcoming pregnancy disability and accommodations while working. (Opp’n, Sep. St., AMF No. 36, citing Opp’n, Comp. Evid., Ex. 15, Davis Deposition, 155:2-22.) However, the evidence shows that Plaintiff testified to telling Pamela McPherson of her pregnancy at the end of 2020 and to discussing job modifications with McPherson, including leave (changing the schedule) to “accommodate [Plaintiff] and … work around certain [unspecified] things,” which gave Plaintiff the impression that “[Pamela McPherson knew [that Plaintiff] was going to have to take time off and probably do lighter work.” (Opp’n, Comp. Evid., Ex. 15, Davis Deposition, 155:2-22 [emphasis on “impression”].) To the extent that this deposition testimony conflicts with Plaintiff’s declaration cited in AMF No. 27, this deposition evidence would take precedence and shows that Plaintiff speculates as to whether Pamela McPherson knew or suspected that Plaintiff might in the future need accommodations. (See Benavidez, supra, 71 Cal.App.4th at p. 860.)

I.A.8. Pretext Based on Disparate Treatment

“‘Under a disparate treatment theory [as opposed to a disparate impact approach], discrimination occurs “when the employer ‘treats some people less favorably than others because of their [disability or other statutorily prohibited characteristic or trait].’ …” … “[T]he plaintiff must prove the ultimate fact that the defendant engaged in intentional discrimination …. An employer will be liable for intentional discrimination if it is shown that its employment decision was premised upon an illegitimate criterion.” …’” (Arteaga v. Brinks, Inc. (2008) 163 Cal.App.4th 327, 353 (Arteaga).)

Plaintiff provides arguments and evidence to show that Trader Joe’s subjected Plaintiff to disparate treatment based on race when it terminated her under circumstances where other employees who violated Trader Joe’s policies in like or worse circumstances were not terminated. (Opp’n, p. 12, citing AMF Nos. 9, 25, 27, 30, 31, 37-41 & p. 14, citing AMF No. 29.)

Of the AMFs cited, only No. 29 deals with disparate treatment based on a protected characteristic (race). (Mot., Sep. St., AMF Nos. 9 [Plaintiff’s deposition and declaration showing 2017 complaint of racial and gender discrimination by co-workers, which only conclusorily claims animus, as discussed in Section I.A.1 supra], 25 [Plaintiff’s declaration for purpose of showing McPherson did not properly capture Plaintiff’s version of events, that none of the decisionmakers were witnesses to the events of February 26, 2021, and that no employee witnesses saw entire incident], 27 [evidence to show discrimination in terminating Plaintiff’s employment before COVID bonus and after Plaintiff informed Pamela McPherson of pregnancy and accommodations need, i.e., not relating to race], 30 [whether Trader Joe’s has progressive punishment policy, not directly tied to race], 31 [investigation into events of February 6, 2021], 37 and 38 [alleged inconsistencies in employee witness statements, communications with customer, destruction of camera footage (not supported), and basis for termination (events of February 6, 2021 or that and prior performance)], 39-40 [citing declaration of Loren Vaca, former coworker, to support disparate treatment and conditions at Trader Joe’s during pandemic].)

The Court finds that Plaintiff’s cited evidence does not support her position.

AMF No. 29 cites Plaintiff’s deposition for the purpose of showing that “[o]ther Trader Joe’s employees have had physical and verbal altercations with customers, and they were not terminated.” (Opp’n, Sep. St., AMF No. 29, citing Opp’n, Comp. Evid., Ex. 15, Davis Deposition, 124:8-125:11.) However, the evidence to which Plaintiff cites is Plaintiff’s deposition, in which Plaintiff testified that the Mate—Josh Wynn—apparently fought the customer in question because the customer was drunk and harassing a female manager, i.e., possible defense of another. (Opp’n, Comp. Evid., Ex. 15, Davis Deposition, 124:8-125:11.) No such contention is made here, and thus the conduct alleged is different.

The Court also notes that AMF No. 15, as stated, is intended to support disparate treatment. AMF No. 15 cites to Plaintiff’s declaration to reference the same fight in the parking lot, as well as other instances where “numerous crew members were involved in verbal and physical altercations with customers” and “[t]hose employees were always protected and were not written up or reprimanded.” (Opp’n, Sep. St., AMF No. 15, citing Opp’n, Comp. Evid., Ex. 11, Davis Decl., ¶ 15.) However, the description of the Josh Wynn fight in Plaintiff’s declaration does not raise a triable issue of disparate treatment because Plaintiff’s deposition characterized that fight as involving Josh Wynn’s defense of another person, with the deposition testimony taking precedence. (Benavidez, supra, 71 Cal.App.4th 853 at p. 860.) In turn, the quoted language from paragraph 15 of Plaintiff’s declaration—“numerous crew members were involved in verbal and physical altercations with customers” and “[t]hose employees were always protected and were not written up or reprimanded”—is conclusory as to disparate treatment (not many details amounting to conclusion of disparate treatment), for which reason it does not raise a triable issue for summary adjudication purposes. (Sinai Memorial, supra, 231 Cal.App.3d at pp. 196-197; accord. Moua, supra, 228 Cal.App.4th at pp. 116-117.)

Two other portions of Plaintiff’s evidence—declarations from former coworkers—also show evidence relating to the fight in the parking lot, with one declaration noting the fight and lack of subsequent discipline but not giving context to the reasons for the altercation (Opp’n, Comp. Evid., Ex. 13, Zepeda Decl., ¶ 9), and the other declaration agreeing with Plaintiff’s description of events that the fight took place in the parking lot based on the customer harassing another Trader Joe’s employee, with Josh Wynn being Caucasian (Opp’n, Comp. Evid., Ex. 14, Vaca Decl., ¶ 7.)

However, these declarations do not raise triable issues of disparate treatment because the evidence is insufficient to show, for summary adjudication purposes, that Mate Josh Wynn actually violated Trader Joe’s policy as opposed to defending a fellow co-worker who, by Plaintiff’s own deposition, was being harassed by a drunk Trader Joe’s customer.

The Vaca declaration otherwise provides that Loren Vaca saw her “co-worker Victor Carranza … have negative altercations with aggressive customers where he was the aggressor and at times kick them out of the store,” that “Victor was not terminated for these actions,” and that “Victor was not black.” (Opp’n, Comp. Evid., Ex. 14, Vaca Decl., ¶ 7.) This evidence is more suggestion of a pattern of discrimination against black individuals but fails to raise a triable issue as to pretext due to lack of credible evidence for a causal connection between Plaintiff’s termination and Trader Joe’s treatment of Victor Carranza. There are no specifics given as to what was said by each party in those other alleged incidents, and thus the Court cannot determine whether these incidents were in fact similar to what occurred here. This evidence alone does not amount to a general pattern and practice of racial discrimination for summary adjudication purposes because it does not show, beyond mere speculation, “that [Trader Joe’s] employment decision was premised upon an illegitimate criterion.” (Arteaga, supra, 163 Cal.App.4th at p. 353; see Cucuzza, supra, 104 Cal.App.4th at p. 1048 [“‘[S]peculation cannot be regarded as substantial responsive evidence.’ [Citation.]”]; Sinai Memorial, supra, 231 Cal.App.3d at pp. 196-197 [“An issue of fact … is not created by ‘speculation, conjecture, imagination or guess work’ … or ‘cryptic, broadly phrased, and conclusory assertions’ [citation], or mere possibilities [citation] …”].)

I.A.9. Pretext Based on Proximity in Time

Plaintiff’s last argument for pretext is that the proximity in time between the conduct described in Sections I.A.1 to I.A.8. above and her termination in February 2021 show pretext in her termination of employment. (Opp’n, pp. 15-16, citing Opp’n, Sep. St., AMF Nos. 9-25, 27, 30, 31, 37-41.) However, “temporal proximity alone is not sufficient to raise a triable issue as to pretext once the employer has offered evidence of a legitimate, nondiscriminatory reason for the termination. [Citations.]” (Arteaga, supra, 163 Cal.App.4th at p. 353.) This is particularly so given the conclusory nature of Plaintiff’s alleged “complaints” and the speculation as to what the employer knew or thought about her upcoming pregnancy leave. The Court has discussed the other grounds for pretext and found that they fail to raise triable issues of material fact as to pretext (see Sections I.A.1 to I.A.8 discussions).

Thus, The Court thus finds that Plaintiff’s cited evidence does not carry her burden on summary adjudication of the first cause of action.

I.A.10. Pretext Conclusion and Notes

Because Trader Joe’s carried its burden of showing no triable issues of material fact as to a legitimate, nondiscriminatory (and non-retaliatory) reason for Plaintiff’s termination, and because Plaintiff failed to raise triable issues as to pretextual termination, the Court GRANTS summary adjudication of the Complaint’s first cause of action, as based on all protected characteristics stated in that claim.

II.

Summary Adjudication, Complaint, Fifth Cause of Action [Retaliation in Violation of the FEHA]: GRANTED.

“[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 [internal citations omitted].) “Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation ‘“‘drops out of the picture,’” and the burden shifts back to the employee to prove intentional retaliation.” (Ibid.) “A plaintiff … need only prove that a retaliatory animus was at least a substantial or motivating factor in the adverse employment decision” to prevail on her claim. (George v. California Unemployment Ins. Appeals Bd. (2009) 179 Cal.App.4th 1475, 1492.)

II.A. Issue No. 8: FEHA Retaliation

The Court adopts its discussion in Section I.A. above to find that Trader Joe’s has shown no triable issues as to a legitimate, non-retaliatory reason for terminating Plaintiff’s employment and that Plaintiff has failed to raise triable issues of material fact exist as to whether Plaintiff was pretextually terminated, for which reason summary adjudication of the Complaint’s fifth cause of action is GRANTED. (See Mot., p. 19 [adopting discrimination discussion of legitimate termination reason for retaliation claim]; Opp’n, pp. 10-16 [discussing discrimination and retaliation together under the same arguments].)

III.

Summary Adjudication, Complaint, Third Cause of Action [Failure to Accommodate in Violation of the FEHA]: GRANTED.

Government Code section 12940, subdivision (m) makes it unlawful for “an employer or other [covered] entity … to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee.” A claim for failure to accommodate requires a showing that (1) plaintiff had a disability, (2) the employer was aware of the alleged disability, and (3) failed to make a reasonable accommodation for plaintiff. (Gov. Code, § 12940, subd. (m).) Generally, “[t]he employee bears the burden of giving the employer notice of the disability. [Citation.]” (Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1222.)

III.A. Issue No. 6: Failure to Accommodate

The Complaint’s third cause of action alleges that Plaintiff was disabled or perceived to be disabled and that Trader Joe’s failed to accommodate Plaintiff pursuant to the FEHA “by refusing to provide a reasonable accommodation for Plaintiff’s disability,” i.e., “Defendant [Trader Joe’s] knew Plaintiff would soon need a reasonable accommodation in the form of pregnancy-related leave of absence” and nevertheless “terminated Plaintiff’s employment just before the point in her pregnancy where she needed to implement accommodations, on or about February 12, 2021.” (Complaint, ¶¶ 44-45.)

In its motion, Trader Joe’s argues that no triable issues of triable fact exist as to this claim because Plaintiff was accommodated for her 2017-2018 pregnancy and because Plaintiff never requested any accommodations for her 2020-2021 pregnancy. (Mot., pp. 20-22.)

III.A.1. 2017-2018 Pregnancy

The Court notes no triable issues exist as to failure to accommodate the 2017-2018 pregnancy.

As a matter of law, prior to January 1, 2020, the FEHA required claims to be brought within one year of the alleged unlawful practice. (Gov. Code, § 12960, former subd. (d) [pre-2021, before AB 9 modification]; see Pollock v. Tri-Modal Distribution Servs., Inc. (2021) 11 Cal.5th 918, 931 [“At the time of the alleged misconduct here, the FEHA provided that no administrative complaint alleging a violation of its provisions could be filed with the DFEH ‘after the expiration of one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred.’ (§ 12960, former subd. (d).) The current statute uses virtually identical language but allows for a period of three years. (§ 12960, subd. (e).) This requirement is ‘[t]he statute of limitations for FEHA actions.’ (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 811[] ….)”].)

Any failure to accommodate in 2018 would have necessarily expired prior to Plaintiff’s February 22, 2022 DFEH Complaint with the Civil Rights Department. (Mot., Comp. Evid., Davoudian Decl., ¶ 3, Ex. B, DFEH Complaint, cited in Mot., Sep. St., UMF No. 53; see also Mot., pp. 13-14 [making this argument against pregnancy discrimination claim].)

Plaintiff’s opposition does not contend otherwise. (See Opp’n, p. 17 [“While Defendant’s first failure (which occurred in 2017[] and should be undisputed) might be time barred …”].)

III.A.2. 2020-2021 Pregnancy

 In support of summary adjudication of the failure to accommodate claim, as it relates to the 2020-2021 pregnancy, Trader Joe’s argues that Plaintiff has admitted in her deposition testimony to never submitting medical notes to Trader Joe’s asking for changes to her job duties, that Plaintiff’s doctor never gave her a note for light-duty work, and that Plaintiff never requested FMLA or CFRA leave from Trader Joe’s prior to her termination. (Mot., p. 21, citing Mot., Sep. St., UMF Nos. 46-48.) Trader Joe’s also cites to authority that employers cannot be expected to read and employee’s mind but rather, that the employee must make a request for accommodation. (Mot., pp. 20-21, citing Featherston v. S. California Permanente Med. Grp. (2017) 10 Cal.App.5th 1150, 1166-1167 & Gov. Code, § 12945, subds. (a)(3)(A)-(C).)

A review of this evidence and authority carries Trader Joe’s burden on summary adjudication of the third cause of action insofar as it relates to failure to accommodate the 2020-2021 pregnancy.

Generally, “[t]he employee bears the burden of giving the employer notice of the disability. [Citation.]” (Raine v. City of Burbank, supra, 135 Cal.App.4th at p. 1222.) Trader Joe’s evidence shows that Plaintiff testified that she did not communicate the need for accommodations to Trader Joe’s. (Mot., Sep. St., UMF Nos. 46-48, citing Mot., Comp. Evid., Davoudian Decl., Ex. A, Davis Deposition, 154:15-25 [no medical note submitted to Trader Joe’s], 235:3-10, 236:21-24 [Plaintiff’s doctor did not issue note for light duties], 154:20-25 [Plaintiff failed to request leave].)

In opposition, Plaintiff points to AMF Nos. 9-25 and cites case law for the proposition that a duty to accommodate is continuous. (Mot., pp. 16-17.)

The Court’s review of the AMFs, however, shows that they do not deal with any request for accommodations for the 2020-2021 pregnancy.

A review of Plaintiff’s AMFs, however, shows that AMF No. 36 cites Plaintiff’s own deposition for the purpose of showing that Plaintiff informed Pamela McPherson of the need for upcoming pregnancy disability and accommodations while working. (Opp’n, Sep. St., AMF No. 36, citing Opp’n, Comp. Evid., Ex. 15, Davis Deposition, 155:2-22.) However, the evidence shows that Plaintiff testified to telling Pamela McPherson of her pregnancy at the end of 2020 and to discussing job modifications with McPherson, including leave (changing the schedule) to “accommodate [Plaintiff] and … work around certain [unspecified] things,” which gave Plaintiff the impression that “[Pamela McPherson knew [that Plaintiff] was going to have to take time off and probably do lighter work.” (Opp’n, Comp. Evid., Ex. 15, Davis Deposition, 155:2-22 [emphasis on “impression”].) Such evidence involves a speculative and conclusory showing of Plaintiff’s communication of a need for accommodations, which is insufficient to raise a triable issue of material fact as to failure to accommodate that pregnancy. (Cucuzza, supra, 104 Cal.App.4th at p. 1048 [“‘[S]peculation cannot be regarded as substantial responsive evidence.’ [Citation.]”]; Sinai Memorial, supra, 231 Cal.App.3d at pp. 196-197 [“An issue of fact … is not created by ‘speculation, conjecture, imagination or guess work’ … or ‘cryptic, broadly phrased, and conclusory assertions’ [citation], or mere possibilities [citation] …”].) To the extent that Plaintiff’s declaration advances the position that she did request accommodations from Pamela McPherson (Opp’n, Comp. Evid., Ex. 11, Davis Decl., ¶ 27), this evidence is contradicted and superseded by the deposition testimony discussed above (Benavidez, supra, 71 Cal.App.4th at p. 860).

The Court briefly notes, arguendo, that it also had concerns as to whether Plaintiff has shown that her pregnancy rendered her disabled for FEHA purposes. “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.” (Cal. Code Regs., tit. 2, div. 4.1, ch. 5, subch. 2, art. 6, § 11035, subd. (f); see Mot., p. 14 [making this argument]; Opp’n, pp. 10-20 [failing to rebut this argument].) Here, Trader Joe’s evidence shows that Plaintiff did not present or receive a doctor’s note limiting her work duties because of some inability to perform such duties. (Mot., Comp. Evid., Davoudian Decl., Ex. A, Davis Deposition, 154:15-25 [no medical note submitted to Trader Joe’s], 235:3-10, 236:21-24 [Plaintiff’s doctor did not issue note for light duties], 154:20-25 [Plaintiff failed to request leave].)

Summary adjudication of the Complaint’s third cause of action is thus GRANTED.

IV.

Summary Adjudication, Complaint, Fourth Cause of Action [Failure to Engage in the Good Faith Interactive Process in Violation of the FEHA]: GRANTED.

Government Code section 12940, subdivision (n) requires employers to engage in a good faith interactive process to determine effective reasonable accommodations, if any, “in response to a request for reasonable accommodation by an employee … with a known physical or mental disability ….” (Raine v. City of Burbank, supra, 135 Cal.App.4th at p. 1222.) A claim for failure to engage in a good faith interactive process must allege facts to support a finding that (1) plaintiff suffered from a disability, (2) the employer was aware of the alleged disabilities, and (3) the employer failed to engage in a good faith process to identify reasonable accommodations for the Plaintiffs. (See Gov. Code, § 12940, subd. (n).) Generally, “[t]he employee bears the burden of giving the employer notice of the disability. [Citation.]” (Raine v. City of Burbank, supra, at p. 1222.)

IV.A. Issue No. 7: Failure to Engage

The Complaint’s fourth cause of action alleges that Trader Joe’s “violated Government Code section 12940(n) by failing to engage in a timely and good faith interactive process with Plaintiff” when Trader Joe’s instead “terminated” “Plaintiff’s employment.” (Complaint, ¶ 55.)

In its motion, Trader Joe’s argues that no triable issues of material fact exist as to this claim because Plaintiff was accommodated for her 2017-2018 pregnancy and because Plaintiff never requested any accommodations for her 2020-2021 pregnancy. (Mot., pp. 20-22.)

The Court adopts its discussion in Section III.A.1. to determine that no triable issues of material fact exist as to failure to engage in the interactive process for the 2017-2018 pregnancy because any such claim would be time-barred.

The Court also adopts its discussion in Section III.A.2. to determine that because no triable issues of material fact exist as to whether Plaintiff requested accommodations related to her 2020-2021 pregnancy, no triable issues of material fact exist as to whether Trader Joe’s needed to engage in an interactive process related to that pregnancy.

Summary adjudication of the Complaint’s fourth cause of action is thus GRANTED.

V.

Summary Adjudication, Complaint, Second Cause of Action [Interference with Pregnancy Disability Leave Law in Violation of the FEHA]: GRANTED.

The FEHA makes it unlawful for an employer to “interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided under … section [12945 of the FEHA].” (Gov. Code, § 12945, subd. (a)(4).) An employee who has a disability related to her pregnancy or the birth of her child can receive up to four months of pregnancy leave while that disability continues, as long as certain requirements are met. (Gov. Code, § 12945, subd. (a)(1).) Section 12945 does not “affect any other provision of law relating to sex discrimination or pregnancy, or in any way to diminish the coverage of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth under any other provision of [the FEHA], including subdivision (a) of Section 12940.” (Gov. Code, § 12945, subd. (b).)

V.A. Issue No. 5: Interference with Pregnancy Leave

The Complaint’s fourth cause of action alleges that Trader Joe’s was aware of Plaintiff’s pregnancy-related disability or perceived her to be so disabled and interfered with Plaintiff’s pregnancy-related leave of absence by terminating her employment. (Complaint, ¶ 37.)

The Court adopts its discussion in Section III.A.1. to find that no triable issues of material fact exist as to interference with Plaintiff’s 2017-2018 pregnancy leave because any such claim would be time-barred.

The Court also adopts its discussion in Section III.A.2. to find that because no triable issues of material fact exist as to Plaintiff ever requesting pregnancy leave, no triable issues of material fact exist as to a violation of section 12945. Otherwise stated, because no triable issues remain as to whether Plaintiff actually requested pregnancy leave based on her 2020-2021 pregnancy, no triable issues remain as to whether Trader Joe’s interfered with a request for pregnancy leave in 2021.

Summary adjudication of the Complaint’s fifth cause of action is thus GRANTED.

VI.

Summary Adjudication, Complaint, Sixth Cause of Action [Failure to Prevent/Remedy Discrimination and/or Retaliation]: GRANTED.

Government Code section 12940(k) provides that it is an unlawful employment practice “[f]or an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” (Gov. Code, § 12940, subd. (k).) To establish this claim, a plaintiff must establish the defendant’s legal duty of care, breach of duty, legal causation, and damages to the plaintiff. (See Trujillo v. North County Transit District (1998) 63 Cal.App.4th 280, 286-287.)

VI.A. Issue No. 9: No Stand-Alone Foundational FEHA Claim

The Complaint’s sixth cause of action alleges failure to prevent FEHA discrimination and/or retaliation based on the conduct supporting the first six causes of action. (Complaint, ¶ 73.)

Because the Court has found no triable issues of material fact exist as to any of the FEHA claims (see discussions at Sections I-V supra), no triable issues of material fact exist as to failure to prevent such statutory violations.

Summary adjudication of the Complaint’s sixth cause of action is thus GRANTED.

VI.B. Issue No. 10: Maintenance and Enforcement of Anti-Discrimination and -Retaliation Policies

This issue is mooted by the Court’s determination in Section VI.A. above.

VII.

Summary Adjudication, Complaint, Seventh Cause of Action [Wrongful Discharge in Violation of Public Policy]: GRANTED.

“The elements of a claim for wrongful discharge in violation of public policy are (1) an employer-employee relationship, (2) the employer terminated the plaintiff’s employment, (3) the termination was substantially motivated by a violation of public policy, and (4) the discharge caused the plaintiff harm.” (Yau v. Allen (2014) 229 Cal.App.4th 144, 154.)

VII.A. Issue No. 11: Wrongful Discharge

The Complaint’s seventh cause of action alleges wrongful discharge based on the conduct supporting the first six causes of action (FEHA violations). (Complaint, ¶ 73.)

Because the Court has found no triable issues of material fact as to the Complaint’s first six causes of action, the Court finds no triable issues of material fact remain as to the wrongful discharge claim, which, as pleaded, is derivative of liability for the Complaint’s first six causes of action.

Summary adjudication of the Complaint’s seventh cause of action is thus GRANTED.

VIII.

Summary Adjudication, Complaint, Eighth Cause of Action [Intentional Infliction of Emotional Distress]: GRANTED.

“A cause of action for intentional infliction of emotional distress exists when there is ‘(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.’ A defendant’s conduct is ‘outrageous’ when it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ And the defendant’s conduct must be ‘intended to inflict injury or engaged in with the realization that injury will result.’” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-51].)

VIII.A. Issue No. 12: Intent for IIED Purposes

This issue is mooted by the discussion in Section VIII.C. below.

VIII.B. Issue No. 13: Extreme and Outrageous Conduct for IIED Purposes

This issue is mooted by the discussion in Section VIII.C. below.

VIII.C. Issue No. 14: California Worker’s Compensation Act

The most common defense to an aggrieved employee’s claim of emotional distress is that the claim is subject to the exclusive remedy provision of the workers’ compensation law under Labor Code section 3602. (See Shoemaker v. Myers (1990) 52 Cal.3d 1, 25.) The worker’s compensation exclusivity rule holds that emotional distress caused by the employer’s conduct in employment actions involving termination, promotions, demotions, and criticism of work practices, negotiations as to grievances, etc., is not actionable so long as they are “a normal part of the employment relationship.” (See Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 160.) The rule, however, does not bar a suit for emotional distress damages resulting from sexual harassment, unlawful discrimination, or other misconduct that “exceed[s] the normal risks of the employment relationship.” (Livitsanos v. Superior Court (Continental Culture Specialists, Inc.) (1992) 2 Cal.4th 744, 756 [emotional distress resulting from employer’s defamation and harassment].)

Here, the Court adopts its discussion in Sections I to II above to find that because no triable issues of material fact exist as to whether Plaintiff was terminated based on a legitimate, non-discriminatory reason for termination, any IIED claim could not be based on conduct prohibited by the Fair Employment and Housing Act, and thus there is no triable issue as to whether Plaintiff’s termination was “a normal part of the employment relationship.” (Cole, supra, 43 Cal.3d at p. 160.)

Summary adjudication of the Complaint’s fifth cause of action is thus GRANTED.

IX.

Summary Adjudication, Complaint, Claim for Punitive Damages: GRANTED.

“In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” (Civ. Code, § 3294, subd. (a).) 

When the defendant is a corporation, ‘[a]n award of punitive damages … must rest on the malice of the corporation’s employees’” specifically, “the oppression, fraud, or malice perpetrated, authorized, or knowingly ratified by an officer, director, or managing agent of the corporation,” where a managing agent “include[s] only those corporate employees who exercise substantial independent authority and judgment in their corporate decisionmaking so that their decisions ultimately determine corporate policy.’” (Wilson v. Southern California Edison Co. (2015) 234 Cal.App.4th 123, 164, citations omitted.) 

IX.A. Issue No. 15: Punitive Damages Grounds

Because the Court has found that no triable issues of material fact exist as to any of the eight claims pleaded in Plaintiff’s Complaint (see discussions at Sections I to VIII supra), the Court finds that no triable issues of material fact exist as to Plaintiff’s claim for punitive damages.

Summary adjudication of the Complaint’s punitive damages prayer is thus GRANTED. 

Conclusion

Defendant Trader Joe’s Company’s Motion for Summary Judgment or, in the Alternative, Summary Adjudication is GRANTED as to summary adjudication of the eight causes of action and prayer for punitive damages alleged in the Complaint.

Specifically, the motion is GRANTED as to Issue Nos. 1-9, 11, and 14-15, which MOOTED a determination on Issue Nos. 10 and 12-13.